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

Chapter 5

The right to satisfaction

1908. The right of coercion is exercised on two occasions: when an attempt is made to injure our rights, and when our rights have been injured. In the former, the right of coercion is called the right to defence; in the latter, the right to satisfaction.

1909. The right to defence and the right of satisfaction are therefore two actualisations of the right of coercion. The right of coercion can be considered as the genus, the other two as the species. We have spoken about the right to defence; we will now discuss the right to satisfaction.

1910. But we must first distinguish between the right to satisfaction and the right to punish.

Because satisfaction presupposes harm, we need to see which actions inflict harm on others. Every immoral act implies a debt to moral being, but not every immoral act inflicts harm on others. The debt we incur to moral being contains in its concept our duty of satisfying the debt and the creditor's right to satisfaction. But in every immoral act the creditor is justice itself, that is, the supreme being where justice resides. Strictly speaking, this is called penal Right. Penal Right therefore deals with the violation of justice in its universal, objective nature.

1911. Harm, however, presupposes a created, intelligent being, capable of being harmed, and contains in its concept the duty of rendering satisfaction and, on the part of the person harmed, the right to satisfaction. Hence, the right to satisfaction is completely different from penal right, although it can be considered as connected with penal right. Strictly speaking, the right to satisfaction exists only in the case of unjust harm and debt to the harmed being, in addition to the debt to justice and the supreme being.

We have spoken about the right to punish. The reader must be careful not to confuse it with the right to satisfaction, which is the subject of our present discussion.

1912. We must first determine the nature of injurious harm.

Some actions are immoral but do not injure others' rights. Other actions, such as failed aggression, are immoral and injurious to rights but in fact do no harm. Other actions do harm but are not immoral or injurious, for example, the use of innocuous freedom by which we restrict the sphere of another's freedom. Finally, some actions are immoral, injurious and harmful; only these are involved in the right to satisfaction.

1913. Injurious harm consists in a diminution of the good contained in a person's right, effected against his will.

1914. Every good, when reduced to its most general class, is both moral and eudaimonological.
Although an attack can be made against moral good, a human being cannot be robbed or despoiled of moral good against his will. If a person, by consenting to another's attack, is therefore deprived of moral good, the harm sustained cannot be classed among injurious harm because `no harm is done to the person who knowingly consents'.(556)

1915. The only jural offence against moral good therefore is any attack against it. Consequently neither injurious harm nor right to satisfaction is involved. We spoke about this kind of injury and about possible defence against it when we dealt with innate right.(557)
We can require satisfaction therefore only for harm which involves the loss of any eudaimonological good. This perfects the proposed definition of injurious harm by determining the element of good, as follows:

1916. Injurious harm consists in the diminution, against our will, of some eudaimonological good which is ours by right.

1917. A question now arises which must be answered immediately.
According to what we have said, it would seem that no right to retaliation, distinct at least from penal right, exists between penal right which concerns punishment imposed on a sinner by the order of eternal justice, and the right to satisfaction. Human opinion and instinct is apparently the basis for the right of simple retaliation, but does this proposed right to retaliation in fact exist?

1918. As soon as human beings see justice offended they know, almost by intuition, that the order of justice requires the guilty to be punished in proportion to their guilt. Sensing a desire for order to be re-established by this means, they also rejoice in the punishment of the guilty. If punishment does not follow immediately, they call for it with zealous anger and feel incited to take some part in re-establishing the eternal order of being by inflicting on the guilty some suitable punishment. All these undeniable facts lie deep in human nature. At first sight they are easily explained, but later become mysterious, and finally, sublime consequences of human moral nature, rooted as they are in the intrinsic, immutable order of total, absolute, moral being.

But although all these facts do indeed witness to an essential right to punish, they do not witness to a right to simple retaliation.
The right to punish is objective, and consists in the clear need to re-establish the order of moral being by balancing fault with punishment. The feeling adherent to this right manifests itself in our spirit when we see any fault whatsoever, whether simply moral or even jural, and if jural, of a kind that infringes another's or our own right.

1919. But the right to simple retaliation is different. Properly speaking it is conceived as proper to an intelligent subject who has experienced injury and wants to vindicate himself against the perpetrator. This subject is motivated by the offence against himself, not by the mere requirements of the moral law considered objectively and universally. If the offence had been against someone else, it would not have motivated him in the same way. His intention is not only to re-establish the objective order but to have the perpetrator of the injury punished and thus obtain satisfaction for himself from the punishment and suffering. Does he, however, in the light of nature and human reason, have this right to simple retaliation?

1920. Note carefully: I do not deny the existence of the matter of a right whenever we are in the presence of an instinct truly proper to nature and therefore common to all human beings. It is also certain that human beings have an instinct for beholding the humiliation of one who has injured them and refuses to compensate the harm when confronted with it. But our case concerns the presence of a human instinct different both from the already mentioned instinct to punish, and from the instinct to gain satisfaction for harm done.

I say a human instinct because animality itself has its own inclination to react with angry feelings and warlike instinct against anything that upsets it. Relative to the animal, such a reaction is set in motion, as with all instinctive activities, by virtue of certain blind laws and in the absence of any ulterior intention. But relative to the governing providence of the animal, the purpose of the movement of anger is not retaliation at all but the defence of the animal against hostile forces.
All things considered, therefore, I maintain that no instinct for retaliation exists in the human being specifically different from the instinct to punish, defend oneself and obtain satisfaction for injurious harm. Consequently, a specific right to retaliation does not exist.

1921. Such a right is proper only to God, because only in God does a right to retaliation identify with penal right. Objective justice in God is also subjective, so that God can impose a punishment for fault considered as violation of justice (object) and offence against himself (subject).

1922. This solution is confirmed and clarified by the consideration that human beings deserve respect only in so far as they share in eternal law. Thus, injury, which comes within the orbit of this law, is not restricted to human beings. We do not have personship of ourselves; all injury against us is only relative, just as, in a similar but not equal way, an insult against an image is not confined to the image but wounds the subject presented in the image.(558)

1923. Nevertheless we can and must distinguish two functions of penal justice. Two titles draw into act the unique law of justice when intelligent beings, as we are, suffer harm from another intelligent being. The first is the dignity of the supreme Being, where morality resides in all its essence; the second is the dignity of the created, intelligent being (human being). The dignity is essentially the same: it is always being that is not acknowledged. But the harm done to being, present in every person, is effected in human beings who share in being and therefore in its dignity. Because they feel their dignity is offended by the harm done to them, they seek retaliation and vindication in itself for the being that was harmed. This function of punitive justice can certainly be called `right to retaliation' but it is not specifically different from the right to punish, and is essentially different from the supreme Being's right to retaliation.

1924. Why then are human beings seen to be constantly moved by a greater impetus to retaliate for their own injuries rather than for the injuries of others?

Many explanations are given for this fact. First, human beings, as intellective, animal subjects, are subject to the passion of anger, a blind movement which (cf. 1920) affects the understanding and will, as do all the other animal passions. Viceversa, understanding and will move the passion of anger when they perceive an injury. It is not surprising therefore that such subjects show themselves more sensitive, active and energetic in obtaining retaliation for offences against themselves rather than against others.

1925. Second, the injuries are nearly always joined with harm either in itself or in its consequences.

1926. In the third place, human corruption must be borne in mind. Sadly, sinful humanity lost the knowledge of God. As a result, we necessarily became revengeful just as we had become proud and pleasure-seeking. We were necessarily pleasure-seeking because, having lost our greatest good, we could not find happiness except in creatures. Pride was necessary because, having rejected the first being and forgotten our proper Master, we showed ourselves as first being for ourselves, our own Master. Our reason necessarily became the God of the earth, since nothing superior to human reason was left. Consequently, we had also to be revengeful because on the one hand we were capable of knowing injustice but on the other no longer knew who was responsible for fully punishing and requiting injustice. Moreover it was natural for us to claim the requital of injuries which had violated justice and been specifically perpetrated against us, although this right belonged to God alone (cf. 1921) whose position we usurped. Again, indignation, a passion arising from the knowledge of an offence, necessarily became more sensitive and inflamed in us; we had lost the vision of God and therefore felt the injury as if we were God ourselves. This explains why the passion of anger formed the heroes of paganism, whose archetype is Achilles, and why retaliation and cruelty are vices which contaminate all customs and laws of idolatrous peoples.

1927. To leave to God alone the exercise of the right to retaliation is a deliberation as difficult as our re-union with God.
The cities of sanctuary established by Moses for those who committed involuntary murder demonstrate how difficult it was to restrain blind indignation among the Hebrews, which took the form of a desire for retaliation. The least educated seek retaliation the most. To be able to reject the desire of retaliation we must be capable of controlling our anger and be convinced that God alone is the vindicator of every injustice, because he is the justice violated in us. These truths demand reflection, and to be effective, require a high degree of persuasion seen only in the people of the new Gospel. Certainly, human beings renewed by Christ, that is, newly joined to God, can fully understand the meaning of `Vengeance is mine' because the law they follow also says: `Love your enemies; bless those who hate you.'

1928. Let us conclude. The only right to retaliation within human competence is simply an actuality of the right to punish (cf. 1923). God however has reserved the exercise of this right to himself. We partake of personal dignity (the object of others' moral respect) by the light of truth, to which we adhere. We have a moral exigency(559) therefore as soon as we are known by other intelligent beings. If they do not give us the respect required by our dignity and will, we feel injury and the need to repair the disorder. Although this necessity originates from the objective exigency (of ourselves as objects), it affects the subject, because of the identity of object and subject. The subject now expects compensation and, if this is not willingly proffered by the offender, is moved to make the offender repent by punishing him. The punishment, considered relative to the exigency of the human being as obje ct, is called `chastisement'; considered relative to the offended subject, who naturally desires recompense, it is called retaliation. I repeat: there is no natural right to retaliation distinct from that of chastisement, but this right does exist in union with the right of chastisement.

According to human nature, human beings desire only a retaliatory chastisement for an offender, not simple retaliation. The reason is obvious: moral exigency (moral obligation) proceeds from real human beings in so far as they have a relationship with ideal human beings, that is, the exigency does not proceed from the subject as such but from the subject as object; it is the ideal human being, that is, the idea of human being, the objective human being, which enlightens the mind and says to it: `This real human being requires respect.' Thus, ideal or object human being is the law; real or subject human being is the title to which the law is applied. Obligation in potency comes from the law, but potential obligation itself receives its actuality from the title. Ideal, object human being differs from real, subject human being: the former is eternal; the latter (a temporal thing) has indeed an essential but only a dependent relationship to the eternal. Thus , because obligation does not come from the real human being, he cannot have in himself the full right to retaliation, which he receives from the very same source as that of his own subsistence. Granted then the eternal law and the moral necessity of chastisement when the law is violated, we have the concept of what can be called the right to retaliation, that is, not simple retaliation but retaliatory chastisement. Hence, retaliation must be inseparable from chastisement, that is, from penal justice, and be fittingly returned to the control of Him who alone is just and the sufficient dispenser of all justice.

1929. Penal justice is present not only in the concept of just retaliation but in all the functions of right in which we cause pain to our fellows.

1930. I say `In which we cause pain to our fellows', because, although the right to retaliation (as exercised by the supreme Being) and the right to punish are conceivable only together, the rights to defence and satisfaction can be conceived without necessarily having recourse to the right to punish. But inflicting pain on others, while not indispensable to these two rights, is inherently indispensable to retaliation.

1931. If the rights to defence and to satisfaction are therefore exercised without causing pain or loss to others, the right to punish, in such an exercise, is not present.
But it can happen that we need to use force and to inflict pain and loss in order to defend ourselves from others' injustice or to procure due indemnity from those harming us. In this case, the right to punish immediately becomes necessary to justify the pain or loss caused, because harming others is unjust if they are not guilty.

1932. Granted these facts we can easily demonstrate the existence of the right to satisfaction both in itself and relative to its special function in which it resorts to force and causes pain to others so that satisfaction is obtained. The existence of the right is shown as follows.
The right of ownership is an activity, and also a force of a subject. By it the subject keeps united to himself some good object, which he uses as he pleases. This union, protected by the moral law, is moral order. On the other hand, removing the object is moral disorder, and anyone who attempts removal is culpable, that is, an author of moral disorder.

Thus, if I use my activity and force in an attempt to re-assert ownership, that is, to re-unite with myself the thing from which I was unjustly separated, I am simply re-establishing moral order. To re-establish moral order is to be author of something upright, and all of us are capable of this. Therefore my right of ownership extends to this action, because such action is conformable to the indication of human nature (simple ownership) and not contrary to the moral order (right of ownership).

1933. Hence, if the right to satisfaction extends to inflicting pain or loss on an assailant, the reason is found in his guilt. That a guilty person should suffer punishment conforms to penal justice. When I inflict punishment on a guilty person, therefore, I do nothing contrary to justice: my right extends even as far as this.

1934. But we must note that in this case also, penal Right is not exercised directly by me. I use only the amount necessary to maintain my right of ownership; it is always the right of ownership I exercise. Penal justice simply renders possible certain functions of this right.

1935. All these arguments clearly begin from the principle that `the right of ownership can be exercised unlimitedly as long as nothing unjust or wrong in itself is perpetrated.'

1936. Such then is the nature of the right to satisfaction or indemnity. Its nature remains the same whether the right is exercised by a subject, by an individual in the state of nature or in the extra-societal state;(560) or even by society itself, the normal case when human beings are constituted in a civil state.

1937. We have already demonstrated the obligation to respect rights in whatever subject they are present. It would therefore be an error to seek the origin of the right of indemnity in the social contract, as some have done, or, as others do, to think this right changes its nature for human beings united in society.

1938. Those who hold the second opinion believe that the right takes its origin from public good. According to them, public good is the end of civil society.

But I repeat, it is false to say that the end of civil society is the so-called public good (the good of the majority). The end of civil society is the good of every individual, and therefore the common good (the good of all).(561)

1939. The right to satisfaction exists before civil society. If society judges harm and determines compensation, it does so solely by taking the place of the offended person and protecting him, just as any person could take the place of every offended individual, defending each one in turn. In this way society produces the common good without diminishing the rights of each member. If a society is attacked or harmed (crimes against the State) and defends itself, it is still defending the common good, because its existence is of equal concern to all, and all desire it as a protector of their rights. We can only add that the public good, or good of the majority, becomes part of the purpose of society simply in the case of the indirect beneficence which society is called to exercise, but not in the case of justice.

Hence, political laws, while leaving intact the rights of all, permit or promote some useful institution and thus have as their end the good of the majority, that is, the public good, which is founded when particular goods merge to produce the common good.(562)

1940. Summarising, we can say that the government of civil society, as representative and agent of the individuals composing it, has the right to punish the guilty as a result of one of the following:
1. the right to defence against future and probable harm;
2. the right to restitution against harm already perpetrated.

1941. Thus society exercises these rights:
1. for its own defence, when its existence is attacked (universal or common good);
2. for the advantage of every collective or individual person within it, whenever these persons have recourse to it, or it spontaneously assumes the defence of the innocent (particular good, which merges with every other particular good to become common good).

1942. For the right to satisfaction to be effective, the harm done must be verified.

1943. Probability of harm is not sufficient. Harm done to us must be certain, if we are to obtain satisfaction with force.

1944. To verify injurious harm, we need to know two things:
1. that which has to be proved;
2. how to prove it.

1945. These two things differ greatly from each other. What has to be proved can only be determined by the Science of Right in so far as it determines rights and corresponding obligations. The method of proof can only be determined by the Art of Critique, which makes known the value of the proofs.

1946. The Art of Critique applied to the verification of injurious harm differs greatly in the state of nature and in the civil state. In the state of nature people are generally judges in their own cause; in the civil state a third party is the deciding judge.
The kinds of proofs needed by a judge coming between accuser and accused are unnecessary for anyone judging his own cause. If a house-owner sees a thief escaping from his house with some of his possessions, he has sufficient proof of the crime. But without other witnesses or clues, the owner's assertion may possibly not be enough to convince the judge .

1947. In the state of nature the process of proofs of harm is much shorter than in the state of civil society where, besides a treatise on judiciary proofs, a procedure must first be established which regulates the way to find, organise and submit the proofs to judgment.

1948. Consequently the way of proving harm in civil society has both a necessary advantage and disadvantage compared with the way of proving harm in the state of nature. The disadvantage is that much of the real harm escapes legal proofs, which may not always be obtainable. The advantage is that passion is excluded from judgments about the harm done; a person judging in his own cause is usually under the influence of passion. Thus, the exclusion of passion prevents anyone either claiming satisfaction for imaginary, unreal harm or excessively estimating real harm. This is an invaluable advantage.

1949. Both the advantage and the disadvantage demonstrate that, although civil tribunals are very useful, they are not sufficient for accomplishing justice. They cannot, and therefore must not, render natural judgments (extra-societal) totally useless. To withhold private justice entirely from human beings would be to authorise injustice, and no civil legislation has ever pushed matters that far [App., no. 14]. Any government claiming to carry the responsibility of civil legislation as far as this would be invading the territory of private life and assailing the family, the individual, everything; in a word, it would have attained extreme despotism.

1950. But even the majority of the defects noticeable when positive law determines judiciary proofs and their procedure are unnecessary. These defects can easily be removed by continual improvement in legislation. Indeed, the authority of a government of civil society is never sufficient to permit it to require for its courts proofs which offer no proof, or to omit those which do offer proof, or to accept an inept in place of an effective procedure. In such matters a government is always obliged to enlighten itself, and permit free discussion without rejecting any enlightenment coming to it from any source whatsoever.

1951. We have discussed how harm must be proved, but it is no less important to know what must be proved.

In order to verify injurious harm, we need to prove three things:
1. the existence of a right in the person claiming to be harmed;
2. the fact by which the object of his right has been taken from him or harmed;(563)
3. that this fact is culpable, or rather it must not be proved that the harm happened by mere inculpable accident (on the supposition that human beings are generally considered to act reasonably).

1952. To prove the existence of right we must prove its constitutive elements, and this must be done for every right. Because a single action can offend many rights, each right must be proved; if the right is doubtful, injury to the right in question is also doubtful.

1953. The nature of certain rights (for example, the right of personship) is such that their mere enunciation is sufficient to prove them, as they pertain equally and inalienably to all human beings.

1954. Certain other rights are intimately connected with each other. For example, the right to the use of something is connected with the right of ownership, and the right to the pleasure obtained from the use of the thing is connected with the right to its use.

1955. Nevertheless, although a right may not always be proved, the rights naturally connected with, and rooted in it, are proved. Furthermore, certain results of a right escape our observation, affectivity and evaluation. In this case they are not yet rights posited in act.

It is very important to bear all this in mind because we find here the reason why certain actions, as we have already said, were at one time considered just and carried out peacefully but now are considered unjust. In earlier times, people had not taken possession of certain things with their understanding (intellectual bond) but have taken possession in modern times. A very clear example is found in slavery. In times of poor human development, many slaves did not want to come out of slavery when their masters offered them freedom. Among the Hebrews, a law and punishment did not suffice to make them all accept freedom.(564) By the very fact of preferring slavery to freedom such people certainly showed that they had not yet taken jural possession of their activity. Consequently slavery did not arouse any jural resentment in them. Today, on the contrary, civilised people resent even the slightest bond or restriction.

1956. Physical pain helps us to appreciate this better. Because it does not always activate our intelligence and will, physical pain does not always have the same value for everybody. It is of less importance to uneducated people, not because they feel less but because the pain they feel is judged less by their intelligence. The history of humanity demonstrates this. At various times and at different levels of active intelligence, physical pain was very differently evaluated by humanity; in certain periods we find people much more patient towards wrongful treatment and physical vexations than at other times.

1957. Finally, in order to evaluate the price, so to speak, of a right, we must note the following rules which derive from what we have said.
1. The increase in value given to things of sentimental importance is not calculated if the attachment is depraved, that is, if it depends on a vice or on a personal weakness, but the increase is calculated if the attachment depends on a virtuous or naturally human sentiment. We have no right to depraved pleasures; we have a right to natural and virtuous pleasures.

1958. In any discussion on injuries and harm, therefore, we must not calculate all those infinitely variable circumstances which are caused by disordinate attachments of the human heart. If the offended person should feel greater pain because of such attachments, his rights are not thereby increased; he must impute the increased pain to himself.(565)

1959. On the other hand, we must calculate natural attachments, like those of father, son, spouse, etc. We must evaluate these relative to a just average of their actuation in a particular society according to the judgment of wise people.

1960. Virtuous attachments, at least those which are simultaneously natural and virtuous, and are in the highest degree legitimate and proper to the person who possesses them, ought generally to be calculated in the same way, as we said. Supernatural, perfect virtue however cannot be compensated on earth because it truly contains within itself all pleasure and restitution.

1961. 2. When harm involves a good which has a monetary equivalent and can therefore be restored by compensation, it is enough to estimate:

a) the value of the thing (in addition to the just attachment to it); and
b) the benefit deriving from this value during the time the possessor was deprived unjustly of the thing. In addition to this value, we need not determine the use of the thing, the pleasure derived from it, etc., because these are already contained in its current value.

1962. Hence we must observe in general that harmful consequences can no longer be evaluated separately if their value is also included in what is given as compensation for the harm. When however this value is not included, it must be satisfied separately, no matter how remote and indirect the harm may be.(566)
We must therefore have recourse to the difficult and insufficiently known theory of the value or worth of things in order to make at least an approximately just evaluation of the harm that sometimes occurs in a very long series.

1963. Not all harm can be satisfied in the same way. If it consists in stealing another's property without harm or destruction to the property, the harm is satisfied by returning the identical thing to its owner. This is the first way: returning the thing.

1964. But if something profitable was stolen, a cow, for example, then clearly the value of the calves which the cow would have borne, of the milk given and the manure during the time the owner was deprived of the beast, must be paid to him in addition to the value of the cow. The only payment excluded would be for the maintenance of the animal sustained by the thief during the time of its forced detention. This is the second way: returning the thing together with compensation for its products.

1965. If what was stolen, besides producing benefits, was also useful, and the owner, all things being considered, had suffered further harm because of the loss of its use, this harm caused by the non-use of the thing must be evaluated and restored. Let us suppose that the cow belonged to a poor farmer who had no means of acquiring another. He would not be able to work or manure his field, with a consequent notable loss of produce and inevitable privation to his family. This serious, painful harm must be compensated by the thief the farmer clearly has reason on his side. This is the third way: return of the thing together with compensation for the harm arising from the loss of its use, calculated according to the length of time of non-use, and within this time, the need and the opportunities for using it.

1966. If the thing has perished and cannot be returned as it was but its value can be established, indemnity is effected by compensation, that is, the equivalent is given in place of the thing the fourth way.

1967. Sometimes however the harm does not consist in determined things but is multiple and general, maliciously caused by another. In this case the author of the harm compensates by removing the cause (of calumny, let us say) and, if that is not enough, makes up for the harm done by some further compensation. Some call this way of compensating the harm (by removing the cause) restitution, the fifth way.

1968. Finally, if spiritual things are involved, that is, dishonour or pain, without the removal of any material goods, the harm is restored by lending the victim something useful and enjoyable which in his opinion makes up for the harm, hurt and ignominy suffered. This way is called satisfaction, the sixth way.

1969. It is clear that returning the thing in its identical condition is the way prescribed by natural law; all other ways are simply a substitution for the non-restitution of the thing.

1970. It is also clear that the three kinds of satisfaction, attestative, honorific, and pecuniary, can and must be rendered, separately or together, according to the nature of the harm done. And if several are contemporaneously necessary for full reparation, it is an error to claim to be bound by only one of them, and nonsensical to ask which is the best of the three.

1971. Before we can apply the relevant just satisfaction to each way of doing harm, we need to classify all possible harm. As far as I know, this has not yet been fully done.

1972. One of the difficulties in compiling an accurate classification would be the effort to list specifically all important consequential harm. All harm is prolific and produces further harm. We must therefore start with the origin of harm, that is, its source, and follow it to its completion; we must faithfully record its development and ramifications. It is true that theoffender is not always responsible for all this series of impairments because, as we said, he neither could nor need foresee all of them. Nor does satisfaction have to be equivalent to the harmful consequences of the first harm, because what is given as satisfaction for harm produces its own consequences and ramifications of good, each of which should be counted in favour of the offender who satisfies the harm he has caused. Nevertheless, the following two questions are very different and must be considered individually:
1. What is the total harm from a natural series of impairments?
2. What is the total good from a natural series of benefits given in satisfaction?
If justice is to be satisfied, these two totals must be exactly equal.

1973. If I were asked how to classify all the harm done from its origin and thoughout its ramifications, I would say this is impossible without reducing the harm always and ultimately to the loss of some good (or to the imposition of the contrary evil, which for brevity's sake is understood), and without making the classification of harm match the exact classification of good. But all good is reduced to pleasure, if we take this word in its widest sense of `good feeling'. Therefore the classification of good should be reduced to listing 1. pleasures and 2. the means which directly or indirectly produce these pleasures.

The means, it must be noted, are either different from us or are in us. Moreover, occasions for activating them are themselves means, the possession of which together with pleasures, leaves in us good effects (if, as we suppose, the pleasures are good), that is, they leave us more perfect and ennobled. Thus these effects are also classified among what is good. Finally, because the awareness of our own perfection, nobility and happiness is itself a good which completes our fulfilment, we must also take into account the signs of our perfection and nobility, consciousness of which is produced in us by the signs. These signs also produce a favourable opinion (our honour, our good name) about us in others. This is the division we could usefully make of various kinds of good as objects of a right, and therefore of impairments. It could be expressed by the schema shown overleaf.

Schema -Objects of Rights

1974. Granted an injurious, harmful action, therefore, we must calculate, relative to all the eight given classes of good, the amount of harm or loss necessarily caused by the action through the fault of its author. We also need to calculate the quantity and quality of evil that has resulted.

1975. We must note in fact how the medieval world - a time when society felt the direct influence of Christianity more strongly, despite a lack of culture in art and literature - included spiritual consequences in its calculation of harm. The modern world however limits itself strictly to immediate, material harm. This is certainly true when we compare today's legislation with medieval laws.

1976. Is it perhaps the fleeting effect of materialism and impiety that has so much influenced the world in the past three hundred years? Will laws acquire a more spiritual character when these accidental causes cease and liberated Christianity is able to exercise once more its natural, spiritual influence over civilised nations?(567)

1977. Finally, something must be said about the procedure to be followed by the victim in the state of nature if he is to obtain the indemnity due to him.

Rational right prescribes the following rules:
1. If restitution is impossible, it cannot be claimed.

1978. In murder, the victim cannot be restored to life. Restitution for murder therefore can only be made relative to its consequences. The living relatives and friends must be compensated for all the resulting harm.

1979. This explains why nearly all laws, particularly the Mosaic law, punish the killing of an adult with greater severity than that of a baby.(568)

1980. 2. Restitution for harm culpably inflicted must be distinguished from restitution for a debt innocently incurred.

Humanity requires a more lenient settlement for an innocent debtor than for a guilty debtor. If a guilty debtor persisted in his fault and in the evil disposition which caused the harm, he would make himself unworthy of the limitation which humanity applies to the force used against him by the creditor for the purpose of extracting due restitution, and which we have restricted to double the value of the harm. In this case, the restitution of culpable harm must, if possible, be made, no matter how harmful to the persistent offender. On the other hand, the creditor can never exact his money from the person to whom he lent or gave it as a deposit if this causes excessive harm to the debtor. If the person holding the money on deposit or on loan could not restore it without endangering his life or suffering very serious hardship, he would not, according to rational, human Right, be held to restitution.

1981. Hence some civil laws, in harmony with the law of reason, forbid the creditor to deny the debtor the means of subsistence, because, as the Mosaic law says, it would mean taking his life.(569)

1982. This then is the moderation with which alone we can use our rights if, by using them, we do not wish to harm others. If our ownership is strictly bound with others' ownership, we must prefer to forego ours rather than offend theirs. When duty and right conflict, the observance of duty must be preferred to the exercise of right.

1983. For the same reason the innocent author of harm is not bound to restitution except in quantum factus est ditior [in so far as he has profited from the harm], as in the case of a possessor in good faith.

1984. On the other hand, when harm has been unjustly inflicted, the offender can only blame himself if in making restitution he experiences grave distress and loss. Charity and human kindness can limit the distress but strict justice clearly prescribes unconditional restitution (provided restitution is possible) at whatever cost to the person responsible.

1985. Consequently two quantities are involved in the fulfilment of restitution:

i) the amount of restitution required of the offender;
ii) the amount of harm he himself suffers, which can also depend on the way he makes restitution.

1986. The first quantity equals the exact amount of harm done. Any errors in this amount will result from the wrongful evaluation of the harm I have already discussed. In the case of the second quantity, this must be the least possible.

1987. Provided the offended party is compensated without loss, he must not readily deprive the offender of reasonable comfort.

1988. Civil society, which accepts responsibility for determining the best way to make restitution, must not refuse any suggestion enabling it to determine more easily the best way of all, so that the least harm is done to the offender. If it rejects such a suggestion, it is guilty of injustice(570) as the willing cause of unnecessary harm. However such harm, when unavoidable, is excusable.

1989. 3. The offended party, who has the right to be compensated for the harm suffered, must not exact his retribution angrily or with the fury and blindness that result from anger. This is a consequence of the principle: `Everyone must use his rights in the least burdensome way possible towards his fellows.'

1990. If mere instincts could constitute a right, the right to anger would certainly be possible. Such a right would in fact be the natural right, common to animals, which the authors of Justinians Institutes mistakenly imagined. Natural right co-exists with rational right. Hence we said that `the offended party must be satisfied when fully compensated in such a way that the offender suffers least harm in making restitution.'
Consequently, if `the offender is ready to make full and just restitution, the offended party, who no longer has a right to use any force, nor to compensate himself by his own effort, must happily accept the restitution offered.'

1991. Such moderation in the exercise of the right of restitution was always known even to the Gentiles. When the Spartans were dissatisfied with the fair restitution offered them by the Thebans, Aristides rightly said that the just cause had passed from the Spartans, who were in the right, to the Thebans, who at first were in the wrong.(571)

1992. This argument supplies an easy answer to the difficulty about self-defence on the part of an offending party against an offended party who uses force to claim restitution. If the offended party intends to use force, despite an offer of full, just compensation, the offending party can defend himself on the grounds that he also has been harmed and offended. Indeed, if the offended party obstinately continues his unnecessary recourse to violence, his action becomes subject to the suspicion that he is dissatisfied with the restitution due to him. Rather, he seems to claim more than the offender owes him.

1993. 4. Even when we are obliged to use force to exact due restitution, the same principles indicate that this must be done with the least harm to the offender; we must not claim from him more than the true value of the harm we have suffered through his fault.

1994. 5. Finally, if the harm is not certain, we cannot demand reparation. However, if the harm but not its amount were certain, the least certain harm must be accepted or an amicable settlement reached.

Notes

(556) Reg. 27, in 6.

(557) In the case of a moral good under attack, it may appear contradictory to allow a right to defence, but not a right to satisfaction after a person has been seduced and robbed of virtue. Careful consideration however indicates that in the case of defence, where we wish to defend ourselves from seduction by forcefully repelling its occasions and means, we not only do not consent but we show ourselves opposed to the seduction. Here there is real injury and harm to the right we have of not being prevented from obtaining moral good. But when we have given in and been despoiled of moral good, the injury ceases precisely because we have given in. This is the only way moral good is lost, and because no injury is done to anyone who knowingly consents, no right to satisfaction is involved.

It is true that we can afterwards repent of our action and in doing so reject the seduction held out to us by declaring it contrary to our will. But this new state of will cannot restore to us our original right. Consequently, the seducer cannot in any way make restitution for the moral good whose loss he has merely occasioned rather than caused; its restitution, like its loss, depends on us. However, both we and the seducer deserve punishment. But this pertains to penal right, not to right of satisfaction.

It is also true that anyone who has given scandal to another has the obligation both to end the scandal if it is permanent and, if the scandal results in seduction, to give edification by compensating the person to whose loss the scandal has contributed. But the duty of giving edification is not an object of coercion, and does not therefore pertain to right. Hence, either the person is converted to good, in which case satisfaction is no longer necessary, or he remains in his evil, in which case he himself desires no satisfaction.
Everybody therefore has the right to defence against anyone who attacks their morality. Moreover, the assailant deserves punishment whether the desired fall is obtained or not. But there is no right to satisfaction unless some other harm has been done during the attack.

(558) Cf. PE, 66-68.

(559) Cf. CS, 115-140, for what I have said about the first form in which human beings feel the force of the moral law. I have shown that the objects themselves known by us act as law and exercise its obligating force.

(560) By extra-societal I mean that part of the state of nature which remains after civil society has been instituted.

(561) Cf. SP, bk. 2.

(562) Cf. SP, bk. 4, c. 8.

(563) This fact must be a jural fault because `no one does harm unless he does what he has no right to do'. A jural fault can consist equally in a positive fact as in the non-execution of obligations.

(564) Ex 21.

(565) This is Gioia's principal error in Dell'ingiuria, dei danni, del soddisfacimento, e relative basi di stima avanti i tribunali civili. His so-called `bases of evaluation' are very often mutually contradictory and without solidity because taken from the accidents of human nature, not from its constant, universal laws. They are also based on the resentment revealed in human beings as a result of disordinate attachments and vices. This resentment can never indicate the true amount of harm, which is determined solely by what I have called JURAL, MORAL RESENTMENT.

(566) Civil laws sometimes limit restitution solely to immediate, direct harm. For example, the Albertine code prescribes: `In cases where non-fulfilment of an agreement arises from the dishonesty of the debtor, the harm and interest relative to the lost suffered by the creditor, and the profit he was deprived of, must be extended only to the immediate, direct consequences of the non-fulfilment of the agreement' (art. 1242). It is difficult, in the light of rational, natural Right alone, to justify this limitation placed on restitution by positive law, at least in the case of real harm. Relative to interest, there is no absolute question of harm because interest produces interest only in those conditions of society in which the flow of money is rapid. It seems to me that Gioia was mistaken in condemning absolutely this limitation imposed by civil codes (Dell'ingiuria, etc., pt. 1, bk 3, sect. 3, c. 3). Moreover, r ational right requires restitution of all certain, necessary harm (that is, arising necessarily from the evil action as from its cause), even though it is mediate, indirect, and remote from the evil action. This applies in so far as the harm could and should have been foreseen by the offender. It is perhaps this last clause that common sense and the sense of legislators see as a great limitation placed on restitution.

(567) `The basis used by modern codes for determining satisfaction is solely the successive feelable changes in things. Barbarian codes however joined invisible changes in the spirit to visible changes of things. Thus, while the former codes are content if the value to be restored equals the value destroyed, the latter desire much more.
`To be convinced that our times are deficient compared with antiquity, let us take the total displeasure caused us by the destruction of something through harm, etc.' (Gioia, Dell'ingiuria, dei danni, etc., pt. 1, bk. 3, sect. 3, c. 2, §2).

(568) In Exodus 21 it is laid down that the death of a foetus resulting from blows to the pregnant mother is punished simply by compensating the father in accordance with the determination of the judges and the claim of the father (note here how moral restitution is taken into account). The child is granted no right of its own, but is considered as something belonging to the father. However, if the mother dies from the blows, the perpetrator is punished with death.

(569) Deut 24. - In the Middle Ages, when States began to write constitutions, one of the first rights to be recognised in agricultural workers was that of not depriving them of the tools with which they gained their living. In the English Magna Carta, which King John signed on 19th June 1215 in the field of Runnymede, many rights and privileges were granted and guaranteed to the clergy, the barons, the lower nobility, to cities and the people, but only a single article was included in favour of the peasants. It said that `they could not be deprived, by any penalty, of their ploughs, wagons and other agricultural implements.' We see how important this right, or at least the need to protect it, was considered.

(570) Schmalz says that only a jural, not simply an ethical duty can be imposed on a people: `The former can only be observed and violated externally; the latter consists solely in a disposition of the spirit. The former submits external actions to rules conforming to the dignity of right; the latter tends to give the spirit a power, that is, an internal sanction. A spirit of internal feelings, as attributed to an individual, cannot be attributed to a people; a people is a moral person whose existence rests solely on external actions.' This is clearly a paralogism. Certainly, a people considered abstractly exists only in external signs, but their government exists, as also does the person who acts on their behalf and represents them. These are the real persons who must exercise ethical duties conceived as joined to the collective person called `nation' or `people'. Schmalz himself, perhaps because he senses the difficulty of hi s observation, adds: `Is there no moral duty incumbent on a people?' and replies that the body politic, which is helped by the duty, must perform it. But the body politic, if capable of performing the duty as something helpful, can surely perform it as something upright? (Cf. Le Droit des gens européens, bk. 1, c. 1).

(571) History shows many examples of princes who, under the pretext of demanding restitution or satisfaction for harm and offences sustained by them, gave free rein to their ambition or to some other ignoble passion. Although Pontius the Samnite returned the booty taken from the Romans and handed over the author of the war, the Romans were not satisfied. According to Titus Livy, the Samnite said: `The divine anger against us, caused by the broken treaty, has been expiated. I know well enough that the gods who wished to force us to surrender the booty did not intend that the Romans should so proudly spurn our expiation of the treaty.' We see from these words how the divinity was always considered as the supreme vindicator of justice, almost as subsistent justice itself. It was also thought that the war which the Romans wanted to fight, when just satisfaction had already been offered and given them, could not appear just to divine eyes. Among the best known cases of this kind of injustice is that related by Zonara of the emperor Argiropoulos against prince Calepius who offered peace and payment of the remaining tribute. Another, against the Crusade, is found in Cromero, bk. 17; another is Charles of Burgundy against the Swiss, who offered full compensation for a stolen wagonload of pelts (Comines, bk. 7).

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