Bracton: Thorne Edition: English. Volume 2, Page 23

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Volume 2, Page 23

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[001] what law is and what custom, without which one cannot be just, so as to do
[002] justice and give just judgment between man and man. ¹‘Justice is the constant
[003] and unfailing will to give to each his right.’ This definition may be understood in
[004] two ways, according as justice is taken to be in the Creator or in the created. If
[005] in the Creator, that is, in God, the matter is clear, since justice is the disposition
[006] of God which in all things rightfully orders and justly disposes. God himself gives
[007] to each man in accordance with his deserts. He is neither variable nor inconstant in
[008] his dispositions and wills, but is constant and unfailing. For he had no beginning,
[009] nor has nor will have any end. The definition may be understood in another way,
[010] that justice is in the created, that is, in the just man. The just man has the will
[011] to give to each his right, and thus that will is called justice. His will to give each
[012] his right refers to what is intended not to what is done, as the emperor is called
[013] Augustus not because he always augments his empire but because it is his intention
[014] to do so [and] as matrimony is said to be an inseparable conjoining because the
[015] parties intend never to be separated though they may afterwards be separated for
[016] just cause. Thus justice is said to be constant, in accord with the definition.²
[017] [Justice may also be understood in another way, according to the definition] which
[018] defines justice as in the created: by the word ‘will,’ ‘mind’ may be understood,
[019] and by ‘constant,’ ‘good,’ for constancy is always taken to be good; hence the
[020] saints are said to have been constant,³ and⁴ we say ‘O the constancy of the martyrs!’
[021] ⁵By the word ‘unfailing,’ ‘habit’ may be understood [also by the word ‘constant’],
[022] ⁶‘Be ye constant,’ for constancy does not admit of variation,⁷ as though the
[023] definition read⁸ ‘justice is a good habit of mind’ or ‘the habit of a mind well
[024] constituted’⁹ or ‘justice is a willed good,’ for it cannot properly be called good unless
[025] will plays a part. Remove will and every act will be indifferent. It is your intent that
[026] differentiates your acts, nor is a crime committed unless an intention to injure
[027] exists; it is will and purpose which distinguish maleficia.¹⁰ As for the words
[028] ‘his right,’ they mean his merited right, for because of delict or a pact broken or
[029] the like one is [de jure]¹¹ deprived of his right. Or say¹² ‘to each’ means to him, that
[030] he live virtuously, and to God, that he love God, and to his neighbour, that he not
[031] harm him.¹³ Or say¹⁴ ‘suum jus&rquo; means ‘her right,’ that is, [to each what justice
[032] entitles him to]; she is called justice¹⁵ because in her all rights reside.

What jus is.

[034] ¹⁷Jus is derived from justice and is used in a number of different

Notes

1-3. Azo, Summa Inst., 1.1, nos. 1-2

2. For the problem and the solutions supplied by the glossators, Cortese, ii, 9-16

4. ‘et’

5-16. Azo, Summa Inst. 1.1, no. 2

6-7. ‘Item Constantes ... variationem,’ from lines 22-3

8. ‘quasi diceret,’ as Azo

9. E. Kantorowicz, 108 n.; Cortese, ii, 7-9, 20-23

10. Infra 289, 290, 375, 384; Cortese, ii, 36, 246 n.

11. As Azo

12. ‘vel dic,’ as Azo

13. Placentinus, Summa Inst. 1.1: ‘quod dicitur ius suum cuique intelligi debet non individualiter, sed generaliter, id est, Domino et sibi et proximo ...’

14. ‘vel dic,’ as Azo

15. Om: ‘ius,’ as Azo, MB

17. Supra i, 113-15 (full collation); Br. and Azo, 23-25, 31; the first sentence transposed above, as Azo

17-18. Azo, Summa Inst. 1.1, no. 3; Cortese, ii, 26