LITMIR.BIZ

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is in accordance with

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      ius. However, that argument lacks force, since it is one thing to speak of relationship (ordine), or derivation, with respect to causality, and quite another, to speak of such relationship with respect to the act of denomination, or assignment of a name. For in the former sense, it is true that iustitia (justice) is derived from ius; derived, that is, from that which is in reality just and fair with regard to its object and, accordingly, with regard to its final, or formal and extrinsic cause. In this sense, indeed, iustitia is defined by ius, since, according to the Digest (I. i. 10), ‘Ius renders to each one that which is his due’. However, in so far as concerns the denomination and appellation of ius (the point of which Ulpian is speaking), ius could have derived its name from iustitia; just as ‘vision’ (visus) is such because it tends toward an object that is ‘visible’ (visibile), while the object nevertheless receives the appellation ‘visible’ from the very term of ‘vision’. In like manner, then, iustitia is such, because it tends to the establishment of equity, which we say is the just mean (medium iustum) itself; and at the same time, this mean has been enabled rightly to take the title of iustum from iustitia, since such equity is fitted to be established through justice and is therefore called ‘just’ (iusta). And thus the term ius may easily have been derived through the dropping of the last syllable of iustum; even as we said in the case of the word iussum. Isidore (Etymologies, Bk. V, chap. iii) also has spoken to this effect, saying: ‘Ius is so called because it is just.’ Augustine, too (On Psalm cxlv, near the end [§ 15]), remarks: ‘Ius and iniuria (injustice) are opposites; for ius is that which is just.’ Therefore, even as iustum is clearly so called from iustitia, so ius may have derived its name from iustum and iustitia, in so far as relates to the etymology of the term.

      3. Consequently, Augustine (On the City of God, Bk. XIX, chap. xxi) likewise deduces the following as a principle of the philosophers: ‘Because they call that ius, which has flowed from the fount of justice (iustitia).’1 For though ius may be, with respect to its object, the cause of iustitia, nevertheless, in the realm of efficient causality it is the effect of iustitia, since it is the latter which creates and sets up its own object, just as the other moral virtues do. Accordingly, if one were to consider this object in its potential aspect, it might be termed iustificabile (justifiable)—so

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      to speak—from the word iustitia, even as we were saying with respect to visus and visibile; but the term iustificabile is not in use, it is barbarous, and in its place the word ius (in so far as it denotes the object of justice) seems to have been introduced. And if, on the other hand, the object in question is conceived of in its active character, then it is said to be iustum (just), and may be called ius. For it is in this sense that Augustine’s statement has a proper application—that is, his statement that ius and iniuria are opposites—since iniuria is nothing more nor less than an unjust act. So it is, too, that he has said, in the second passage cited: ‘That which is done by ius (iure),2 is surely done justly (iuste).’3 And thus Bartolus (on the said law of the Digest [I. i. 10]) declared that ius in its active character is execution, and interpreted accordingly the law on which he was commenting. However, the same conception may very well be accepted with regard to ius in its potential aspect, also, that is to say, in its [potential] nature (in habitu); because, as I have said, the question is not one of causal emanation, but simply one of the assignment of a name, just as scibile (that which may be known) derives its name from scientia (knowledge), even in a potential sense (in habitu).

      Therefore, this third derivation is in no way unsuitable; and although it is uncertain which of these two conclusions comes nearer the truth, either one will serve for our present purposes.

      4. The meaning of the term ius. In accordance, then, with those two derivations of the term, the word ius has two principal meanings. These have been noted by Driedo (De Libertate Christiana, Bk. I, chap. x). For, according to the last-cited derivation, ius has the same meaning as iustum (that which is just), and aequum (that which is equitable), these being the objects of iustitia. Yet one must take into consideration the fact that the word iustitia has [also] two acceptations. In the first place, this word may stand for every virtue, since every virtue in some wise is directed toward and brings about equity. In the second place, it may signify a special virtue which renders to another that which is his due. Accordingly, the word ius conforms, in due proportion, to each of these two meanings [of iustitia].

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      For, in the first sense, ius may refer to whatever is fair and in harmony with reason, this being, as it were, the general objective of virtue in the abstract. In the second sense, ius may refer to the equity which is due to each individual as a matter of justice. This latter acceptation is more common, since ius so taken is most particularly wont to be related to justice in the strict sense. Thus, St. Thomas (II.–II, qu. 57, art. 1) has said that such justice constitutes the primary basis and significance of ius. And in consequence, he well concludes (ibid., ad 2) that ius is not lex, but is rather that which is prescribed or measured by lex. This view should, I think, be understood in a relative sense. For the laws which pertain to justice in the special sense [likewise] involve a special form of ius, that referred to in the above-mentioned strict acceptation of the term. Whereas lex understood in the general sense, and in so far as it may have a place in all the virtues, will look to ius in the broad and general acceptation of the latter term; in accordance with Cicero’s statement (On Laws, Bk. II [, chap. v, §§ 11–12]), that in the very name of lex there is inherent the essential force of that which is iustum and of that which promotes ius, inasmuch as true law ought to prescribe what is just and fair, as I also have declared.

      5. The true meaning of the word ius. According to the latter and strict acceptation of ius, this name is properly wont to be bestowed upon a certain moral power which every man has, either over his own property or with respect to that which is due to him. For it is thus that the owner of a thing is said to have a right (ius) in that thing, and the labourer is said to have that right to his wages by reason of which he is declared worthy of his hire. Indeed, this acceptation of the term is frequent, not only in law, but also in Scripture; for the law distinguishes in this wise between a right (ius) [already established] in a thing and a right to a thing; as it also distinguishes among rights of servitude or rights of rural or urban estates, rights of use or enjoyment, and similar rights, concerning which one may consult Brisson (De Verborum Significatione, Bk. IX, word ius, at great length). And in Scripture, we read that Abraham said (Genesis, Chap. xxiii [, v. 4]) to the sons of Heth: ‘Give me the right of a burying-place’ (ius sepulchri), that is, the power of burying (facultas sepeliendi); in another chapter (Genesis, Chap. xxxi [, v. 21]) it is said of Jacob that, when he departed from his father-in-law, he carried away with him ‘all

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      that belonged to him’ (Omnia quae iuris sui erant); and similar passages are frequent. Again, it would seem that ius is so understood in the Digest in the passage (I. i. 10), where justice is said to be the virtue that renders to every man his own right (ius suum), that is to say, the virtue that renders to every man that which belongs to him. Accordingly, this right to claim (actio), or moral power, which every man possesses with respect to his own property or with respect to a thing which in some way pertains to him, is called ius, and appears to be the true object of justice. Hence, ius is also wont to be given the connotation of relationship, as is stated in another passage of the Digest (I. i. 12); for, in such a context, the word seems to refer to a certain bond or connexion born of relationship itself. In this sense, one person is said to succeed by right (ius) of kinship; another, by right of adoption; yet another, by right of appointment or testament. So it is, also, that the Digest (II. xiv. 34) makes the statement: ‘The right of kinship cannot be repudiated;’ while another passage (ibid., XLVIII. xxiii. 4) declares that the right of kinship is restored to the son. It is consequently inferred that [the term ius] is applied not to the blood-relationship itself, but to the moral claim (actio), or faculty, born of that relationship. The same explanation holds in the case of other passages.

      6. Another meaning of the term ius. However, according to the other etymology, which derives ius from iubendum (ordering), the true meaning of ius would seem to be lex. For lex is based upon ordering (iussio), or command. The jurisconsults, indeed, often

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