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ALTERATIONS TO THE RIGHTS OF OTHERS;
CONSEQUENT OBLIGATIONS AND
MODIFICATIONS OF MUTUAL RIGHTS

1704. We shall first deal with the right to defence, which we have to distinguish from that of satisfaction.

1705. It is clear that the right to defence is exercised either before the sphere of our rights is invaded or during the act of invasion. Our right to satisfaction on the other hand is present only after the sphere of rights has been invaded, and injury and harm inflicted. Defence aims at preserving our rights safe from threatened and feared offences; satisfaction, at ensuring amends for offences inflicted.

1706. We have to begin our study of the right to defence by analysing this right. Analysis indicates two parts to the right: on the one hand, we have simple defence of rights under attack without harm to others; on the other, harm to others when defence of our rights is necessary. These are quite different things.

We have, therefore, to answer two questions:
1. Can we defend our rights with force?
2. Can we defend our rights to the extent of inflicting harm on others when defence is otherwise impossible?

1707. The ethical foundation of the right to defence can only be the law of justice.

1708. Fact is not right. Right in its formal part(499) pertains to the order of possibilities, and consequently to the order of idealities, as law does; fact pertains to the order of realities. We have to find, therefore, the idea, the moral law, which justifies self-defence, and thus show how defence obtains the nature and dignity of right. Obviously, the source of this nature cannot be other than the law which justifies and protects it. This law, applied to self-defence, becomes the form of the right to defence. It is equally clear, therefore, that authors who deal with such right without showing how it receives its being from the moral law take as their object only the material part of defence and neglect the formal part.

1709. Ethical law has therefore to justify two things in the right of defence: defence itself, and any harm to our fellows resulting from necessary self-defence.

Defence of a right, carried out with the use of force, is inherent to the right that is being defended. As we saw, defence is nothing more than a function of right.(500) The law which justifies, protects and informs right, also authorises its defence.

This law, which recognises in the personship of the human being a lawful, inviolable subject of rights, permits a person to employ all his forces in the exercise of the rights he has. But because this person has physical as well as intellectual force, such permission is equivalent to permitting coercion, which is simply the use of these forces to maintain right.

1710. But what kind of ethical law enables us to justify and authorise the harm caused to others on the occasion of necessary defence of one's own right? Can this harm be caused even in the case of harmless persons? We shall answer these questions first by examining the harm that can be done to the unjust offender when it is necessary to repel the attack made on our rights; and then by deciding if, as a result of the same necessity, harm can be caused to others who do not act unjustly in our regard.

1711. The harm inflicted upon an unjust intruder by the need to defend our rights is justified by the law of penal justice which states: `Whoever willingly causes evil must bear the penalty'; in other words, `Moral evil and eudaimonological evil have to be balanced', just as moral good and eudaimonological good have to be balanced in the same subject.

The person who attacks others' rights 1. is the willing cause of the moral evil that he commits; and, 2. if the attack succeeds, the willing cause of the physical evil undergone by the innocent person who has experienced the attack.
Consequently the innocent victim who defends his right by inflicting necessary harm on the aggressor (that is, the harm needed to safeguard his right) fulfils the general law of justice which declares that an individual who does evil deserves punishment. Self-defence makes the victim himself a minister of justice. When unjust aggression brings matters to such a term that some harm is inevitable, all that remains is to decide whether the guilty or the innocent should suffer. Justice requires that the guilty author of such a collision should suffer its effects. As a result, this person must impute to himself the harm that is inflicted upon him.

1712. If we wish to call penal Right the right to inflict merited punishment, we shall find that the right to defence, where it includes the right to cause necessary harm to a guilty attacker in one's own defence, is simply a branch of penal Right. This Right finds in self-defence an occasion or opportunity to be activated, in so far as the infliction of just punishment becomes a condition attached to the exercise of the right of defence.

1713. However, penal Right, considered simply as a complex of laws prohibiting certain injurious actions by the sanction of determined punishments, or as the power to inflict these punishments, clearly has no further place in the state of nature. According to this meaning, penal Right is simply a production of a society in which people unite and consent to the establishment by government of such laws and punishments.(501)

1714. Taken in this sense, Romagnosi is correct when he states: `Penal Right is simply the right to defence,(502) modified by social circumstances.(503)

1715. But it is not true that the right to defence is limited in the state of nature only to the act of intrusion or attack upon another's right. It is certain that in such a state the human being cannot make true penal laws because the power to establish morally obliging laws supposes the existence of subjects, and superiority on the part of the legislator. It is clear, however, that even in the state of nature there are cases where the human individual can

1. defend himself against aggression when it is already under way;
2. defend himself against attack and preparations for attack on the part of unjust enemies seeking to assail him;
3. take precautions against future, probable offences in the manner and under the conditions we shall describe;
4. inflict correctional punishment or chastisement upon the offender to deter him from repeating the same offences in the case of a habit or some habitual, evil disposition;
5. deter others and make himself respected, if the offence is serious, by inflicting upon persons attacking his rights a severe, just punishment as an example to others, provided the deterrent is necessary for holding others in check and making them desist from their desire to impose harm upon him;
6. issue decrees and establish norms when he knows that he possesses sufficient force to make them prevail, provided they conform to natural law, according to which he attaches certain punishments to actions or attacks injurious and harmful to him.

1716. These norms and punishments, when intimated and threatened by a just, powerful individual against individuals co-existing but not associating with him, correspond if considered in their positive nature to so-called merely penal laws. If considered as faithfully enunciated expressions or determinations of the Right of nature, they have a genuinely obligating value.(504)

1717. 7. Finally, the individual can also do for others what he does in the state of nature for his own defence, provided he never exceeds the law of justice.

1718. Before moving ahead with our study, I would like to reflect on the lex talionis, examining it as the means used by many ancient legislations to actuate in society the Right to defence, or civil, penal Right. Several modern authors have objected to this law. Realising that the harm inflicted on others in self-defence must not exceed what is absolutely necessary to defend one's own rights, they condemned the lex talionis as an excessive, disproportionate measure for effecting necessary self-defence.

1719. This judgment, however, depends on the false supposition that the lex talionis is simply the right of defence determined quantitatively by public law. In fact, the lex talionis is related to penal right in general; it is not a special actualisation of penal right called the right of defence, or better the right to inflict punishment in order to defend oneself.

1720. Taken in its simplest form, penal Right has as its base the eternal principle of justice which requires `moral evil to be balanced by eudaimonological evil, and moral good by eudaimonological good.' It is clear that this principle is deeply impressed in the minds of all peoples. It is found at the base of all legislations and forms part of the conscience of mankind.

1721. The lex talionis determines and applies in an approximate, general way the principle of penal Right, which declares as just that a person perpetrating an evil against his fellow should experience the same evil. This rule is a consequence of the natural dictate: `Do to others what you would want done to yourself; do not do to others what you would not want done to yourself.' Whoever breaks this precept exposes himself to receive as much as he has given; we can only expect that others, all of whom are equal to ourselves, should treat us as we have first treated them. According to the universal law of natural justice, we have no right beyond this.

1722. Here two questions arise: 1. Can an individual in the state of nature make himself the executor of penal law beyond what is required for self-defence, and go so far as to inflict on others the lex talionis? 2. Can civil society do the same?

1723. It is clear from what has been said that the lex talionis can be considered under two different aspects: either simply as a norm according to which penal justice can be carried out; or as a means of defence for the individual and society (that is, as an exemplary punishment which cannot be more suitably replaced).

1724. If we consider this law simply as a norm directing the execution of penal justice, we are immediately faced with the question we have posed: `Can human beings (an individual, or society) be the minister of penal justice relative to another human being?' Those who say `No', reason that one human being can never judge another because all human beings are equal, and judgment, they say, is proper to a superior, just as being judged is proper to an inferior.

1725. Careful examination of this argument shows its weakness. It is not true that judgment is proper to a superior alone; rather, judgment is proper to a person with the understanding necessary to judge. If, in fact, a superior existed who were not intelligent enough to judge according to the truth, he should abstain from judging; if there were an inferior intelligent enough to judge according to the truth, he should have the right to judge. After all, judgment is simply an act of reason.

1726. But do human beings know how to judge others?
First, it is certain that human beings do not always know how to judge faults in others. In these cases an indispensable condition for the application of punishment is lacking, and neither the individual nor still less civil society can exercise the Right to punish.

1727. Second, very many degrees of blameworthiness (degrees dependent upon profound, internal dispositions of spirit) remain unknown to human beings. Consequently neither the individual nor civil society has sufficient knowledge to balance punishment against fault. Such knowledge is proper to him who `tries the minds and hearts'. Neither the individual nor society can ever fully exercise penal Right.

1728. Third, it is certain that human beings (individuals and society) can possess sufficient proof to generate jural certainty of the existence of some crime and fault. Such proof is taken from confessions or statements on the part of the guilty person, and from two or three eye-witnesses. Although we cannot uncover all the degrees of fault, which depend upon interior, hidden and uncommunicated or incommunicable dispositions of spirit in the guilty person, we can, once the existence of internal fault has been ascertained, uncover those degrees of fault revealed through the quantity of criminal action. And punishment can justly be applied in accordance with this quantity.

1729. This is in fact the foundation of the lex talionis. When the existence of a crime has been verified (without reference to the degrees of fault arising from hidden dispositions), the lex talionis, and indeed all penal laws we may say, comes into being to apply the punishment according to the degrees exhibited in the external quantity of harm.

1730. This is enough to show that relative to the condition of necessary knowledge, some penal Right can be exercised justly, although not completely, by human beings.

1731. It is not correct to object that crime could be punished disproportionately if internal, hidden dispositions, which cannot be calculated, are neglected, because some of these internal dispositions could considerably attenuate the fault. Granted that penal Right is concerned with mere justice, such an objection fails to consider that external, physical punishment never balances moral fault. Punishments, therefore, can only be less than deserved in relationship to justice, not more.

1732. Nevertheless, we must note carefully that nothing said so far proves that human beings have the right to punish fault. It only proves that in certain cases we have sufficient knowledge to apply to a fault a punishment which is not greater than justice requires and which, although imperfect in proportion to the fault, is proportioned to its external degrees. We must therefore ask once more if human beings have the right to exercise penal justice within certain limits. This is the question we still have to solve.

1733. We can be moved to inflict punishment on our guilty fellow-creatures by four principles which produce a fourfold division in the question we have posed. We can be moved to punish human crime:

1. By mere love of objective justice. As intellective, moral beings we naturally want and desire justice not to be injured or, if injured, to be restored and vindicated.
2. By self-love, when the offender's action is turned against us. This is the origin of the rights of defence and satisfaction.
3. By love of our fellows, when the offensive action is turned against our fellows. This is the origin of our right to come to the defence of others, and constrain the offender to render just satisfaction.
4. By zeal, that is, by love of God, in cases where injury is inflicted or an attempt is made to inflict injury on God. Love of God, which is a natural conclusion of our desire to see God acknowledged, loved and honoured by all intelligent creatures, enkindles a most just zeal against those who impede it through their own fault or act contrary to the honour owed to God.

1734. We have already spoken about the first and fourth cases when we dealt with innate rights (cf. 141-238). What we said can be summarised as follows:

1. It cannot be maintained that we act unjustly if, in cases where we are able to pronounce a certain judgment on the guilt of actions, we vindicate the fault through pure love of justice in itself and of the honour due to God.

2. An inclination to justice exists within human beings which brings them in fact to punish guilty actions (demonstration of human instinct), especially those actions which injure the honour owed to God. Because this inclination tends towards what is just, it would seem to take its place amongst the inclinations forming the roots of natural rights.

3. However, human beings can easily abuse this tendency. Every time we judge rashly and consequently inflict unjust punishments, or are moved by individual passions, we render ourselves guilty and unjust. In this case, our activity goes completely beyond the terms we have proposed.
The extraordinary ease with which we exceed these terms, granted humanity's present state after its original fall, forces us to conclude, even for this reason, that there are very few cases in which human beings in the state of nature can exercise this right of penal justice without fear of error.

1735. If, after the fall, people had acted simply according to their great sense of penal justice, they would probably have brought mankind to disaster, or even destroyed it altogether. Reasonable beings have a natural persuasion that corporal punishment of any kind is insufficient to castigate infractions of justice, especially if the injustice is directed against God. Such a state would have prompted mankind to have recourse to the death penalty for all crimes. In fact, this is the position taken by and easily observed in the oldest legislations, all of them written in blood.

1736. God, however, who unites mercy with justice, came to the aid of humanity, which would have succumbed before such an evil. At the very beginning of the world, he forbade capital punishment, even in the case of murder. Cain's words: `Whoever finds me, will slay me',(505) were the voice of human nature which sensed keenly the instinct and necessity of penal justice. But God opposed that fearful penal right with his own positive law of piety and grace when he said: `If anyone slays Cain, vengeance shall be taken on him sevenfold.' (506)

Scripture goes on to say that God put a mark on Cain so that he might not be killed by anyone who found him. Some mark was needed in order to save the fratricide's life; without it, no one in that first period of time would have hesitated to carry out the just, obligatory work of mortal retribution. By setting his positive law in opposition to the natural law, and his goodness and mercy against naked, human justice, God tempered and limited such a dangerous right of nature from the beginning. Lamech himself took refuge in the benign, divine decree after his angry slaughter of a young man. The feeling of justice inserted in his heart gave rise to a great fear for his own life, even at the hands of his wives for whom he composed the verses:

`If Cain is avenged sevenfold,
truly Lamech seventy-sevenfold.' (507)

1737. Finally, as mankind and society continued to develop, divine revelation increased and reached its zenith with the incarnate Word of God. At this point, the practical execution of the right to punish, as such, was taken away from human beings completely and reserved to God alone. Indeed, perfect faith, such as that possessed by the Christian, persuades people that God unfailingly and fully punishes all injustices in the way best suited for the greater good of mankind (by bringing mercy and truth together in the kiss of peace), and at the right moment. It is impossible for anyone with this kind of faith to want to take upon himself the responsibility of vindicating offended justice. In fact, he could not do this lawfully without contradicting his faith if love of justice alone were directing him in this matter. The merely natural right of punishment cannot be exercised today by a Christian to his good fortune unless he is stimulated to do so by some extraordinary movement of the divine spirit itself.

1738. We still have to speak, however, of the second and third cases we have mentioned. The second case deals with what, according to natural Right, an individual can doagainst someone who offends him. Here three rights have to be examined: the right to retaliation, the right to defence, and the right to satisfaction.

1739. What is the right to retaliation? Does it exist in the state of nature? Can it be exercised by human beings under positive revelation?
Retaliation is the punishment decreed by the law of justice when one person has offended the personal dignity of another. It concerns injury. The person injured naturally feels and requires some satisfaction or restitution of honour from the offender. When he cannot obtain this, the injured person believes that he naturally possesses a right to inflict upon the offender a punishment or dishonour equivalent to that which he has unjustly received.

1740. Considered in itself, this is just. Justice requires balance, an eternal sanction. Injured personship must be compensated with equal honour and the offender must receive equal punishment and indignity. Considering, therefore, only the intimate nature of things and of human beings, the existence of the right to retaliation is undeniable if we take our reflection no further. All the constitutive elements for such a right are present, and may be summed up under two headings:

1. a natural tendency (a branch of human instinct), obedience to which forms an eudaimonological good for human beings;
2. the justice of this tendency with which the injured person endeavours solely to re-establish the balance of justice now disturbed to the detriment of his dignity.

1741. But the third question, `Can an individual exercise such a right under positive revelation?', must be answered negatively. God positively reserved the execution of such retaliation to himself when he said: `Vengeance is mine, and recompense.' (508) God's law of perfection tempers crude right here also. The reason is clear. God has never abandoned mankind, his own work, to itself. On the contrary, he has always kept it under his own rule and, as supreme ruler, governed and continues to govern it in such a way that justice must be reconciled with mercy and goodness a reconciliation possible only to God, who intends mankind to produce that maximum of moral good (and consequently of eudaimonological good) which is the end of creation.

We have to consider carefully that natural rights, which pertain only to the class of lawful things, occupy the lowest place in the order of moral matters. Human nature, however, according to the great designs of the Creator, must be borne up to meritorious, generous and perfect matters, which occupy the highest places in the moral order. What is lawful, therefore, such as rights, must whenever required give way to the cause of virtue and of the moral perfection of the world. This was the most holy intention of God in establishing his law: VENGEANCE IS MINE.

On the other hand, moral reason itself, when it reaches a certain degree of perfection, suggests that individuals `should altogether renounce the exercise of the right to retaliation by leaving it entirely to God.' However, we cannot give ourselves such excellent advice without first firmly believing that God exists, that he is the remunerator of good and evil, and moreover that he distributes this remuneration with infinite justice, totality, wisdom and goodness. With this belief implanted in their spirit, human beings who nevertheless claim to exercise the right of naked retaliation on their own behalf and in their own favour clearly posit an immoral act against such faith. They act uselessly and unreasonably. But those who perform useless, irrational actions show that they are overly dominated and led by some blind passion. Consequently, the Redeemer's disciples are forbidden to retaliate of themselves and commanded to be meek. At the same time they are promised that God himself, who without passion acts according to holiness and justice, will avenge every injury they receive.

1742. The answers would be the same in the case of retaliation on behalf of others. In effecting such retaliation, we are dealing either with the first question about the exercise of merely penal justice if the motive is pure love of justice in general, or with the second question of retaliation in one's own cause or at least with a similar problem if the motive is some kind of affection for the person on whose behalf we are acting. In both cases, the exercise of retaliation is excluded by revelation and by the state of moral perfection in which the human race is placed by divine goodness after the coming of Christ.

1743. Defence and satisfaction, therefore, are the only cases in which the right to penal justice can be exercised by human beings. There is a problem here, however. In such cases, how is it possible to exercise the right to penal justice without conflicting with the law of the Gospel, if indeed mere penal justice or retaliation cannot be exercised unless there is call for defence or satisfaction? If God avenges, will he not also compensate the harm suffered by the offended person?

1744. In my opinion, the order of mere penal justice, when considered without relationship to real harm done to human beings, and the order of mere retaliation, are things pertaining to the internal, spiritual, invisible world. Consequently, although some disorder remains for a time in the metaphysical world, it is soon corrected, while the external, physical, visible human world is neither disturbed in its course as a result, nor less conserved. It would be different however if harm were not impeded or put right. In this case, real harm disturbs the course of the human, external world and harms its conservation. Harm, therefore, should be foreseen, repulsed or immediately put right by public authority or by anyone motivated by a spirit of humanity and charity who comes to the aid of another. It is not innocuous or indifferent for society to wait for the end of the world when the supreme Judge will restore all things to the full order of justice, although the meek, however, waiting like this on their own behalf, never lose, but gain, in accordance with the guarantee given them by God.

1745. Injuries themselves, therefore, can be prevented or willingly set right whenever they can be the cause of harm, but only to this extent and no further. In other words, in so far as they are injuries which inflict harm, not in so far as they are mere injuries. Consequently, the right to defence and satisfaction includes the jural power to self-defence against such injuries and to satisfaction for harm undergone. This power is not operative in relationship to injury in itself, but to injury in its consequences, neither more nor less. God has not reserved for himself, by means of his positive, perfect law, the exercise of the right to defence and compensation. He has left this free for human beings provided they use it in a holy way. He has however reserved entirely for himself the right to the exercise of merely penal justice, and to retaliation for injuries qua injuries.

1746. With all these things clarified, we can now go back and comment on the lex talionis, which is found in almost all ancient legislations and consecrated by the law of Moses. We can say that it was a penal law intended to defend ancient societies. There was perhaps no other law as effective as this in proposing exemplary, efficacious punishments suitable for holding back criminal impulses. The reasons for this are as follows:

1. Those primitive, undeveloped societies did not have sufficient elements for the exact calculation of criminal impulses and the quantity of repression needed to contain them. As a result such societies had to rely on experience and the good sense of the legislators, on the basis of which they guessed the measure needed. The legislators were rather like Roman architects who depended upon practical, and often imaginary data for calculating the stresses and strains on vaults, but always tended to make their structures stronger than actually necessary.

2. One well-known characteristic of effective penal law is that everyone, the guilty included, can easily come to recognise its justice.(509) But the lex talionis was universally recognised as just in virtue of the very feeling of nature. For this reason, other punishments, measured according to more complicated calculations, could not be easily understood.(510)

1747. Purely material offences are not injuries to rights; human beings are not in any way their authors. Such injuries are to be attributed to accidental factors, such as disasters, for which no one is to blame. By common consent, therefore, legislators do not prescribe any compensation for them: si res perit, domino perit. Formal offences, however, have as their cause the human beings who commit them, and compensation can be required. Material offences cannot produce either moral displeasure or reasonable resentment. It is unreasonable, for example, to be indignant with hail or with other inanimate things that harm us.

1748. But is it impossible to defend oneself when a human being acts mechanically? Must the intrusion on one's rights be tolerated in this case, or is it possible in general to harm an innocent person when self-defence requires this?

It is clear that if harm could be done to an innocent human being (which is manifestly contrary to the law of justice) to avoid harm to oneself, we would also have to ask about the limitation of such permission. A general permission would allow me to inflict any evil on others for the sake of avoiding evil to myself. But this is obviously absurd. We should, therefore, establish the contrary principle, that is, `It is never lawful to cause real harm to an innocent party in order to defend oneself from any harm whatsoever.'

1749. With this principle as our basis (a principle which I think leaves no room for doubt it was known in antiquity),(511) I maintain: 1. I can do some momentary harm to an innocent person in order to defend myself from harm threatened by individuals or things, provided that such harm is indispensable for my defence and that I can compensate, as I am strictly obliged to do, the harm I inflict. In this case, I do not in fact harm anyone, but simply re-order the modality of their rights. I can, therefore, make use of what belongs to others, unknown to them or, in certain cases, even when they are expressly opposed to what I am doing. The latter is true, however, only when the owner evidently refuses his approval as a result of malice or simple obstinacy without any legitimate advantage to himself. It is obviously reasonable that he should, if he is suitably recompensed, put up with some momentary harm or moderate limitation of his ownership. This forms part of the moderation with which all are obliged to make use of their right of ownership. We have already seen that ownership, as right, is limited by the laws of humanity even in the state of nature,(512) and that every owner must permit some alteration to be imposed on the modality of his right when the needs of his peers require this. The only qualification to this truth is that the alteration must effect not the value, but solely the mode of the right. The mode has no intrinsic value, and is not therefore a suitable subject of right; in other words, it lacks the third constitutive element of right.(513)

1750. It cannot be said, therefore, that this way of acting produces any real harm. The harm done, and its duration, is fully compensated and cannot be considered to have caused genuine harm. It does not offend the principle we have laid down (`An innocent person cannot be harmed for our own sake'), but rather explains and illustrates it.

1751. This teaching is applicable to innocent people whether they are the unwitting cause of the harm or not.

1752. Finally, our phrasing would be more to the point if, instead of saying that we exercise our right in such a case to do harm to another for the sake of self-defence, we said that we exercise our right to make innocuous use of what belongs to another.

1753. 2. If the threatened harm to ourselves puts our life in danger, we can use other peoples' external ownership as a means to save ourselves. This seems wholly in keeping with the nature of human justice (and true justice must always be human), even though we are unable to see how compensation can later be made. However, I still have the obligation to make restitution when the opportunity occurs. In fact, if I can avoid the danger by using what is mine, I am certainly not permitted to use what belongs to another. Moreover, such temporary use of what belongs to others never makes me absolute owner of it, that is, of its value. The truth of this conclusion is obvious if we consider that external ownership, in so far as it is a right, is limited to the other's need to preserve his life.

1754. 3. The problem becomes more difficult, however, when I can only save myself from imminent harm by depriving some innocent person of life. Here, it is certain in the first place that I must put up with the harm if it is not on a par with losing my life.

1755. If my life is in danger, however, and there is no other way of saving it than through the death of an innocent person, can I save it? The answer in general is `No'. The principle we have expounded, which forbids causing harm to an innocent person as a substitute for ourselves, is absolute and, when properly understood, allows no exceptions. However, some distinctions have to be made if the principle is to be understood correctly. For instance, the cause of my mortal danger may be violence on the part of the innocent party, from which I free myself by killing him. On the other hand, the innocent person may not be a threat in any way. The first instance would be verified in the case of an attack from an armed madman; the second in the case of women and children in a narrow street whom I would have to knock down in order to escape on horseback from pursuit by bandits.

1756. In the first case, I could, if there were no other means of salvation, kill the offender despite his innocence. As Grotius observed, I am not obliged to suffer what others wish me to suffer, and can therefore repel force with force.(514) By acting like this, I am not the true cause of another's death; the offender himself is the cause. I am simply preventing him from entering the sphere of my rights by keeping him out. If he dies as a result, I neither wish nor intend his death, which indeed I deplore, but merely want to save my own life. If two innocent people, one an attacker and the other a defender, come to blows, the former is the cause of the fight, and it is just that he should suffer if one of the two has inevitably to die. Even charity in general does not oblige me to see to the preservation of his life rather than my own.

1757. I can give only a negative answer to the second case. In fact, it follows from the answer to the first case (cf. 1756) that if there were no other way of salvation,(515) the women who saw that they would inevitably die as the horse bore down on them would have the right to defend themselves and their children against the rider, whether he was culpable (if he knew what he was doing) or innocent (if in the desperation of flight he had no time to reflect and realise that he would be killing innocent, peaceful people). In clashes of this kind, the true cause of death is always the offender, that is, the first to use force to eliminate an innocent person. The use of such force has a eudaimonological end (one's own salvation), not a moral end, and is intent on moral evil (the killing of another) something which cannot be done for a eudaimonological end: `Evil is not to be done to obtain good.'

1758. We may now conclude: 1. That I can repel force with force, that is, counter one material force about to do me harm with another even though the blameless person who harms me perishes or himself remains harmed as an accidental consequence of what I do. The Right of nature gives me this protection against material force because it does not oblige me to suffer death in order to save the life of someone who puts me in danger of death. In such a case I do not defend myself against the human person, who is inoperative, but solely against material forces. I do not cause harm to the person, but accidentally harm him as a result of a combination of circumstances.(516)

1759. 2. That I can repel force even with the death of an unjust, blameworthy aggressor, if this is necessary. In this case, my action has penal justice as its ethical foundation. Such justice declares that the object of my action, that is, to inflict punishment on the blameworthy person, is just.

1760. In fact, two conditions have to be proved in order that I may do harm to a person:

a) The first is relative to the object of the action. In our case, it has to be proved, by comparing the punishment with the law of penal justice, that inflicting the punishment is just.
b) The second is relative to the subject who carries out the action. In our case the existence of the right to self-defence must be proved in order that I may have the right to inflict the just punishment.

Granted these conditions, the right to inflict punishment upon anyone guilty of attacking my rights is proved without doubt.

1761. Certain modern philosophers affirmed a useful truth when declaring that `civil society must moderate the punishments it inflicts upon criminals to what is necessary for repressing criminal activity.' In other words, we need only sufficient punishment to defend society from criminal aggression. This truth is a consequence of the teaching previously explained by us according to which the exercise of the naked right of punishment, together with retaliation, is altogether excluded. There remains (for individuals and society) no other human right to impose any punishment except that united to self-defence.

1762. But the same philosophers were in serious error when they endeavoured to eliminate totally the right to punish and thought that the right to self-defence could stand on its own, as the sole right, to which all punishments that society imposes on malefactors could be reduced.

1763. This serious error, with which they deluded themselves that they could escape from the so-called prejudices of preceding ages, depended upon a false form of argument only too familiar to them and constantly under fire from us. It runs as follows:

People (individuals and society) have the right to self-defence..
But in order to defend oneself it is sometimes necessary to cause harm or hurt to others..
Therefore people have the right in this case to cause harm to others because the person with the right to an end also has the right to the means..
The fallacy always lies in supposing that there is an unlimited right to the defence of our rights.

On the contrary, I cannot defend my rights by infraction of the rights of others if, for instance, I took the life of an innocent person, or defended myself by means of some unjust and unlawful action. In order to show that I have the moral faculty to harm a peer in self-defence, I have to show that this harm is just in itself, that is, does not contain any infraction of the rights of others I cannot do this, however, except in the cases we have mentioned, and especially in the case of a person guilty and blameworthy of the danger to which I am exposed. In other words, I have to depend on the principles of penal justice if I want to justify the harm I do to others in self-defence.

The philosophers we have mentioned vainly persuade themselves that the principles of punitive justice can be excluded from public laws for the sake of substituting an isolated, gratuitous right of defence in favour of society. If this were the case, they could never justify the punishment that society imposes for misdeeds. They would have been right however if they had limited themselves to saying what we have said, that is, `social power can exercise punitive justice only in order to defend society against evil tendencies.'

The teaching of these philosophers is not only contrary to opinions dominating in periods preceding our own barbarous periods, as they complacently call them; it is also contrary to the feeling of all the more civilised ancient nations, and of the whole of mankind which recognises as acts of justice (a phrase used in all languages) the pain and other punishments imposed on delinquents. Worst of all, this teaching is opposed to the express declarations of divine Scripture and to the way in which the Christian religion, true and meek as it is, considers the pain inflicted on the guilty.

The first letter of St. Peter, in speaking of rulers, says that they are sent by God `to punish those who do wrong'.(517) This shows that punishment properly speaking is inflicted for the sake of justice, as we may see more clearly from the next phrase: `and to praise those who do right'.(518) The author is not speaking, therefore, about a right of defence, but solely about the just retribution that serves as a defence. Likewise, according to St. Paul, the ruler is a just judge. `He is the servant of God to execute his wrath on the wrongdoer.' (519) The concept expressed by the Apostle leaves no room for doubt, especially if we consider the force of the words `servant of God' which correspond to St. Peter's `sent by God'.

As we know, judging according to justice and vindicating justice are God's prerogative. For this reason, the Scriptures consider judges, who punish the guilty as a social necessity for the defence of the innocent, as persons entrusted with a function proper to God, and consequently sharing in divine authority. This feeling for things is constant in the holy books, and explains why judges and rulers are sometimes called `gods'.(520) Psalm 81 [Douai], which describes the severe judgment God will make on wicked judges, begins: `God has stood in the congregation of gods; and being in the midst of them he judgeth gods.' According to Bossuet, these gods judged by God are the kings and judges gathered under his sceptre to exercise justice. He calls them `gods' because sacred language uses `god' as a name for `judge'; again, authority to judge is a share in the supreme justice of God, with which he has invested the kings of the earth,(521) that is, any form of government of civil society.

This does not mean that the aim and the occasion of the exercise of penal justice is other than defence against malefactors. Scripture expressly assigns the defence of civil society, and of innocent individuals too weak to defend themselves against the powerful, as the end to be attained by public punishment of guilty parties. It does not, of course, speak systematically, as philosophers do, but uses generic language which embraces equally civil association and individuals, and can be applied both to the state of society and to the state of nature. In the Psalm we have quoted, God says to the judges whom he judges: `Judge for the needy and the fatherless: do justice to the humble and the poor. Rescue the poor: and deliver the needy out of the hand of the sinner.' (522) The Apostle constantly considers as exemplary and terrifying the punishments that heads of society inflict upon malefactors. He imposes on all the duty to fear such penalties: `For rulers are not a TERROR to good conduct, but to bad . . . But if you do wrong, BE AFRAID; for he does not bear the sword of God in vain.' (523)

Scripture, therefore, teaches that the government of civil society must on the one hand exercise punitive justice, and on the other exercise it for the end expressed by the necessary defence of society and of the individual against the guilty. And this is also the conclusion of the rational theory of penal Right as we have presented it. This theory justifies the good sense of those who have gone before us on this earth.

1764. The punishment decreed by justice for fault is the ethical foundation and, therefore, the true, formal origin of the right to defence. The merely factual necessity of defending one's own right could not have originated or justified such a function (defence) apart from the law of penal justice. In fact, the real necessity of defending oneself and one's belongings against aggressors is, if we prescind from the moral law of justice, a mere circumstance bereft of the dignity of right.

1765. Those who took real necessity as the source of the right to self-defence (Romagnosi was one) have to accept that their error depends upon their assimilation of philosophical sensism. This system blinded them to the ideal order and made them conclude that everything could be found in reality alone.

1766. Necessity, therefore, does not give rise to any right; it is simply a factual circumstance contemplated by the law, and shows that the moment has come for the law's application and actuation. In other words, the function of defence comes into being.

1767. I have already distinguished law from the titles contained in law. Titles are those factual conditions in which the application of law takes place.(524) In the right to defence, the moral law, in so far as it authorises harm to others, is penal law; the title actuating this authorisation is the necessity of defending one's own right. The title to actuation has, therefore, been confused with the law, from which alone the title itself obtains its power.

1768. We note, however, that it is the title which gives the law its special or particular act, and which consequently determines the limits or measure of such actuation. Every effect, as we know, receives its measure from its cause. Hence, I `can harm the one who attacks my rights only when such harm is truly necessary for the defence of my rights. Moreover, the harm done cannot exceed this necessity.' (525)

1769. From these principles we can deduce the limits within which the exercise of the right to defence has to be contained. They spring from five sources, that is, from considering

1. the nature of the wrong-doing used to attempt intrusion into another's right;.
2. the jural-penal responsibility of the offender;.
3. the nature of the action used for defence;.
4. the necessity for defence; and.
5. the amount of attempted harm.

We must now consider the limits placed on the exercise of the right to defence by each of these five points.

1770. It seems that the right to defence cannot begin to be exercised until the criminal attempt to invade our right has actually begun. The mere thought of offending, together with any malicious feeling whatsoever, cannot give rise to the exercise of the right to defence.

1771. This principle seems universally admitted today, although it is not easy to offer clear proofs of its truth. If we say that the offensive thought remains hidden, and that punishment cannot, therefore, be applied to its author, we find that the proof is only valid for thoughts which truly remain hidden, and not for those which we come to know.

1772. Burlamacchi's appeal to the mercy which should be characteristic of penal laws(526) would simply prove that it is better to leave thoughts unpunished; it would not prove that there was no right to punish them.

1773. Romagnosi's view is also inconclusive. He opts for defence against external execution alone and maintains: `Criminal plans reduced to idle speculation and innocuous desires on the part of the imagination have no effect on the stability of the social fabric.' (527)

1774. Perhaps we should say that simple thought does not enter the sphere of my rights? But here we should distinguish two classes of thoughts. Some thoughts have wrong-doing as their object, but without relationship to the will. These are merely speculative thoughts completely devoid of guilt and not meriting punishment.

Other thoughts are blameworthy because they intend wrong-doing. If, however, the object of these volitive, practical thoughts is moral, not jural wrong-doing, they merit punishment, according to universal justice, which can be inflicted only by God, not human beings. Other volitive, practical thoughts, have as their object not only moral, but jural wrong-doing, that is, an infraction of others' rights, such as murder..
The only possible question before us, therefore, is whether individuals, and consequently society, can defend themselves against a known deliberation to carry out a crime such as murder.

1775. It is certain that there is no possibility of self-defence against John or reason to inflict punishment upon him if we are completely ignorant of his intention to murder William. It is also certain that defence would not be necessary if we come to know what John intended when he had already abandoned all idea of putting it into practice. Thirdly, it is certain that there is no point in inflicting exemplary punishment on John for a guilty thought which has already been eliminated or rendered inoperative, not only because society has no further need to defend itself against sterile thoughts, but also (and this is far more important, as we said at the beginning) because mere thought does not enter the sphere of others' rights except in their quality as injury. We have already seen, however, that simple injuries must not be punished by human beings. Such punishment would be retaliation, which has to be left to God.

1776. But if the murderous thought were still present, and known either with certainty or a high degree of probability (as a result, say, of John's manifesting the time, place and other circumstances of its execution), would this not give us the right to defend ourselves by inflicting some punishment on John, if there were no other way of self-defence?

There is no doubt that it would. Such punishment, if imposed by society, may be given various names. It may be called, for instance, policing. But whatever name is used, the penalty is always some kind of coercion or punishment by which society defends one of its members and itself against an efficacious thought or deliberation before the external wrong-doing has begun. But we cannot say that there has been some attempt at wrong-doing if by `attempt' we mean some external commencement in the fact of wrong-doing. John's simple manifestation of his notion of a planned, organised murder is not in the proper sense attempted murder, unless we wish to change the meaning of words.

I know that the police, if told in time, will take account of his plans and catch him red-handed when he appears armed at the time and place indicated. But I also know that if circumstances do not permit a person's being apprehended in this way, and there is no other means of preventing the crime, the police would have and should have no scruple about arresting someone who is certainly or probably guilty, and thus preventing him from carrying out his wicked plan. For instance, let us imagine that he wants to murder his wife with whom he lives, and that her pregnancy makes it difficult for others to inform her of his intention. In this case, the government would certainly not act unjustly by arresting the would-be murderer (although he was still only thinking about the crime), allowing his wife to think the detention sprang from some other cause, and using whatever means were necessary to foresee and block the evil project.

1777. Nevertheless, social authority, although acting justly while subjecting the guilty person to arrest (or whatever else is needed to save another's life), would no longer act justly as soon as it intended to go further and inflict an exemplary punishment on this individual, even though he were convicted of his evil plan and had confessed it. There are two reasons for this: first, the simple thought of murder without any practical effect, is an injury, but does no harm; second, exemplary punishment is not properly speaking effective when applied to thoughts alone. No one is afraid of being convicted for wicked thoughts, which we rightly think are always immune from punishment. In fact, there is nothing easier than hiding a thought which has not produced any external effect. Exemplary punishment of thoughts would have a contrary effect to that intended; it would make people more careful about concealing their evil thoughts and thus enable them to think and plan their crimes more confidently.

This, I think, is a new reason for concluding that civil legislation cannot and must not punish thoughts with what we call `exemplary' penalties.

1778. We can also deduce from what has been said that jural-penal responsibility originates with the first action that gives rise to the external commission of wrong-doing and increases until the act has been completed.

1779. The limit arising from the jural-penal responsibility of the offender is relative to that part of the right to defence which is exercised, through exemplary punishment, by a powerful individual or by society against the criminal impulse of the masses.

1780. In this way of exercising the right to defence, we have to distinguish jural-penal responsibility from moral imputation, moral responsibility and jural-restitutive responsibility.

1781. Moral imputation means the attribution of a sin, any sin, to a person who is its free perpetrator. The degree of imputation depends upon the seriousness of the sin, and on the degree of freedom in the person committing it.

1782. Moral responsibility is the degree of punishment and satisfaction that a guilty person has to undergo to pay for his wrong-doing, according to the law of eternal justice.

1783. Jural-restitutive responsibility is the degree of harm caused for which a person is held to compensate, according to the laws of jural justice.(528)

1784. Finally, jural-penal responsibility is the degree of exemplary punishment that the perpetrator of a crime must expect from society, or from a person defending himself against criminal assault.

1785. It is true that no adequate comparison can be made between a moral evil, taken singularly, and a physical evil. Consequently, physical evil can, for reasons of justice, always be increased for the guilty person without going to excess. This principle can be applied, however, only to full, eternal justice, not to that part of justice which is poured out, as it were, in the right of defence proper to an individual or society.

1786. Exemplary punishment, which has to serve as a form of defence, was measured by Romagnosi in accordance with the calculated average of criminal impulse present in society.

1787. The factual criminal impulse which moves an individual delinquent to offend is simply one element in calculating average criminal impulse. This important teaching has to be developed in Social Right. Here, we shall have to be satisfied with the following brief comments.

1788. Criminal impulse results from two elements:.
1. natural instincts, which of themselves are not vicious;.
2. malice, which abuses these instincts.

1789. Jural-penal responsibility varies properly speaking in proportion to the second element and its effects, not to the first. Consequently, different criminal legislations have rightly taken into consideration age, sex, and circumstances which attenuate or aggravate the malice of an act.

1790. But in badly ordered societies it is inevitable that punishments be brought into operation not only relative to the second, but also the first element. This, however, is opposed to what is required by reason of criminal justice, as we shall see better elsewhere.

1791. In fact, the wisdom and justice of governments has to prevent crime by satisfying, not irritating the demands of natural instincts. In addition, it ought not to impose punishment except on the degree of wickedness which, as we said, forms only a part of the criminal impulse.

1792. This limit, arising from the kind of defence used, is reduced to the obligation of exercising the right to defence solely by means of actions which are not intrinsically unlawful and immoral.

1793. The right to defence cannot be extended further than is necessary to achieve one's defence; the end determines the means.

1794. But the right to self-defence does extend of itself to everything necessary for defence, provided that its exercise does not meet with any of the limits we have either already indicated or will indicate shortly.

1795. There are two immediate consequences of this:

1. Our right to defence is moderated in such a way that it cannot go beyond what is necessary in the defence of rights. In other words, we must defend ourselves with the minimum possible harm to the aggressor..
2. On the other hand the right of defence, considered in itself, is extended ad infinitum, as Grotius notes.(529) In other words, it extends to whatever is necessary for removing the evil threatening us.

1796. The necessity of the harm to be inflicted on others in our own defence has to be thought out and accurately determined. It often happens that the spirit irritated by an injury, the movement towards retaliation, and a hasty desire for immediate reparation make us believe in the necessity for some kind of defence which, considered calmly, would not be found acceptable.

1797. In the same way, ignorance and lack of reflection prevent our discovering a way to protect our rights without causing harm to others, or at least lesser harm. Instead, we defend ourselves by means of harm greater than necessary.

1798. If this ignorance and lack of reflection are not free, but arise from a low degree of development and intellective activity in the society to which the defender belongs, or in the individual himself, the harm done to others is subjectively just because it is necessary relative to the intellectual conditions of the subject.

1799. We could imagine, however, an assault taking place on a wise man able to defend his rights without finding it necessary to inflict any harm on his aggressor. In this case, the harm, if done, would be unjust relative to the wise man and considered in itself. Let us take an example.

Suppose that the sage saw no immediate way of defending his ownership without harm to an intruder, but contemporaneously realised that by letting himself be robbed he could receive full compensation either by recourse to public tribunals or through his own power and diligence. In this case, he could not inflict harm on the intruder because it would not be necessary. Our wise man simply has to accept a change in the modality of his right. We have already shown that according to rational Right human beings have to give way when modality alone is at stake. According to the definition we have given, modality has no worth and is not, therefore, an object of true right which here lacks its third constitutive element.

1800. The extension ad infinitum of the right to defence is proved from the ethical foundation of the right according to which, as we have seen, `the right to defence is simply penal right exercised by the person offended or by others on his behalf against the guilty offender to the extent necessary for the defence of his rights.' The punishment, therefore, can be as extensive as defence demands without exceeding the bounds of justice: `The quantity of physical penalty is never equal to moral fault.'

1801. This principle of justice from which we deduce the indefinite faculty for harming an offender, provided the harm inflicted is necessary for safeguarding rights, must however be moderated in its exercise by the laws of humanity, as we shall see.

1802. It has its full application when there is a question of defence by means of exemplary punishment which, however, does not aim at an actual offence but at an habitual offence on the part of the commonalty and, I would add, of the individual.

1803. In fact, we have to distinguish defence that a person can make of his right during actual aggression from defence against continual, habitual evil-doing on the part of an individual or the commonalty.

1804. We shall speak first of the right of defence exercised during an attempt at aggression; then we shall say something in the same vein about the habitual evil-doing, or criminal impulse, that can be found in an individual or in a mass of individuals, whether associated or not.

1805. Consideration of simple, natural instinct and of the force of what we have called ownership, as distinct from the right of ownership, shows that during the act of aggression against even the smallest of our rights we could repel the aggressor by inflicting the greatest possible harm upon him, and even death, if that were inevitably necessary for effective defence.

1806. But in this case, the moral law of humanity greatly moderates the exercise of such a crude right to defence..
There seems no doubt that aggression against a person's life can be repelled at the cost of death to the aggressor.

1807. Nor does there seem any doubt that a father can kill anyone interfering with the purity, innocence or religious faith of his children, if no other means is available. I refer, of course, to the use by the offender of criminal or even violent acts, such as breaking into a house or at least entering against the owner's will, when the father acts either vi vim repellere or for the sake of punishing wrong-doing.

1808. The same can be done by anyone who, in the father's place, is moved by humanity and a sacred desire to safeguard the precious gifts enjoyed by his fellows.

1809. Finally, there can be no doubt that unjust assaults against our right can be defended, when other means are lacking, by inflicting harm upon the assailant equal to the worth of the right he threatens to assail. This is not contrary to the laws of natural justice nor to those of humanity. Renouncing such an exercise of our right would pertain in some cases only to evangelical perfection and generosity.

1810. It is not according to the law of humanity, nor rational right, to exercise the right to defence by taking the life of anyone assailing minor rights, or by killing a thief who has gorged himself on the fruit in our garden.

1811. First, as we have seen, we have to abstain from harming others in self-defence whenever we can prudently wait for full compensation for the harm inflicted upon us.

Second, humanity and rational right forbid us to defend minor rights with serious harm to fellow human beings who attempt to assail them, and even go so far as to demand that we sacrifice such rights or reserve a kind of credit enabling us to reassert them at some later date with less harm to the offender. A fortiori, therefore, we have less possibility of making our right to defence prevail when the good assailed is dependent upon some mistaken, prejudiced view we hold. And this is normally the case when we are dealing with so-called offences against our honour.

Honour consists entirely in moral virtue, that is, in the opinion of esteem which it merits and which is attributed to it. Every other sort of honour which cannot be referred to this kind of esteem is nothing more than a chimera arising from human ignorance and vanity. I leave it to the reader to judge how the notions of some moralists are totally at odds with reason and the Gospel when they permit a nobleman to run through with a sword a person attempting to slap his face.(530) This is not only an example of excess in the exercise of right (for example, when we defend some small right of our own with grave harm to the aggressor); right itself is radically lacking because one of its constitutive elements (a good to be defended) is lacking. A false, prejudiced view which, for example, puts honour where it is not to be found, is not something good to be preserved, but an evil to be destroyed.

1812. These comments all show that the exercise of the right to do harm in self-defence is limited by the laws of humanity which forbids our inflicting supreme harm on another in order to avoid insignificant harm, or no harm at all, to ourselves.

1813. It is the moralists' difficult task to assign just boundaries to these relative quantities. The scholar who wishes to establish a true, non-deceptive Right will often need to turn to moralists in his work. Some brief remarks could perhaps be offered here about this thorny question.

1814. I think it would be reasonable, when setting the possible harm to be inflicted on an assailant in the exercise of self-defence according to the laws of humanity and equity,(531) to double the value of the threatened harm.

1815. The reason for this quantity is that it does not unbalance the equilibrium constituting what is just..
Let us imagine that one person wishes to inflict on another four degrees of unjust harm. By doing this he establishes for himself a law requiring that he receive the same amount of harm. But this harm, equal to that which he has inflicted, is his punishment or forfeit for wrong-doing; there is no doubt that just, strict justice is what he deserves. However, the account between assailant and assailed is not yet in order because their condition is still unequal. The attacker, who wished to inflict four degrees of unjust harm on his victim, himself receives four degrees of just harm. In other words, he has paid a debt, but he has not obtained any credit. For his condition to equal that of the victim, he has in his turn to be assailed not because of a debt which is no longer his, but simply to enter a state equal to that of the one he has attacked. The person attacked, who owed nothing to anyone, was threatened with four degrees of harm. The assailant, therefore, after having paid his debt, can be threatened with equal harm by the other for the sake of what we have called the `just balance'. Whether the attack has succeeded or not is accidental to the action; the assailant must in either case be considered as the blameworthy cause of harm.

It is true, of course, that such a balance of justice could not be actuated of itself by any human being, but it could come about in the case of just defence. I think, therefore, that the exercise of just defence is reasonably limited as follows: `In order to defend his own assailed right, an individual can harm his assailant, provided there is no other form of defence, but not to more than double the value of the menaced, assailed right.'

1816. We have to note, however, that moderating humanely the exercise of one's own right can be understood and practised only when passions have been subdued and reflection elevated.

1817. Generally speaking, therefore, rights appear in all their force and simplicity in newly-founded nations where understanding has developed only to a low degree of reflection, human instinct is extremely powerful, and the necessity of moderating the exercise of rights through the moral laws of humanity has not been understood..
In fact, the human race, abandoned to itself, would never have understood this truth without the great light brought by the Gospel. The further we go back in history, the more we see legislations maintaining the crude exercise of rights without any human moderation. Radamantes' law, mentioned by Apollodoros, is a case in point. The legislator permitted anyone to defend himself by reacting to the violence of a first party without limit to possible harm.(532)

1818. Such moderation has no place, however, when the right to self-defence is exercised not against a particular act of aggression, but against habitual wrong-doing and injustice which continually tends to invade the sphere of others' rights.

1819. This would be the case when, in the state of nature, one individual found himself under threat from another who showed constant signs of murderous hatred or other criminal passion. Continual injustice of this kind could be restrained and terrified by greater chastisements and punishments. The same is true in the case of defence against a plundering mob, or a group of pirates or a den of thieves.

Finally, such defence is perpetual in civil society, which has to defend its members and itself against criminal impulse by exemplary punishments..
In all these cases, because the harm threatened by habitual wrong-doing against which we exercise self-defence is of itself undetermined and almost infinite, the harm that can be used in self-defence is measured only by the quantity of criminal impulse..
However in order to avoid any misunderstanding of our concept in such delicate material we shall have to speak more at length about the right to self-defence against justly feared aggression.

1820. The rules of conduct most frequently employed in human life are not those founded on certainty, but those whose basis is probability. Nothing is more difficult and nothing more distasteful to human beings than the attempt to establish rules of conduct in probable cases. Despite their difficulty, however, these cases forever demand solution, and in practice are more or less solved. But any attempt to deal with them in theory is universally resolved by classifying such research as useless subtlety or a search for undiscoverable truth. Cowardice, and the onslaught of difficulties hard to overcome, deceives us in an incredible way!

1821. We have a clear right to avoid probable harm.

1822. But in order that we may avoid it, can we do harm to the people from whom we fear it? And if so, to what extent? These are important questions which have to be constantly constantly.

1823. In order to reply to the first question, we have to distinguish, when threatened by probable harm from others, between the harm springing from blameworthy and non-blameworthy action.

1824. Probable harm threatening us can be attributed to another's fault in two ways:

1. Others have freely caused harm to us, or in some case have contributed to its being posited..
2. We have only indications on the basis of which we suppose that another person probably has an evil intention of doing us harm.

1825. Three cases exist, therefore, in which another person can cause us probable harm: he can be .
1. an innocent cause;.
2. guilty of some fact which makes it probable that we will suffer harm;.
3. only a probably blameworthy cause of harm to us..
It is clear that here we are not dealing with an actual but a reasonably feared attack..
We must examine the right to defence in each of the cases mentioned.

1826. In this first case, we can defend ourselves from probable harm, but we have no right to use means that could harm anything within the sphere of another's rights (except in the case of repelling brute force, as we have said above). The reason for this is clear: the person from whose action we fear danger is not the formal, but only the material cause of the harm. Our case supposes that he has done nothing except make lawful use of his own right.

1827. If he has inadvertently overstepped the sphere of his own rights and entered that of ours, we should first show him where he has made the mistake. Only then, after he has refused to surrender to obvious truth, can we use force in our own defence and to his harm against the danger with which his action threatens us.

1828. If the matter is doubtful, force cannot be employed, but some friendly settlement would be needed. Only in the case of refusal to follow peaceful paths in the search for a balanced settlement would the other person render himself blameworthy and justly be subject to the coercion that the other could use against him. Jural reason prescribes this conclusion because true right cannot be deduced, as we have so often insisted, from mere human instinct, but from instinct regulated by reason (rational, not merely natural right).

1829. Something similar can be said if the action posited by another is an action pertaining of its nature to innocuous freedom rather than to the right of ownership, and if the person doing it is not aware of the harmful consequences to others. In this case, there would be no question of his using some right of his; he would simply be doing something per se lawful. It would cease being such, however, and no longer pertain to innocuous freedom, as soon as he realised that it could have harmful or dangerous consequences to others. Nothing could be done with such an individual except first let him know of the harm he is doing, but without threatening him with any harmful force. If he refused to surrender to obvious reason, self-defence against him would be in order, even if he were harmed. The good faith in which he is acting ceases as soon as he has been informed.

1830. A person can be blameworthy in our regard by doing anything which puts us in danger of harm. This can happen in at least five ways:

1. By departing from the sphere of his own rights and entering that of ours. This is a clear infliction of harm..
2. By departing from one of his rights of ownership, but in such a way that a material force acts accidentally on our ownership and to our harm. An example would be the case of an unrepaired wall of his falling on a wall of ours. Harm is done in this case also..
3. By departing from one of his rights without any benefit to himself and in such a way that our freedom is restricted. Once more, harm is done..
4. When an owner has two ways of making use of a right and maliciously choses that which will be prejudicial to our freedom. Again, harm results..
5. Or finally by carrying out actions pertaining to innocuous freedom but in such a way that their consequences place our ownership in danger. For example, someone may change the course of a stream on his land for the sake of setting up a manufactory, but in doing so puts my nearby field in danger of flooding. .
When the blame has been verified in all these cases, we can defend ourselves, even by inflicting harm, against anyone who has unjustly placed us in danger.

1831. But there is no right to defence which causes harm to another if by his action he merely uses a right to his own advantage in the way least prejudicial to ourselves and without imposing force on the object of our ownership. In other words, the consequences of his use of force only limits our innocuous freedom.

1832. We have to divide the third case in two: either 1. the arguments leading us to believe that the other individual intends to harm us are founded on his blameworthy actions; or 2. they are totally independent of him and in no way his fault.

1833. If the arguments making us suspect evil in a person are his fault, we have to decide whether they have any relationship with the threatened danger (if, for example, he threatened to kill or rob us, and so on) or have no relationship with it (if, for example, his evil life provides only a general reason for suspicion).

1834. In the first case, by beginning to offend us the person has already provided us with a right to self-defence even at his own risk, if we have no other means of defence.

1835. This species of the right to defence is normally called the right to prevention.(533) According to Zeiller:.
My free activity is in fact impeded by anyone who, threatening me without lawful motive, causes me well-founded fear. In this case, I can repel him forcefully in the absence of milder means. This is even more true if, through carelessness or indulgence or tardiness on his part, more rigorous measures become necessary, and the defence of my rights is rendered more difficult or even totally impossible.(534)

1836. He adds a warning:.
A first attack is not justified by the simple possibility of harm, by threatening words (which are rather warnings that we should take care), by equivocal appearances or prejudiced opinions which lack objective reasons. These factors do serve, however, as an invitation to prepare a lawful defence.(535)

1837. In the second case, suspicion and fear arise from the evil life of an individual who is guilty not only of offending moral obligations, but tends to offend the rights of others. An evil life stained with crimes that offend against justice fully justifies:

1. The use of caution in dealing with an individual. A case in point is when we prohibit his entering the sphere of our rights as, for example, when we refuse to let him come into our house even if his entrance is of itself without prejudice to us, and others could, in the same circumstances, come in without our express permission..
2. A request for guarantees, even if this causes him some inconvenience..
3. Impeding acts pertaining to innocuous freedom, if by such acts he placed himself in a condition to harm us without our being any longer capable of withstanding his aggression. For example, we might have to make him keep his distance in some lonely place or, before allowing him near, ask him for guarantees sufficient to assure us against danger..
4. Watching him, and even forcefully obliging him not to evade our vigilance. This is the same as the previous number.(536)

1838. For the rest, however, we cannot cause this individual any direct harm on the basis of suspicion alone. On the contrary, we should if possible take suitable precautions by giving in ourselves and moving away, despite some light inconvenience, rather than causing him genuine harm.

1839. If the reasons for our suspicions of his malicious intention to harm us are independent of him and of any fault on his part, and spring at most from conjectures of an altogether different nature, we can take precautions and guard ourselves, or even demand guarantees that cost the person nothing and cause him no inconvenience. We could also encourage him to arrive at some agreement with us, provided it was harmless and without trouble to him. But we cannot defend ourselves by causing him harm.

1840. In fact, his evil intention cannot be fully proven. The suspicion depends neither on external things nor on him. It is not reasonable, therefore, for us to cause harm by defending ourselves against what we fear. `Our fear,' as Grotius says, `cannot diminish the rights of others;' (537) nor should we ever cause suffering to innocent people. Everyone must be presumed innocent until proved guilty.

1841. This was the opinion of the whole of antiquity, and it is natural that we should embrace even a single case in which we can think well of others. It would be injurious to think ill of someone as long as there remains even a single hypothesis for thinking well of him.

1842. The reason for this lies in the supreme moral obligation, whose nature we have explained. It obliges us not to refuse to acknowledge things presented to our knowledge. In other words, we cannot deny the worth of what we know unless we see that it lacks this worth. In our case, to suppose that a person lacks some worth, without knowing if that is truly the case, is to offend that individual. The offence is more serious in so far as the worth is higher, and its possession a duty incumbent upon the person.

Because such worth is not necessary, it may be objected that we cannot know whether the person we are judging really has it. That, of course, is true, and it should induce us to suspend our judgment, which we can lawfully do. We may indeed have different degrees of inclination to judgment dependent upon various probabilities, although judgment itself remains suspended. In other words, there is no judgment. However, when our actions are directed to harming someone, we suppose that this person deserves harm; our behaviour is subsequent to a formed, completed judgment. Suspension of judgment, on the other hand, produces nothing it simply suspends action.

We cannot, therefore, cause harm to anyone of whose guilt we are not certain. This is equivalent to saying that our rule of action must be favourable judgment until the contrary is proved. If a positive, favourable judgment cannot be formed, we have to presume well of the person, that is, we have to act as if a favourable judgment had been formed. Action supposes a formed judgment, which can only be favourable or unfavourable. It cannot be unfavourable without doing injustice. Our rule of action, therefore, must be a presumed, favourable judgment.

1843. Kant was wrong when he opposed this common-sense, moral attitude and substituted for it in Right this heart-breaking statement: `Every individual is presumed evil until he has been proved good.' (538)

1844. He was also wrong about the consequences he wished to draw from his principle. One consequence affirms that ownership in the state of nature can only be provisory. Kant reasons that the obligation of respecting others' ownership cannot be supposed unless others respect our ownership. This certainty is unobtainable, however, without some guarantee. Such a guarantee can only be verified in civil society, where alone therefore ownership can peremptorily exist.(539)

1845. He is wrong again when he deduces from his fearsome concept of human beings the necessity of an interchange of guarantees for all rights, and on this basis excogitates his jural state which, strictly speaking, is impossible and absurd. He actually calls for rights to be guaranteed by force without indicating how it is possible to have guarantees against the abuse of force itself.(540)

1846. Such a system, which can only be sustained on the basis of a necessarily wayward human nature, causes direct harm to humanity. Kant does, in fact, suppose a certain radical evil in humanity. We may grant this, but it is insufficient to make us consider other human beings as assailants against our rights unless, in addition to the radical evil in them, we also suppose that all mankind without exception is under some necessity to offend us. If, however, the human will is not necessitated in this way, it may easily be the case that people do not in fact offend us. Before we have some proof of their intention, therefore, we cannot know whether they do or do not wish to cause us harm. In this case, when we judge that they do, our judgment is false, rash and offensive to them. But we cannot harm them without judging them as assailants. We cannot, therefore, offend them, and have to conclude that favourable judgment is to be the guiding rule of our actions; we have to presume that others' are good until they are proved evil.

1847. But what are we to say about the probability of a wayward intention in others, even when this probability is not founded in their own fault? Are we unable to take precautions against this probability? Precautions can be taken, as we have seen, provided we cause no harm to the person concerned. We can, therefore, require declarations, guarantees and any kind of assurances from him, as we said, provided they are without harm and danger to him. Moreover, he is obliged to give them to us. If he does not, he begins to place himself amongst the guilty; it is reasonable that every individual should justify himself and render an account of himself when rational suspicion falls upon him.

1848. This enables us to deduce the obligation incumbent on all to form part of civil society which, while not fully assuring rights, greatly increases their security. The obligation does not begin, however, except when people ask it of one another and require it in words or in practice.

1849. Suspicion of another's evil intention can arise from two general arguments: .
1. From analogy: for example, a person we know is suspect simply because he belongs to a society which is not unlawful in itself, but contains many evil people..
2. From a calculation made on the basis of comparison between average moral force and temptation..
We shall speak about both cases.

1850. There can be some grade of reasonable suspicion about every human being because each one belongs to the society of mankind, which contains many wicked people. If we knew the comparative numbers of good and evil people in this society, we would be able to state the precise degree of probability of our suspicion.

1851. The same may be said about all particular societies, trades, and professions. Every one of them has its own number of good and bad people; the relationship between these two quantities indicates the degree of probable goodness or malice in each of the members otherwise unknown to us.

1852. The same reasoning applies to nations. We are more suspicious about unknown people if they belong to some corrupt or barbarian nation than if they belong to a fully-developed or civilised people.

1853. The probability of suspicion also varies, therefore, according to the times. The morality of human beings in general, of nations, and of more particular societies or classes of human beings is subject to variation, however they are composed. The actual degree of probability can only be discovered through experience: the things we have experienced, the interaction between evil people in given societies, cause us to be more or less diffident about all their members. But these experiences and known cases are not the same for all. This explains different judgments about the degree of trust we can place in unknown individuals who present themselves as belonging to a certain class of persons.

1854. Three questions arise therefore:

1. How can we defend ourselves against the suspicion clinging to a member of a moral body as a result of the evil people found at the core of the body to which he belongs?.
2. How can we defend ourselves against the danger we fear from the moral body itself?.
3. Can we do harm to an innocent person indirectly when we justly defend ourselves against a blameworthy moral body?.
We shall say something about each of these cases.

1855. As we said previously, this kind of doubt is insufficient to convict a person belonging to that body. We cannot do him harm, therefore, but can defend ourselves, and guarantee our defence with innocuous means. At most, we can require from him some reasonable, harmless agreement, guarantee or caution.

1856. We can defend ourselves against the threat of danger from a body provided that the body is an evil society according to its constitution, and its government has proved its wickedness by many acts of injustice, or the spirit of the society has in the same way shown itself evil by its unjust acts. The means of defence are those with which we can protect ourselves against individuals whose actions mark them as unjust. The only distinction we have to make, as we have already shown, is that between guilty actions which have threatened us in particular and those which have threatened and offended others.

1857. If, however, the fear we have about that body does not depend on the injustice of its constitution, nor from repeated acts of its government, nor from its spirit, we cannot cause it harm in order to avoid the danger we fear. Nevertheless, if our fears are well-founded, we can take precautions by making use of our rights and requiring agreements and guarantees. We can also require some change in the MODALITY of the body's rights provided that the VALUE of these rights is maintained. This kind of alteration must reasonably be granted us.

1858. We must note that the guarantees which we ask from the collective body we reasonably fear and in consequence of which we require some change in the MODALITIES, but not in the VALUE of its rights, can increase in accord with

1. stronger reasons for fearing probable harm;.
2. fear of greater harm;.
3. higher possibilities of irreparable harm if precautions are not taken in time..

1859. At this point, the questions of balance of power between States and of the so-called raison d'tat rises of its own accord. It may be expressed as follows: Can war be waged by one Power on another under the pretext of self-defence for the sole reason that the second Power is excessively strong? If the opportunity of defeating this Power is not grasped (so the argument runs), we would be threatened with ruin. Experience shows (the argument adds) that big fish eat small fish, and that in the long term a powerful people overcomes a weaker one.

1860. Alberico Gentile(541) answered the question in the affirmative; Grotius(542) very rightly answered it in the negative. History offers many examples of rulers who waged war moved by the secret motive of defeating rivals feared for their power.(543) Only rarely, however, do we see this motive openly and shamelessly affirmed.(544)

1861. It is true that we ourselves have heard the public offered raison d'tat (the Napoleonic State) as the only motive for so many murderous wars. But we have to remember that the bully who spoke in such a bare-faced manner had set out on the road to conquest and military fortune. Conquerors have never held the compass of Right as their guide, nor has there ever been the slightest chance of their teaching and revealing what is just. We also have to remember that the philosophical theory of sensism and utilitarianism has firmly established in the world the theory of political balance of power, and allowed justice to be usurped by advantage. The very conscience itself of peoples seemed almost cloaked and obscured, and many strong, violent, armed people already struggled to replace the Right of eternal law with that of force which, they thought, was more to their advantage. Finally, we must remember that despite everything to the contrary, justice reacted with open disagreement in the secret depths of conscience, shone more brightly than ever, and finally conquered mental aberrations as surely as it had overthrown terror inculcated by the legions.

1862. We would agree, however, that the feared greatness and power of others, although not justifying war, does justify alliances aimed at assisting victory on the part of those who wage just war on the feared Power (it is understood that the victory itself must not exceed Right). Helping someone who has justice on his side is not opposed by justice if counselled by prudence.(545)

1863. When fear is not inculcated by some just Power, but founded on the wickedness of human nature rather than on any fault on the part of those we fear, we have no authority to harm anyone in our own defence. This kind of fear simply authorises us

1. to strengthen ourselves by the use of things which lie within the sphere of our rights.
2. by using our innocuous freedom and.
3. by requiring from the party we reasonably fear agreements and guarantees that do not lessen the WORTH of their rights, but only change THEIR MODALITY, which has no jural worth.

1864. These things can be done or demanded to the extent that fear is soundly based. It is more soundly based in so far as:

1. the power to harm (forces, audacity) is greater in the other party;.
2. the occasion for exercising the power is closer at hand and easier;.
3. the good acquired by the other when he harms us is greater;.
4. the hope of impunity is greater both in the case of material chastisement and in that of public opinion, which has either been falsified or which one hopes to falsify;.
5. there is a general air of corruption about the feared collective body as a result of other cases of proven greed, total lack of moral restraint and complete shamelessness;.
6. the probability of harm, calculated according to similar instances in history, is greater, and can in fact be very great;.
7. finally the evil, if not attended to in time, is seen to be irreparable later.

1865. It often happens that all these reasons, especially the sixth and seventh, serve to exacerbate the relationships between nations. Constant experience shows that in the long term a small nation becomes the subject and prey of its great neighbour unless it takes advantage of favourable opportunities for waging war. Experience also reminds us that an evil is often irreparable if such an opportunity is neglected.

1866. Granted the immense danger present in such difficult circumstances, we should not be surprised that the right to request mutual guarantees in relationships between States has been fully developed. These guarantees change the MODALITY of each nation's rights without, however, diminishing their value.

1867. The obligation of nations to make treaties and draw up agreements for their own use is founded, therefore, on a strict RIGHT OF REASON. Any nation withdrawing from such pacts would be guilty before other nations, and could justly be forced to adhere to an agreement.

1868. This is international right, which is much better called RATIONAL than NATURAL. It was introduced, or certainly perfected on earth by Christianity which calmed passions, strengthened the understanding and established here below the principles of an eternal justice and, more importantly, of an eternal, supernatural power with infinite retribution. Our own eyes have witnessed marvellous progress in this Right in our own period which, more than any other, has seen protocols take the place of war. This all shows that such calmness of spirit and serenity of mind, which allows human beings to listen to reason rather than be impelled to act by instinct, will go on increasing. The motto, cedant arma togae, will become ever more attractive to Christian nations.

1869. The area to which international right extends can be expressed in this way: `The greater Power must give the guarantees requested by the lesser Power, not by decreasing the value of its own rights, but by changing their modality whenever the lesser nation's fear is reasonable.'

1870. This is a jural right founded in the principle of reason which states: `An individual must not remain in a position dangerous to his neighbour when he can change that position without harm to himself, or when he can eliminate the danger.' Anyone not obeying this principle is guilty and responsible for the danger which he freely causes. Each individual `must use his rights without harm or disturbance in that way which leaves others as unencumbered as possible.'

1871. It is clear that finding such a mode, which is the noble responsibility of diplomacy, is not always easy. In fact, the true scope of the science and art of diplomacy cannot be simply the advantage of the nation represented by a diplomat. Its aim rather is `to find the modality of the rights of nations which will maintain and secure their mutual rights without any diminution of their worth in other words, that modality which makes possible the fullest coexistence amongst nations. Diplomats, therefore, have to reconcile justice with an equal division of usefulness. They have to maintain rights, and obviate collisions by means of the form and attitude they give to rights.' Statesmen and diplomats have in hand a most noble ministry of justice and want to be considered today as judges and peacemakers between nations.

1872. It is obvious that the right of a State to demand modalities in the rights of other more powerful or equally powerful nations as mutual guarantee or security possesses enormous latitude which must always be moderated by need. Practically everything that forms part of a peace-treaty or trade-agreement is reduced to determining the modality of which we are speaking. This modality may be applicable to one or both parties, with or without compensation, as we see happening especially in questions of import tax.

1873. This part of Right has not yet been split up and specified as it deserves. Innumerable questions arise from it and come to our notice daily. Well-informed decisions about these questions are naturally of interest to the temporal advantage and peace of nations, but they are also necessary for public education. We need to know thoroughly which treaty between nations is right and totally moral so that statesmen, instructed in these ideas, can work with greater surety..
Let me offer an example of this kind of question by referring to one of the most equivocal facts of modern history the Copenhagen expedition undertaken by England to capture (as it did) the Danish fleet. At the time, Denmark was friendly with England and perfectly neutral.

1874. English intelligence had revealed that Napoleon had set his sights on capturing the fleet.(546) England thought it best to step in first, realising that Denmark would not be able to defend herself and her fleet against such a powerful aggressor. Did England have the right to do this?.
In England itself there were disagreements about the uprightness and justice of such a step, which was government policy, and the proposal that those who had carried out the expedition should be thanked by Parliament met with considerable opposition in the House.

1875. In his History of the Spanish Revolution,(547) Mr. George Elliot tried to justify this undertaking with examples(548) and arguments. Examples, however, are of little use because they themselves need to be justified. Nevertheless, the judgment formed by the public on the facts used as an example is itself some kind of authority. Elliot writes:

I do not think it difficult to prove that in the extremely extensive morality of the laws of nations every State has the unalterable right to look to its own security with every means in its power, provided it can clearly prove that its security is truly endangered.(549).
I could never approve of this. I must always maintain that nations' right of defence is limited (as the individual's right is limited) to the use of just, upright means alone. Equally harmful and dangerous in our opinion are the author's other words :.
There would be little wisdom in the counsels of a nation which decided to perish through excessive delicacy of conscience.(550)

On the contrary, the business of nations must be governed by the same delicacy of conscience that presides over private business. Indeed, it must be even more delicate. We think that this truth could and ought to be preached from the roof tops by all writers on Right and morals and deeply impressed in the spirits of peoples and their governments..
I grant that writers on ethics and rational Right are also called to facilitate the practice of justice and holiness in public affairs. Their responsibility is to identity special cases, and indicate the ways in which they can be reconciled to the advantage of their own nation, and with justice and morality towards all others.

1876. But let us return to the case we proposed and formulate it as a general question: `If a friend possesses a weapon that could harm us and cannot defend himself against an enemy of ours who would take it for use against us, can we first take that weapon for ourselves.'.
I have no doubt that rational Right leads us to an affirmative answer on condition that we take possession of the weapon in the right way and pay adequate compensation.

1877. The following are the conditions according to which we can correctly exercise the right of prevention:

1. We must use all peaceful means to ensure that the weapon is handed over by agreement, unless the use of peaceful means are foreseen as totally useless or would compromise the outcome of the affair..
2. We cannot take possession of the weapon except as a pledge to be restored after the danger has passed..
3. If in taking it by force we harm it, we must compensate the owner for the harm..
4. We must also compensate the owner for the harm accruing through his lack of the weapon, and for the income he has forfeited.

In this way the owner will lose nothing of the value of his rights; there is simply a change in their MODALITY for a just, necessary and urgent cause.

1878. Another question now arises: `Can I prevent someone becoming much more powerful than myself, not because he threatens me, but in order to have some guarantee for my reasonable fear that human perversity finds it hard, as we know, to resist certain serious temptations for any length of time?' I would answer ; `Yes', if this individual were to employ disreputable ways of increasing his power, such as unjust conquests.

1879. If he declared war, and it were impossible to resolve doubts about its justice on either side, I could intervene as a mediator and peacemaker between the parties.

1880. I can ally myself with the opponent of the party I fear most if that side refuses either my mediation or some similarly fair way of resolving the differences peacefully. It is a duty of rational justice to reach an upright compromise and fair conclusion in a doubtful cause, and to avoid violence. Anyone refusing to do this offends against right.

1881. If, however, the person concerned makes due progress without giving cause for complaint, his development will entail the use of his rights within their own sphere (for example, by improving industry within his own State) or by acts of innocuous freedom intended to extend the sphere of his rights.

In the first case, it is certain that I cannot prevent his progress by causing harm; in the second, not only may I forestall his projected acquisition by occupying it myself and impeding his design, but I can even claim that he should either limit his innocuous freedom or offer sufficient guarantee against it. For example, one Power decides to occupy a great tract of abandoned territory which serves as a buffer between it and another Power. The second Power foresees that it would have no hope of resistance should the territory fall into the other's hands, but has no way of occupying the territory itself. In this case, it can require some explanation from the other, and even prevent occupation by war if no other means is available. As we said, innocuous freedom is not a right, but simply a means of acquiring rights. It can, therefore, be impeded and limited if it causes us some reasonable fear and thus ceases to be truly and completely innocuous. It can be impeded, however, only to the extent of the danger, and no further.

1882. Innocent people must undoubtedly be saved in a defensive war against a guilty collective body, if there is some way of saving them.

1883. But can I defend myself against a collective body intent on harming me if I have to involve innocent people in the harm I inflict? I think this can be done provided the defence is just, necessary and moderate, in the way we have previously described. In this case, the true cause of harm to the innocent is not myself, but the body which provoked the defence and wickedly imperilled the safety of its members, for which it is responsible.

1884. At this point, a most important, but little examined question could be raised about the solidarity formed at the heart of collective persons. This solidarity has two parts:

1. that by which each member considers himself associated with the action of the body;.
2. that by which the whole body considers itself associated with the action of each member.

1885. It is clear that each member of a collective body with an evil end or wicked constitution shares in its wickedness by the fact of association, if the association is freely willed, not necessitated.

1886. If, however, a collective body has an upright end and constitution, it would not seem that all its members are invariably responsible for abuse of authority by the government. We have to conclude that guilty and innocent cannot be bracketed together if it is possible to separate them.

1887. Granted the impossibility of considering each member of the society as guilty of crimes perpetrated by the government, it is a fortiori impossible, generally speaking, to involve all the members in the faults of one of them.

1888. Solidarity taken in this sense has always been an immense source of injustices. One particularly inhuman example of this is reprisals, when prisoners of war, who are no longer capable of doing harm, are killed simply because the enemy has already done the same. I cannot see any way whatsoever for justifying such barbarity, by which one person is made to undergo the punishment merited by another. It should be outlawed from the Right of war amongst civilised people.

1889. I think the same has to be said about taking hostages for the sake of threatening their lives if their fellow citizens or relatives harm us or refuse to do what we want. In this case, we would be defending ourselves with innocent blood. It is impossible to justify this according to the principles of rational Right, which alone are worthy of a civilised people.

1890. In any case, we have to note that the solidarity attributed to all the members of a body in the case of crime by one of them is a right that has changed greatly in various times and periods of mankind's development, and has been given multiple modes by public opinion.

Natural, synergic unions were stronger at the beginning of human history. It would seem that the checks and balances applicable by underdeveloped reason and underactivated freedom exercised little influence on vehement feeling and instinct. In fact, freedom gains force only as reason develops, and through use. Unity in collective bodies, especially family unity, is tighter the further we reach back in antiquity. People were formed on the model of one another, through constant imitation and tradition. Children were the image of their fathers, whose feelings, passions, persuasions and customs they inherited. The whole family appeared a single person, marked with its own characteristics and distinct from all the others. This is, indeed, a special characteristic of Orientals. Hence, crime on the part of a single member was immediately imputed to the whole family, to all the clan; an entire city was punished for a single malefactor; an entire people were shamed by a few very wicked members. No-one doubted the truth and justice of crimine ab uno disce omnes, a proverbial maxim accepted without hesitation by all.

1891. This reflection slightly diminishes, without removing altogether, the level of injustice found in the frequent judgments of ancient peoples which condemned the fathers for the children and the children for the fathers, or entire families and even cities for the wrong-doing of a single person. Another reflection makes it easy to explain this fact, without lessening its iniquity. In antiquity, the faculty of abstraction was little developed.(551) Consequently, it was difficult for the mind to separate one thing from another. Moses, for example, who evidently wished to educate the people and develop their understanding, ordered them to avoid as unjust some of these all-embracing judgments.(552) The immense development of the faculty of abstraction that has taken place in modern times is to a great extent the cause of the ever-growing exclusion, from our laws, of punishments founded on the principle of solidarity. Examples are confiscation, and so on.

1892. Moreover, it is too difficult to decide how much a body's uniformity in behaviour and nature, and unicity of spirit, could in remote times justify the harm that was done to an entire body for the sake of defence against the wrong-doing of a single member. We can say, however, that we would have to begin the calculation by carefully verifying the unity of the intent to harm, that is, of helping the guilty party in his wicked assault.

1893. It is lawful for everyone to take precautions against an entire body when he suspects that it harbours an individual malefactor. The means he uses, however, must not offend the rights of ownership of the body; they must be a mere use of his freedom. Pallas' family, for example, was able to avoid contracting marriage with the family of Agnusius because of the presence of a single traitor.(553) This kind of avoidance must not be the effect of hatred or of the spirit of retaliation, but of prudent fear and care not to take sides with the guilty or fall into the hands of the enemy.

1894. We have more reason to fear theft from people in a state of misery than from well-off people. Certainly the former are under greater pressure from temptation; necessity urges, and greater moral force is needed to resist it. Indigent people may indeed possess this force, but our ignorance of their state does not allows us to estimate their moral force as more than average. This in turn authorises us to be more suspicious of them than of comfortably-off or rich people. Moreover, average moral force, which is constant, leads us to increase our suspicion of the honesty of unknown people in proportion to the degree of temptation they experience.

1895. Consequently civil society has the right, relative to the poor, to require greater surety of their conduct than of others, to watch more carefully over the way of life of the poor, and so on. Society, however, has no right to lessen the rights of the poor or inflict the least harm upon them.

1896. Civil society may also assume a jural obligation to help the poor in cases of real indigence. This is the case in England, for example, where a poor-tax is imposed. It is clear that through this assistance and through the indigent who accept it, society gains a right to require work from the poor as a strictly jural obligation. Without such an obligation, it would be impossible to verify amongst the indigent those who had the right to assistance; the idle must be considered thieves under such a system.

1897. Generally speaking, it can be affirmed that all methods of crime prevention are defective and unjust whenever they are employed by civil society in a manner disadvantageous to persons not convicted of the fault in question, or of any other fault producing some reasonable suspicion and fear in society.

1898. We conclude this article with the observation that civil society sometimes does real harm to innocent people when it lays claim to the defence of its members, and at the same time wrongly imagines that its way of action is in accord with justice. The measures it takes seem necessary to its own safety or that of its members, but at the same time it believes that it can abstract from the harm inflicted upon innocent individuals.

1899. This abstraction, made by civil society and its government, does not diminish the real harm inflicted on the innocent, nor does `another point of view' diminish the suffering experienced by the innocent.

1900. Torture, a genuine example of this kind of injustice, was justified in the past through a kind of legalistic abstraction, and used against the accused not as a punishment (so it was said) but as a means of knowing the truth..
Similarly, no pain or harm inflicted under the pretext that it is not imposed as punishment can be imposed on a person not yet proved guilty of a crime. A government, although sometimes obliged to take precautions against persons it suspects, must treat them with every consideration. Moreover it would seem, according to rational Right, that it must compensate them for disturbance caused, perhaps necessarily, for the public good. This compensation would ensure the preservation of the value of a person's rights; only the modality of the rights would be changed (cf. 1706). The English law of habeas corpus was dictated according to this principle of justice, which also suggested the fine instruction given by the Empress Catherine for the formation of the Russian code about preventative arrest.(554)

1901. Right extends in so far as human understanding which possesses it knows how to draw more or less remote consequences from it.

1902. Right is offended in many ways: directly or indirectly, by positive or negative action, by the action itself, or by its consequences, and through the more or less remote consequences of our actions. Right is offended when its possessor suffers moral resentment, which varies in so far as he knows the consequences that another's action can have on his right.(555)

1903. Under this aspect, the sphere of innocuous freedom open to human beings is gradually restricted as intelligence increases and we come to know more about the remote consequences of our actions and their mutual relationships. As a result, an action which was thought innocuous at one time is considered offensive at another. The right of defence then appears to take on new laws, and be clothed in different modes.

1904. This observation enables us to explain in great part the new advances in our own days, the universally felt need for new theories of rights, the delicacy and mutual regard people have for one another, and the increase of mutual claims upon one another. In a word, understanding has taken possession of certain things that were formerly free: the individual who today possesses a right, possesses along with it all the useful, foreseen consequences of this right which, when he sees them, he appropriates. Formerly, the same things had not been seen, and hence not appropriated.

1905. This comment (which alone perhaps can pacify many angry disagreements amongst people and produce harmony between old and new opinions) will be better understood if we turn back to our division of rights and lawful acts pertaining to freedom, and to rights and lawful acts pertaining to ownership.

What is our ownership reduced to? As we have seen, it is inexact to speak, as civil laws do, about a right over the substance of things. The human being can only have a right over the use of things; he has no notion of what to do with their substance. It might just be possible to say, but even this would be inexact, that we have a right over the substance of which we are formed. The right over the substance of things, however, is entirely God's, who gives being to their substance, and maintains it. Ownership, therefore, is directly concerned only with the exclusive use of a thing, and consequently extends only as far as our knowledge of how to use it. But as ownership extends to more and more uses of a thing, so the possibility of harming others by our use of things is extended. It follows that the cases in which the right to defence can be brought into play are also extended.

1906. It may be objected that the exclusive use of some thing is exercised only through a series of actions in which we use the thing as a kind of matter or instrument. But an action is the proper object of our right only when we actually do it. Is there any difference, therefore, between freedom and ownership, between the right to actions and things, and the right over actions and things? Doesn't this kind of argument reduce ownership to freedom? Is the right I have over something, different from the right to certain actions?

I reply that the difference lies in this: the right over a thing brings me the right to all the actions which I can do with that thing in a way exclusive and proper to myself, that is, in such way that no one can limit me in my right. If, on the other hand, I had the right to actions without this right being founded in something I already possessed, everybody could enforce limits on my actions in this regard. Possession of something is that which renders such actions possible for me; the thing itself can be regarded as a power to act, as an increase in my liberty.

The analogy between the two species of right already determined can be expressed as follows: in both we distinguish 1. the power to act; 2. the action itself. The power to act is either only our internal freedom or, in addition, is also the thing we have occupied. The first kind of freedom, which we have called innocuous freedom, is the source of our rights to acts and to things; the second is the source of the rights which consist in our use of a given thing. The power to act, whether it regards our internal freedom or the external thing, can never be touched or limited; the acts of such powers can, however, be limited by means of acts preceding our own.

As we were saying, therefore, we consider the external thing that we own as a power to act. I maintain that this power is extended and useful to us in so far as we know how to employ it and foresee its remote uses. Moreover, we do not possess this power except to the extent that we know how useful it will be. As our understanding increases, therefore, our rights acquire greater extension in accordance with the stricter moral bond between things and ourselves.

1907. Nations have become more jealous about their trade, navigation, rivers and so on, precisely because they have come to know better the consequences of these things..
To repeat: as right is further extended over things, so the right to defence is extended further at different times. In a word, because previously we were unable to calculate the remote consequences of an act in the way now possible to us, we can lawfully regard as harmful an action which at other times we considered as harmless, and defend ourselves against its consequences.