Property and taxation in the Summa

Thomas’ teachings on property rights reflect the extensive thinking of his predecessors on superflua and the way in which it relativizes property rights above the threshold of nécessitas.³⁵ While accepting the view that property rights are conditional in the realm of superflua, as discussed before, Thomas defended individual rights to property. The legal historian J. M. Kelly calls Thomas’ doctrine of property rights “the first elaborate justification of private property.”³⁶ Property rights are a morally privileged baseline for Thomas in that they are “necessary to human life.”³⁷ In Thomas’ zero-sum understanding of the economy and resource allocation, however, any amounts over and above what is necessary rightfully belong, in some sense, to others. Thomas’ prince, moreover, is right to “exact” from his subjects that which is due him “for the safeguarding of the common good.”³⁸ While Thomas insisted on the importance of property rights, his is a highly nuanced account. The excavation of Thomas’ philosophy of taxation in this chapter is set in the context of his balanced doctrine of property.

This chapter focuses initially on property. The implications of Thomas’ ideas about property for taxation emerge later in the chapter. The account herein of Thomas’ philosophy of taxation is partly constructive, as his explicit remarks about taxation are few. This chapter, therefore, follows the method represented by Jean

Porter’s Ministers of the Law, in which the author states her intention to “offer a constructive account of legal authority as a natural relation, taking my starting points from early scholastic legal and political thought, and developing these in conversation with contemporary philosophy of law and political theology.”³⁹

Question 66 of Secunda Secundae of the Summa arises from the tension between private appropriation of exterior things and their availability for common use. Because it focuses on exterior things, Question 66 centers on theft and robbery—the sins regarding things possessed rather than sins against the person. Article 8 of Question 66 is particularly relevant to taxation because it considers the taking of private property by public authority.⁴⁰ The question Aquinas seeks to answer in Article 8 is whether robbery can be committed without sin, in light of the fact that robber}' “implies a certain violence and coercion.” The only sort of robbery that can be committed without sin turns out to be “robber}'” conducted by public authority: “(I]n human society no man can exercise coercion except through public authority.” Rulers, according to Thomas, are entitled to exact “that which is due to them for the safe-guarding of the common good, even if they use violence in so doing.”⁴¹

There are limits, however. If the rulers take something “unduly,” their exactions revert to the category of robber}'. Thomas writes in his reply to objection 3 in Article 8: “[I]f they extort something unduly by means of violence, it is robber}' even as burglar}' is.” In other words, Aquinas carves out of private ownership a space for the public taking of property. Nevertheless, the language of private ownership remains dominant within the limited scope of Article 8.

In the broader context of Question 66 as a whole, however, the language of private ownership is balanced by the language of common property, as the possession of external things comes into tension with God’s authority over things. Article 1 explains that human possession of external things is only “natural” from a certain perspective. When external things are considered in their use {ad usum), humans have a “natural dominion” over them, because (1) by their reason and will (2) humans are able to use them for their own profit, (3) as they were made “on account of’ humankind {quasi propter se factis~). Considered in their nature, however, exterior things are “not subject to the power of man, but only to the power of God Whose mere will all things obey.”

Article 2 approaches the connection between humans and exterior things from a different angle: what is “relevant to man” {competunt homini). First, humans can procure and dispense external things, and the fact that humans have this power makes it lawful {licitum est) for them to possess things. Lawfulness proceeds, in some sense, from power. Moreover, according to Article 2, possession of things is not only lawful but also “necessary to human life” in that (1) people are more careful to procure what can be theirs than what is common to many or all, (2) order (as opposed to confusion) requires a division of labor, and (3) contentment, which ensures peace, arises from having something of one’s own.

When Aquinas says in Article 2 that the human power of procurement makes possession lawful, he means “lawful” according to positive rather than natural law. Reply to objection 1 in Article 2 makes it clear that division of possessions arises from “human agreement,” which is a matter of positive rather than natural law. Natural law prescribes community of goods. Natural law, however, does not preclude division of possessions. Positive law adds to natural law rather than conflicting with it. Positive law filters natural law through practical reason so that it can apply to particular circumstances.

Within Article 2, however, the matter is not that simple. Even in the use of things—in fact, especially in the use of things—a human being “ought to possess external things, not as his own, but as common, so that, to wit, he is ready to communicate them to others in their need.” To import the language of Article 1, the nature of things impinges on their use. In the language of Article 2, the human power to procure and dispense is circumscribed by the common good. More generally, positive law’s addition to natural law is only an addition. It does not alter the requirements of natural law in any way. Thomas is clear on this point: “But if in any point [a human law] deflects from the law of nature, it is no longer a law but a perversion of law.”⁴²

With respect to the ownership of property, natural law necessarily transforms the content of positive law. In terms of Article 7, “whatever certain people have in superabundance is due, by natural law, to the purpose of succoring the poor”; therefore, “each one is entrusted with the stewardship [dispensatio] of his own things, so that out of them he may come to the aid of those who are in need.”⁴³

Ownership becomes stewardship, or, more precisely, ownership of supèrflua becomes stewardship. Thomas makes this point in his discussion of liberality: “According to Ambrose . . . and Basil . . . excess of riches is granted by God to some, in order that they may obtain the merit of a good stewardship [bonae dis-pensationis]."^ And again: “Now the use of money consists in parting with it.”⁴⁵ Stewardship is an operative principle on the community’s side of the equation as well. As noted above, “that which is due to” the princes is due them “for the safe-guarding of the common good.”⁴⁶ The stewardship premise is implicit in the tithing context too. The pope is evidently entitled to demand tithes from anyone, even the clergy, because “natural reason dictates that he who has charge of the common estate of a multitude should be provided with all goods, so that he may be able to carry’ out whatever is necessary for the common welfare.”⁴⁷ That tithes are “necessary for the common welfare” apparently' means that they “should be employed for the assistance of the poor.”⁴⁸

A full account of the interplay of natural and positive law in Thomas’ doctrine of property' requires the introduction of his conceptions of justice, equality', and indebtedness as well. The next section begins by summarizing the connection in Thomas’ thought between justice and right, then moves to the association of justice with a kind of equality' and shows that equality' is best understood in terms of indebtedness. As developed in subsequent sections, indebtedness is integral to a Thomist conception of taxation in that it supplies a moral imperative for the redistribution of resources from those in possession of them to those in need of them.

Debitum

Justice, for Thomas, is “the perpetual and constant will to render to each one his right.”⁴⁹ This suum cuique definition, which Thomas took from Justinian’s Digest (527),⁵⁰ points simultaneously both inward and outward. Justice is not the mere “doing of something just.” It is a habit, not simply an act, and thus an inner disposition of a person. For Thomas, however, justice also focuses on external acts rather than on passions, and differs from the other moral virtues accordingly.⁵¹ Etienne Gilson writes that, for Thomas, the moral virtues governing the passions “permit the virtuous man to keep them in a just mean in relation to himself,” while the virtue of justice “seeks this just mean in the relationship between two things that are outside the virtuous man himself: his act, and the person whom his act concerns.”⁵² In Alasdair MacIntyre’s account, Thomas’ justice is the one virtue that is peculiarly concerned with relations with others.⁵³ Nevertheless, justice has this in common with the other moral virtues: “the just mean it seeks is the mean of reason.”⁵⁴ That is what makes it a moral virtue. Although the just mean lies outside the virtuous person, in the relationship between the act and the person whom the act concerns, the relationship in question involves the virtuous person’s act and the good of the person concerned as determined by the reason of the actor. In other words, the actor’s own reason is a necessary component of a just act.

At least three aspects of Thomas’ idea are identifiable: justice is an inner disposition that takes root as a permanent feature of the will; this inner disposition demands and finds expression in rendering to others what is due them; and what is due them is determined by a norm, i.e., a standard of “right” (jus). lus defines the relationship of each person to other people, as in Roman law. It defines that relationship because ius itself “is what is rightly owed to another, either in accordance with the natural law or with positive law.”⁵⁵

The interior component of Thomas’ justice means that justice produces judgment. Reason issues judgments about what is right for another, but only when “the origin and cause” of the decision are governed by the virtue of justice in the one pronouncing the decision.⁵⁶ That is, Aquinas does not think of justice as a static condition that inheres in things or even in acts. He thinks of it as a habit that determines rationally what is due another.

However, to speak of the judgment of judges, or the judgments of a just person, is to use language metaphorically. Strictly speaking, as Gilson points out, only a ruler issues judgments: “[T]he judgment which defines justice is the privilege of the head of the State, for it is he who establishes positive rights by promulgating laws.”⁵⁷ The judgment of a judge, who applies the laws, is a judgment by extension; and the personal judgment of an individual—based on reason—is judgment by analogy.⁵⁸

Justice, therefore, is preeminently a virtue of the ruler. Thomas says that justice “is in the sovereign as a master-virtue [virtus architectonica].”^w The relationship that is informed by rights may be, and often is, one in which one person is subject to another. Thomas’ prime example of this kind of “right” is the relationship between father and son. The son is “part of’ the father in some way (quodam-modo est pars eius). The English translations tend to say that the son “belongs” to the father. More literally, “the son is something of the father” (filius est aliquid patris).⁶⁰

There is a relationship of “right,” however, in which neither person is subject to the other. This is a relationship of “strict right,” to use Gilson’s term.⁶¹ It arises when the two people are both “subjects of the ruler of the state” {ambo stmt sub uno principe civitatis).⁶¹ “Right” is tied to relationship in both cases, but is more indirect in the latter, that of “civic justice.”⁶³

This is not to say that rights are arbitrary concessions on the part of the sovereign. The ruler’s rational determination of right is guided by a principle. Thomas thought of justice as denoting “a kind of equality” (importat enim aequalitatem quondam).⁶* The translation “equality,” however, is a misleading term. The Latin original, aequalitas, may just as easily mean “equivalence” or “proportionality.”⁶⁵

Unlike the modern idea of equality, Thomas’ aequalitas has content because it is connected to debitum, the word that is usually translated “duty.” Paraphrasing Thomas, Gilson writes: “To perform an act of justice is to render someone his due in such a manner that what is rendered is equal to what is owed. Thus two notions are inseparable from that of justice, the notion of debt and the notion of equality.”⁶⁶

Debitum is inevitably translated as “duty” in English. At its root, however, debitum is “debt” in an accounting sense. Metaphorically, to be sure, it means “duty,” but in the sense of the proportion of something in the law of nature. Even at this level it is far from a deontic “ought.” The theologian Eugene Rogers writes: “We are not true to Aquinas if we allow debitum to float free of display and diagnosis and mean the great Kantian duty in the sky.”⁶⁷

When Thomas says that something is a debitum, he means that it has aequalitas, or equivalence, to something physical or something in nature. In this sense, we can say that debitum is objective. Political philosopher Martin Rhonheimer calls debitum something “given, based on objectively existing circumstances.”⁶⁸ Debitum is objective because it denotes “indebtedness.” My debitum to someone else is not what I ought to do for him or her, but something that I have that actually belongs to the other person. The philosopher Joseph Magee describes a debitum as something that is, paradoxically, both owned and yet lacking to the owner.⁶⁹ Thomas made this point in his discussion of restitution in the Summa, where he writes, “That which is not due to another is not his properly speaking.”⁷⁰

In the case of material possession, Magee argues, something can be owed to the one who owns it if it is temporarily in the possession of another: “I may own a car and have lent it to a friend. When he has finished using it, he owes me the return of the car in the condition that I lent it. While my friend is borrowing the car, I at once own it and am owed its safe return.”⁷¹ To anticipate the discussion below, the riches of the wealthy are in some sense “borrowed” from the poor, to whom they naturally belong and to whom they must be returned at the appropriate time, according to the terms of the “loan.” The poor continue, in the meantime, to “own” what is “owed” them.

This equating of debt and ownership would have been, and remains, foreign to the categories of civil law. From a legal standpoint, it must remain paradoxical. Debt in this sense is primarily a moral concept. Ins is the pre-moral cognate of debitum. lus in its broad, primary sense only takes on moral meaning—and, thus, the measure of obligation (debitum)—when law (entailing reason) applies to it. Elmer Gelinas explains the pre-moral quality of ius:

The word /«iis first used to signify the just thing itself. This is hardly justice in the sense of a moral virtue. It has to do with an appropriate commensu-ration or equality of things-, for example, the property exchange value of a job is so many dollars. Interchangeability of things is the primary sense in which ius is used. Thus the terms “proper,” “fitting,” “appropriate,” “even,” or “equal” would seem to convey the amoral sense of ius as signifying the equality of things.⁷²

Debitum arises once reason enters into the apprehension of what is fitting, i.e., when consequences are compared. This is another way of saying that the fitting action has now taken on a moral character: “Moral obligation is thereby acknowledged and the correlative moral character of the fitting (i.e., right) action, now seen as debitum, emerges.”⁷³ The quality of debitum, therefore, makes ius a moral obligation and turns aequalitas into iustitia.

The following section ties the foregoing outline of the connection Thomas makes among iustitia, ius, aequalitas, and debitum to the measure of material goods, nécessitas.