Natural Law's Modern Cousin Germain: Rights Talk

HUMAN RIGHTS OR NATURAL RIGHTS ARE here to stay, and so we must become accustomed the "grammar of rights" though it does not fit perfectly into the natural law without some accommodation. The accommodation, however, needs to be from the end of right, not from the end of law. Morality ought not change so as to accommodate rights. Rights ought to accommodate to the good. (And for Finnis human rights are nothing less than moral in origin.) Rights talk ought to accept a "grammar of morality," the grammar of the natural moral law. Else rights cannot find a sound basis, and without basis seem to be the favored tool of the unscrupulous, the powerful, the clever, or those with their hands on propaganda machines who use the vehicle of rights to advance agendas that are nothing less that vice writ large, and advance an immorality institutionalized and writ into law.

With that caveat, however, it remains true that the principles of natural law can be framed in the language of rights, and that "the modern grammar of rights," at least according to Finnis, "provides a way of expressing virtually all the requirements of practical reasonableness." NLNR, 199. There is, however, something lost by expressing moral realities in rights language rather than in law language or duty language. The insight that one obtains from framing issues in terms of duty or in terms of law must not allow these classical formulations to be treated as unwanted cousins. In other words, we ought to be comfortable speaking of duty and law at the same time we speak of right.

Wesley Newcomb Hohfeld

Not only do we forget duties when we sound off on rights. We are sloppy in our rights talk. So the first thing that Finnis does in his treatment of rights is to focus on the subtle language that is involved in rights. He does so by adopting (and adapting) the language of the short-lived American scholar, Wesley Newcomb Hohfeld (1879-1918). The effort of Hohfeld to disambiguate the term "rights" is a remarkable achievement.

Finnis encapsulates the Hohfeldian effort by distinguishing four basic "Hohfeldian rights":

1. a "claim-right" (which Hohfeld calls a "right stricto sensu," a right in the strict sense);
2. a "liberty" (which Hohfeld calls a "privilege");
3. a "power"; and
   
4. an "immunity".
   

Distinguishing rights into these four general categories, Hohfeld then suggested that rights need to be understood within a "three-term relation between one person, on act-description, and one other person." NLNR, 199. Applying the triadic schema with the four-fold division of rights, we get the following expansion of rights:*

1. A has a claim-right that B should φ, if and only if B has a duty to A to φ.
2. B gas a liberty (relative to A) to φ, if and only if A has no claim-right ("a no-right") that B should not φ.
3. B has a liberty (relative to A) not to φ, if and only if A has no claim-right ("a no-right") that B should φ.
4. A has a power (relative to B) to φ, if and only if B has a liability to have his legal position changed by A's φ-ing.**
5. B has an immunity (relative to A's φ-ing), if and only if A has no power (i.e., a disability) to change B's legal position by φ-ing.**

NLNR, 199. All of a sudden "rights" become saddled with a matrix of more intricate language, and we speak of claim rights, of no-rights, of a liberties, of duties, liabilities, immunities, and disabilities. In the area of rights as we commonly discuss them, however, the notion of "claim-right" and "liberty" appear to be most important.

If A has a claim-right, then B has a correlative duty. If A's claim-right positive, then A can require something of B (to be given something, to be assisted in exercising the claim-right to φ). If A's claim-right is negative, he has a right not to be interfered with or dealt with or treated in a certain way by B. A has a liberty to φ (or not to φ) if he is free of any duty to B in the matter, which means that B has no claim-right over A that A not φ (or φ).

If A's claim-right or liberty involves more than B (i.e., also involves C, D, etc.), then that claim-right or liberty is multital.

A claim-right and a liberty are distinct, but are not mutually exclusive. Accordingly, A may have both a claim-right and a liberty to φ.

Hohfeld's rights analysis seems to suffer from one weakness, and that is that commonly people do not talk about a three-fold relationship when it comes to rights (A, B and φ). Usually, people talk in a two-term manner: A has a right to a subject matter, to a thing. Unfortunately, speaking of rights in a two-term manner disguises how rights for one person may be an obligation (and, therefore, a loss of rights or liberty for another). When a homosexual claims his "right" to marriage, does he ever think about how and who his "right" may effect? What sort of obligations he will impose on others? NLNR, 201.***

The relationship between claim-right and duty appears to present a problem when rules or rights are translated into the Hohfeldian schema. If B has a duty, when is A said to have a claim-right? There are two possible answers which a person who wants to translate a rule or a right into the Hohfeldian schema must choose:

1. A has a claim-right that correlates to B's duty if and only if there is a person A for whose benefit that duty has been imposed on B, which is to say that A is to be the recipient of B's performance consonant with his duty.
2. A has a claim-right that correlates to B's duty if and only if there is a person A who has the power to remedy B's disregard of that duty by judicial remedy.
   

NLNR, 202-03.

But, pulling away from the technical Hohfeldian analysis, Finnis sees the problem as a little more basic, more fundamental than merely translating rights into more precise Hohfeldian formulations and choosing what stipulation one wants in adjoining claim-rights to duties:

[T]here is a philosophical problem not to be solved by stipulation. This is the question: What, if any, is the underlying principle, unifying the various types of relationships that are reasonably said to concern 'rights'? Or, more crudely: Is there some general explanation of what it is to have a right?

NLNR, 203. At heart, the difference in which stipulation one should use is the difference between one's vision of rights. Are rights to be considered as benefits or interests (so that A's claim-right involves "benefits" or "advantages")? Or are rights to be considered as vehicles which respect choice? The first stipulation views rights as benefits or interests, whereas the second stipulation would emphasize the importance of choice or will.

But for Finnis, the decision is not required:

[I]t is not necessary here to settle the dispute between the 'benefit' and the 'choice' theories . . . It suffices that . . . we may safely speak of rights wherever a basic principle or requirement of practical reasonableness, or a rule derived therefrom, gives to A . . . the benefit of (i) a positive or negative requirement (obligation) imposed upon B (including, inter alia, any requirement not to interfere with A's activity or with A's enjoyment of some other form of good) or of (ii) the ability to bring it about that B is subject to such requirement, or of (iii) the immunity from being himself subjected by B to any such requirement.

NLNR, 205.

This was all rather tedious. Let's see where Finnis goes with it.

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*A and B signify persons, but they need not be individuals, they can be natural persons or corporate persons (e.g., the State or business entities). The symbol φ represents an act-description.
**In 4 and 5, the act φ has juridical connotations. In other words, it involves a juridical act or a legally-cognizable act such as buying, selling, leasing, granting, conveying, marrying, paying, adjudicating, enacting, etc. NLNR, 200. In 1, 2, and 3, the act φ can be either juridical in nature or natural (with or without juridical import), e.g., walking, hitting, traveling by plane, defaming.
***All this seems laboriously technical, but Finnis explains that the "persistence of 'two-term' 'thing-oriented' rights talk" in conjunction with the "'three-term' 'act-oriented' schema of rights" becomes important when certain natural rights (e.g., the right to life) are discussed.

Natural Law's Modern Cousin Germain: Commutative Justice

THE CONCERNS OF JUSTICE DO NOT MERELY encompass the relationship between the community as a whole and the individual in the matter of the distribution from (and contribution to) the goods of (or the obligations to) the community. Justice also encompasses the relationships between the individual and individual, including an individual and the officials of the community. The interactions between individuals is the focus of commutative justice.

This, of course, is much in keeping with Aristotle, who himself divided his treatment of justice into distributive justice (διανεμητικὸν δίκαιον or dianemētikon dikaion) (Nicomachean Ethics, 1132b28; 1132b 24, 32) and "corrective" justice (διορθωτικόν δίκαιον or diorthōtikon dikaion) (e.g., Nicomachean Ethics, 1131a1, 1131b25, 1132b25). The latter dealt with the relationships between individuals, the synallagmata (συναλλάγματα) or arrangements between citizens. The synallagmata (συναλλάγματα) was understood broadly by Aristotle, and included voluntary types of arrangements (business contracts) as well as involuntary dealings (crimes, defamation). Aristotle's notion of "corrective" justice is somewhat narrowed by the fact that he viewed this aspect of justice in terms of restitutionary or compensatory notions, and not just arrangements prior to the breach of duty, either in contract or in tort. St. Thomas Aquinas expanded the Aristotelian category of corrective justice or diorthōtikon dikaion and expanded it to include exchanges before (as well as after) any breach, and so used the term justitia commutativa from whence we derive our notions of commutative justice. (Cf. S. T. IIaIIae, q. 61, a. 1.) It ought to be noted that the division of justice into distributive and commutative is one of convenience, and that these categories are not necessarily mutually exclusive, as there are problems of justice that would encompass issues of distributive and commutative justice both. The enforcement of a private contract by a judge, for example, includes aspects of commutative justice (arising from the contract) and distributive justice (arising from the obligations of the judge as official of the community or as a result of his ability to tax costs associated with the litigation).

"Commutative Justice" by Ambrogio Lorenzetti
(Palazzo Pubblico, Siena)

As a result of the commentary of Cajetan (Thomas de Vio), the Aristotelian/Thomistic bifurcation of justice was trifurcated into the relationships of the whole to the part, the parts to the whole, and the parts to each other, resulting in distributive, legal, and commutative justice, respectively. NLNR, 185-86. The triadic division has had its influence in improperly focusing the area of distributive justice as something that is the bailiwick of the State. However, the obligations of distributive justice are not limited to the State, and in fact may not in all cases be properly or principally the obligation of the State. Every individual owner of property has obligations to the common good in distributive justice. Accordingly, a very wealthy man (and in fact any man, but a wealthy man has greater obligations arising from his greater wealth and disposable income) ought to recognize that he holds his property not free-and-clear of obligations to the common good, but with implicit, but nevertheless real, obligations to handle his private holdings in a just manner relative to the common good. It would be better, it would seem, as less intrusive, for a wealthy man to consider his obligations in distributive justice by dispensing from his wealth to charity, or using his wealth to promote a new business and employment, or helping to support public institutions of higher learning, for example, rather than the State imposing highly-progressive income taxes or high estate taxes for the purpose of wealth or income redistribution. In this sense, however, the State's taxes aimed at redistribution may be "corrective" in the sense that they enforce a pre-existing obligation which the owner of private property has failed voluntarily to do.

Natural Law's Modern Cousin Germain: Distributive Justice, Part 2

WHAT ROLE IS IT THAT EQUALITY has with justice? For Finnis, equality is fundamental to the notion of justice generally and therefore of distributive justice as well. The equality at issue is one where "all members of a community equally have the right to respectful consideration when the problem of distribution arises." This stems from the notion that like cases ought to be treated alike, a fundamental aspect of the rule of law and equality under the law. For Finnis, however, equality is a "residual principle," one that takes effect only if other principles, more fundamental, "are inapplicable or fail to yield any conclusion." The residual nature of equality stems from the end of justice, which is not equality, but rather is the common good. The common good is not necessarily most promoted by "treating everyone identically when distributing roles, opportunities, and resources." NLNR, 174.

Naturally, the common good is an elusive concept, particularly one difficult to determine in actual practice. As Finnis notes, there are "no very precise yardsticks for assessing" the common good and when it demands intervention in the distribution of goods and when inequality becomes detrimental of the common good. There are many criteria, there are multiple vantage points, and so there is "no one criteria universally applicable for resolving questions of distribution." NLNR, 174.

The "primary criterion" for intervention appears to be need for a basic human good. Human need requires more urgent response than human want. But even need is not an absolute principle. It has its own attenuating factors:

[Need] is, however, subject to considerable discounting in the case of those whose indigence either results from their own unreasonable unwillingness to exert themselves for their own good, or is imposed upon them as lawful punishment for their culpable self-preference and harmful indifference to the good of others.

NLNR, 174.

A "second criterion" identified by Finnis relating to just distribution is function. Here, the focus is not on the need for a basic human good, but on the "roles and responsibilities in the community." NLNR, 175. Another criterion identified by Finnis include capacity, both to one's "roles in communal enterprises" and in terms of "opportunities for individual advancement. In distributing flutes, the principle ought to be "flutes to flute-players," not "flutes to everyone." Something frequently neglected is the question of distributive justice is deserts and contributions. Someone--whether as a result of self-sacrifice or as a result of meritorious application of effort or ability--ought to be recognized as having claim to something more than one who has not exerted himself similarly. The negative side of that criterion is that of distributing losses. It is fair to distribute burdens unequally, and to impose a greater share of those burdens on persons who have created or who have foreseen and accepted avoidable risks associated with certain behavior. These costs ought to be internalized to the ones who caused them. So, for example, the costs of cleaning up environmental damage arising from, say, the production of batteries should be borne not by the public generally, but should be borne to greater extent by those who have caused the environmental problem (which may be both the producer of batteries and the consumer of batteries).

In discussing distributive justice, however, we ought not forget that the focus is personalist in nature, not consequentialist. The focus is on what practical reasonableness requires of people in dealing with other people, not implementing or promoting a particular state of affairs.

And what is thus required of a particular person depends essentially on what responsibilities he has, whether by virtue of his own voluntary commitments (e.g. his assumption of rulership) or by virtue of his past or present receipt of benefits from another (e.g. as a child, in relation to his parents), or by virtue of the dependence of others upon him (e.g. as a parent, in relation to his children), or by virtue of a network of relationships of actual and potential interdependencies (such as exist strongly, for one set of reasons, amongst members of a family living unit, and strongly, for another set of reasons, amongst members of a sound political community, and to a lesser but increasing extent between the communities that together make up the whole community of mankind).

NLNR, 175.

In short, the problem is a complex one, and there are no ready, clear, and inarguable rights and wrong. The role of prudential decisions, with their breadth of choices and options, allows for many answers to the thorny questions of proper distribution of a community's goods within the greater demands of distributive justice. This is not an area where mathematical equations can be applied to yield--presto!--answers to questions of distributive justice. And yet the lack of "precise and unqualified directives of reason" in making decisions of distributive justice ought not to be used as an excuse for the irresponsible avoidance of these decisions, or for excessive tolerances of unfair distribution. Additionally, the lack of such precision of the personalist aspects of distributive justice ought not to tempt us to more facile consequentialist solutions to the problems.

Here the feeling that it is difficult or impossible to find norms for definitively apportioning one's efforts in differing degrees amongst different potential beneficiaries seems to link up with the assumption that justice is primarily a proper of states of affairs and only derivatively a property of particular decisions of ascertained person; and this combination of unformulated assumptions yields to a peculiarly utilitarian concept of justice.

NLNR, 176-77. When consequentialist or utilitarian concepts of distributive justice steal in, the principle of "treat like cases alike" becomes transformed into "each person counts for one and only one," and human justice is ripped out of its personalist, communitarian and organic character and forced into some individualist, mechanist, and mathematical mode.* Prudence is replaced by mathematics. Ultimately, these utilitarian or consequentialists versions of distributive justice are inhuman and unjust. They ought therefore be rejected:

[I]n thinking about justice, we should go further and reject the principle of [utilitarian or consequentialist justice], so plausible prima facie, that 'each person counts for one and only one'; for this principle is not reasonable as a principle for the practical deliberations of anyone. Of everyone it is true that, because of his promises, and/or his parenthood, and/or his debts of gratitude, and/or his relations of interdependence with or assumption of authority in relation to ascertained persons or communities, he cannot reasonably give equal 'weight', or equal concern, to the interests of every person anywhere whose interests he could ascertain and affect.

NLNR, 177.

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*We are blinded by these facile "one-to-one" formulae. For example, the principle "one person" "one vote" seems to be a common formulation of the right of franchise, but it has its intrinsic viciousness. Why, for example, should the vote of a father who supports ten children through hard work and self-sacrifice have the same weight as a homosexual who lives a hedonistic, self-regarding life, spent in gay bars and self-indulgent materialism? It would seem that in distributing the right of franchise, distributive justice viewed from a personalist perspective would see that the sacrificial father's vote ought to be weighted 11 to 1 relative to the selfish homosexual.

Natural Law's Modern Cousin Germain: Distributive Justice, Part 1

JUSTICE MAY BE SAID TO BE PART of the requirements of practical reasonableness arising from life within community. It is intricately related to the notion of the common good. Indeed, Finnis defines justice as:

An ensemble of requirements of practical reasonableness that hold [sic] because the human person must seek to realize and respect human goods not merely in himself and for his own sake but also in common, in community.

NLNR, 161. Finnis identifies three elements always found in justice: (i) other-directedness; (ii) duty; and (iii) equality. Each of these elements deserves a little elaboration.

"Other-directedness" identifies the fact that justice involves relationships with other persons, and thus involves inter-subjective or inter-personal relationships. Strictly speaking, one cannot be just to himself; there must be at least two persons and a practical situation or some interaction between them for justice to enter into the scene. (The expression "doing justice to oneself" is "justice" only loosely, and involves a sort of artificial division of self. Indeed, this is what Plato does in comparing the justice among men with the "justice" within man. In his famous description, Plato divides man into three "selves" or component of self: reasonableness, desire, and spiritidness: justice within the state is nothing other than justice within the soul write large: "καὶ δίκαιον δή," he tells Glaucon in his Republic, οἶμαι φήσομεν ἄνδρα εἶναι τῷ αὐτῷ τρόπῳ ᾧπερ καὶ πόλις ἦν δικαία." “Just too . . . I presume we shall say a man is in the same way in which a city was just.” Rep. IV, 441d.)

From William Blake's "Marriage of Heaven and Hell"

The question of duty is intrinsic to nature: it involves the notion of "debt" or debitum, and "owing" of something to someone. Famously, justice is defined as suum cuique, to give to each his own, which implies debt or obligation. Duty has another face: right. Where there is right there is duty; where there is duty there is right. Justice implies right; injustice implies wrong.

Equality is a third element in justice. However, the term equality must not be taken in a strict sense, but in an analogical sense. The equality is a fitting equality, and includes a sense of proportion or fittingness, or of equilibrium or balance. The equality here is not a Procrustean equality: the equality here is encapsulated in the Blakean insight: "One law for the lion and ox is oppression."

In a sense, any failure of practical reasonableness by an individual who is living in community will affect relations in the community. Accordingly, this is why "justice" as a virtue is frequently seen to comprehend or include all other virtues. This justice, which is more a quality of character (habitus) might be defined as "in its general sense," as an "always a practical willingness to favour and foster the common good of one's communities." NLNR, 165.

Finnis adopts the traditional classifications of justice: distributive justice and commutative justice. This traditional division reaches as far back as Aristotle, who himself divided his treatment of justice into distributive justice (διανεμητικὸν δίκαιον or dianemētikon dikaion) (Nicomachean Ethics, 1132b28; 1132b 24, 32) and "corrective" justice (διορθωτικόν δίκαιον or diorthōtikon dikaion) (e.g., Nicomachean Ethics, 1131a1, 1131b25, 1132b25) which dealt with the relationships between individuals, the synallagmata (συναλλάγματα) or contractual arrangements between citizens. We shall discuss distributive justice in this posting and the next, and commutative justice following that.

Justice in the abstract is not really justice; there must be justice in the concrete circumstances of life in the community. Justice is not a vague internal disposition alone; it is an active virtue that is found within the concrete circumstances of life in common and therefore is intrinsically tied with the common good. As one particularizes from general justice, one may identify two broad classes of problems that arise in co-ordinating the "ensemble of conditions for individual well-being in community" which give rise to the classical division of general justice into two basic prongs of particularized justice: distributive justice and commutative justice.

First, there are issues arising from the distribution of resources and burdens of communal life. How do we distribute educational resources among the population? How do we distribute the taxes among the people? These and similar questions relating to the distribution of resources and burdens of the common stock among the community are the questions of distributive justice. The proper allocation of resources and burdens of communal life through application of the requirements of practical reasonableness is known as distributive justice. The issues that relate to the individual well-being in a community with respect to his individual relations with other individuals or groups involves questions of commutative justice. Distributive justice is thus more public in focus, whereas commutative justice is more private in focus, though both involve life in common.

Within the context of distributive justice, justice may be defined in this manner:

A disposition [of common or public resources or burdens] is distributively just, then, if it is a reasonable resolution of a problem of allocating some subject-matter that is essentially common but that needs (for the sake of the common good) to be appropriated to individuals.

NLNR, 166-67.

Finnis categorizes the "subject-matters" that may come within the scope of distributive justice into three: (i) natural common resource or common stock; (ii) produced common resources or common stock; and (iii) the incidents of communal enterprise (the tasks, labor, expense of life in common). The first involves matters like the natural resources within the boundaries of a community: its energy resources, its lands, forests, rivers, etc. The second involves products of common life: weapons, sea-walls, dikes, roads, public buildings, public enterprises, public treasury, etc. The third involves things like public offices (policemen, judges, etc.) and financing the public fisc (taxes, borrowing).

The issue of "common enterprises" or "public enterprises" is given further treatment by Finnis since these features of life in common can become overweening or unbalanced as a result of wrong perceptions or emphases of the common good. The "common good" ought not to be understood in a purely communal or communistic sense. The "common good" comprehends within it notions of individual good:

The common good which is the object of all justice and which all reasonable life in community must respect and favour, is not to be confused with the common stock, or the common enterprises, that are among the means of realizing the common good. Common enterprises and the exploitation and creation of the common stock of assets are alike for the common good because they are for the benefit of individual members of the community. . . . An attempt, for the sake of the common good, to absorb the individual altogether into common enterprises would thus be disastrous for the common good, however much the common enterprise might prosper.

NLNR, 168. In short, the "common enterprise" or "common stock" was made for man, not man for the "common enterprise" or "common stock."

It is therefore a fundamental aspect of general justice that common enterprises should be regarded, and practically conducted, not as ends in themselves but as means of assistance, as ways of helping individuals to 'help themselves' or, more precisely, to constitute themselves.

NLNR, 169. The Finnisian notion of the common good is not an advocacy of communism or socialism, but is one biased in favor or the individual and private initiative since it is grounded upon the "principle of subsidiarity," which for Finnis is itself a "principle of justice." NLNR, 169. The principle of subsidiarity sets itself against such an absorption of individual man into a monolithic state.

Thus, even if there are inefficiencies to the "common enterprise" as a result,* the common good and its ordering to individual good and self-direction, prevents the "common enterprise" from overcoming the individual. This is one reason why private ownership of property is, in justice, mandated.

The good of personal autonomy in community . . . suggests that the opportunity of exercising some form of private ownership, including means of production, is in most times and places a requirement of justice. . . . [A] regime of private ownership will be a requirement of justice, provided that the increased stock of goods yielded by such a regime is not hoarded by a class of successful private owners but is made available by appropriate mechanisms (e.g., profit sharing; trade under competitive market conditions; redistributive taxation; full employment through productive investment; etc.) to all members of the community, in due measure.

NLNR, 169. Yet private ownership is not an absolute right, since it must be understood within the context within which such right arises (the common good). There is no justification to be found in the right to private property for hoarding, for negligent administration of one's wealth, for unreasonable use of one's wealth in inordinate luxuries, in failure to put excess wealth to productive use, for the formation of oligopolistic or monopolistic ventures, for the exploitation of others. Finnis has a balanced view of the matter which, although lengthy, deserves full mention:

The point, in justice, of private property is to give the owner first use and enjoyment of it and its fruits (including rents and profits), for it is this availability that enhances his reasonably autonomy and stimulates his productivity and care. but beyond a reasonable measure and degree of such use for his and his dependants' or co-owners' needs, he holds the remainder of his property and its fruits as part (in justice if not in law) of the common stock. In other words, beyond a certain point, what was commonly available but was justly made private, for the common good, becomes again, in justice, part of the common stock; though appropriated to his management and control, it is now not for his private benefit but is held by him immediately for the common benefit . . . . From this point, the owner has, in justice, duties not altogether unlike those of a trustee in English law. He may fulfil them in various ways--by investing his surplus in production of more goods for later distribution and consumption; by providing gainful employment to people looking for work; by grants or loans to hospitals, schools, cultural centres, orphanages, etc., or directly for the relief of the poor. Where owners will not perform these duties, or cannot effectively co-ordinate their respective efforts to perform them, then public authority may rightly help them to perform them by devising and implementing schemes of distribution, e.g., by 'redistributive' taxation for purposes of 'social welfare', or by a measure of expropriation.

NLNR, 173.

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*This is conceded arguendo. In point of fact, as Finnis notes, the opposite is probably the case. Private ownership is, in most cases, more efficient than public ownership. As a "'rule of human experience," Finnis notes that natural and capital resources are more efficiently exploited and preserved and managed by private ownership than by public enterprises. Along with the benefits of private ownership, however, arises the danger of unjust hoarding by successful private owners and forgetfulness of the essential public role of private ownership. Ultimately private ownership is not for self-aggrandizement, but for the good of others, including "one's own," first, those most close, but also "one's own" in the sense of the broader community in which one finds oneself. Private ownership is one thing when the owner is greedy, exploitative, selfish, and not other-regarding, than when the owner is not greedy, is charitable, altruistic, and is other regarding. In the former instance, private ownership may become unjust, whereas in the latter instance, it may be just. Thus, one cannot say that private ownership is just irrespective of the intent or disposition of the owner. Therefore, private ownership implies the common good and must be understood within it. That is why Aristotle, for example, states that "property ought to be common in a sense, but private speaking generally . . . possession should be privately-owned, but common in use." Pol. II, 2:1263a26, 38-9; NLNR, 171. That is also why an appropriate view of private property will understand that "private ownership . . . is unconditionally just." NLNR, 172. Private ownership is conditionally just. There are "conditions which private owners must conform to if their ownership is to be distributively just." NLNR, 172. It is an error to be an absolutist in the right to private property. The Catechism of the Catholic Church (citations omitted) presents a balanced-natural law view on the matter:

2403 The right to private property, acquired by work or received from others by inheritance or gift, does not do away with the original gift of the earth to the whole of mankind. The universal destination of goods remains primordial, even if the promotion of the common good requires respect for the right to private property and its exercise.

2404 "In his use of things man should regard the external goods he legitimately owns not merely as exclusive to himself but common to others also, in the sense that they can benefit others as well as himself." The ownership of any property makes its holder a steward of Providence, with the task of making it fruitful and communicating its benefits to others, first of all his family.

2405 Goods of production - material or immaterial - such as land, factories, practical or artistic skills, oblige their possessors to employ them in ways that will benefit the greatest number. Those who hold goods for use and consumption should use them with moderation, reserving the better part for guests, for the sick and the poor.

2406 Political authority has the right and duty to regulate the legitimate exercise of the right to ownership for the sake of the common good.

Natural Law's Modern Cousin Germain: The Common Good and the Larger Community

THE FAMILY IS A FUNDAMENTAL, essential form of association, but it is not whole and complete within itself. A family that interbreeds will soon find itself in a genetic mess heap. Moreover, though a family may be large, it will still lack the economic robustness and specialization to flourish. Families need other families. "So there emerges the desirability of a 'complete community', an all-around association in which would be co-ordinated the initiates and activities of individuals, of families, and of the vast network of intermediate associations." NLNR, 147. Individuals, families, etc. are all better off in coordinating themselves, in placing themselves with this greater society than they would be without it, though it also necessarily comes with restrictions. The "ensemble of conditions" required for proper co-ordination necessarily requires both positive and negative (restrictive) co-ordinating principles--customs, rules, and laws, for example. This self-sufficient community Finnis calls the "political community" or the "body politic." It is within this political community or body politic strictly so called that we find politics and law in their fullness.

[T]he common understanding of the unqualified expressions 'law' and 'the law' indicates [that] the central case of law and legal system is the law and legal system of a complete community. That is why it is characteristic of legal systems that (i) they claim authority to regulate all forms of human behaviour . . . (ii) they therefore claim to be the supreme authority for their respective community, and to regulate the conditions under which the members of that community can participate in any other normative system of association; (iii) they characteristically purport to 'adopt' rules and normative arrangements (e.g., contracts) from other associations within and without the complete community, thereby 'given them legal force" for that community.

NLNR, 148. The coordination required for the life of this political community or body politic necessitates, as a requirement of practical reasonableness, law. Law participates in practical reasonableness and in its requirements that there be impartiality between persons, impartiality and openness to the basic values, and so forth. The political community, like all groups, must have a "sharing of aim," a sharing of aim with some stability over time, something more than just a "multiplicity of interaction," which gives them a sense that they are a "group." And this group aim and the coordination of the community with that group aim must accord with the requirements of practical reasonableness. NLNR, 153. The requirement of practical reasonableness upon law under the "ensemble of empirical conditions" under which the political community operates takes us into the area of "justice," distributive and commutative. Ultimately, the norms of practical reasonableness applied to coordination of this community lead to the "point" of the common good:

[The norms, practices, usages, conventions] of that arise in the coordination of a group] will be then be thought of as norms of and for the group, and the leader(s) will be thought of as having authority in and over the group. The 'existence' of the group, the 'existence' of social rules, and the 'existence' of authority tend to go together. And what makes sense of these ascriptions of existence is in each case the presence of some more or less shared objective or, more precisely, some shared conception of the point of continuing co-operation. This point we may call the common good.

NLNR, 153.

The concept of "common good" must not be thought of in a utilitarian sense (greatest good for greatest number). The vacuous, indeed irrational, consequentialist or utilitarian formula is made no better by taking it from the individual vantage point and expanding it into the political community. Rather, the common good** may be defined thus:

[The common good is] a set of conditions which enables the members of a community to attain for themselves reasonable objectives, or to realize reasonably for themselves the value(s), for the sake of which they have reason to collaborate with each other (positively and/or negatively) in a community. . . . [the common good being] the all-around or complete community, the political community subject to . . . the incompleteness of the nation state in the modern world.

NLNR, 155-56. The common good, broadly so defined, may also be called the "general welfare" or the "public interest."

The modern state seems overweening. "But we must not take the pretensions of the modern state at face value." NLNR, 149. We may be confronting not a norm, but an anomaly. [T]here are relationships between men which transcend the boundaries of all poleis,* realms, or states." And these relationships not only are within the boundaries of the modern state, but the relationships also go beyond the modern state into the global realm. The nation must not be so absolutized as to adversely affect these internal relationships nor to sever or minimize the international community into which nations must be coordinated.

What is the content of the common good of the political, or even the international, community? What is it that justifies (and perhaps limits!?) the functions and aspects of the political community we call states? The answer to this question--what is the content of the common good--takes us into the realm justice, authority, and positive law.
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*Plural for polis (Greek for city-state).
**There different "explanatory levels" of the common good. NLNR, 156. There is a "common good" more generally defined as encompassing human beings generally, "inasmuch as life, knowledge, play, aesthetic experience, friendship, religion, and freedom in practical reasonableness are good for any and every person." NLNR, 155. There is also the "common good" in the sense that each of these basic human values may be called a "common good," "inasmuch as it can be participated in by and inexhaustible number of persons in an inexhaustible variety of ways or in an inexhaustible variety of occasions." Finnis, however, uses the notion of "common good" in a way that is specific to the political community, but which does not contradict the first two broader notions. In fact the first two senses seem to inform the third sense which is quoted above.