The concept of restitution is analogous and can be used in a range of senses. Here it is understood in a sense broader than it has in classical moral theology. Making restitution can promote many goods, but it always contributes to that justice which is a mode of harmony among persons and the foundation of friendship and genuine community. Restitution, broadly understood, can be due on many diverse grounds. Sometimes just restitution restores a situation to what it had been, but restitution also can be due when that is impossible; and, even when possible, restoring the situation may not be appropriate. While law, custom, and other factors can help determine what justice requires by way of restitution, the only adequate standard for settling that question is the Golden Rule, directly applied to all the relevant facts. In making restitution, Christians should try not only to mitigate or overcome the harm or deprivation being unjustly suffered but to restore or build up interpersonal harmony and trust. For the sake of that same good, those to whom restitution is due should cooperate with those making it.
When an unjust state of affairs results from something that has been done or has happened, the injustice should be rectified. Restitution is one of the various kinds of acts which do this. It is not the same as making satisfaction for wrongdoing, though wrongdoers who bring about unjust states of affairs usually should make restitution. St. Thomas has an analogous concept of restitution, which classical moral theologians tended to narrow.
a) Different kinds of requirements of justice presuppose injustice. Justice requires respect for others’ fundamental rights (for example, not to enslave them) and fulfillment of commitments (for example, fidelity to treaties with them). These and many other requirements of justice presuppose only goods; they do not presuppose anything disordered. But some requirements of justice, including restitution, do: they are requirements precisely to undo, overcome, or forestall various aspects or results of injustice.
It is helpful to distinguish three other kinds of requirements from restitution. One deals with an unjust state of affairs by requiring that those with gifts and resources use them to meet the needs of victims of injustice. A second kind tends to undo or overcome injustice by requiring that something come about in the unjust moral agent: someone who has done an injustice must repent and do penance for the sin. A third calls on persons or communities whose proper role it is to deal with injustice to fulfill their responsibilities: when big brother mistreats little sister, a parent should intervene; when a crime is committed, the police should arrest the criminal.
b) Restitution differs from other acts which rectify an injustice. Like the first kind of requirement—that those with gifts and resources help meet the needs of victims of injustice—restitution’s point is to rectify injustice by benefiting its victims. Restitution differs, however, in that it concerns rectifying the injustice precisely insofar as it involves two particular parties: the one suffering it, and the one involved in either its coming about or its continuing to exist. Suppose Sally is extremely wealthy and her college roommate, Jane, is very poor: when the pen Jane needs to write her final examinations is stolen and she has no way of obtaining another, Sally should give or lend Jane a pen or the money to buy one. But that is not restitution, unless Sally stole the pen or (perhaps innocently) accepted it as a gift from the thief. On the other hand, if Jane, in a moment of weakness, steals a bottle of perfume from Sally’s ample stock, but repents and returns it, that is restitution, even though Jane’s resources are meager and Sally would hardly miss the perfume.
Unlike the second kind of requirement—to repent and do penance—the point of restitution is not to straighten out the unjust moral agent, but to rectify the injustice which is being suffered.62 If Sam is caught committing burglary, no doubt he should repent and do penance, and perhaps he should be punished, but he cannot make restitution of the goods he failed to steal; if Harold succeeds in burglary but returns the stolen goods solely to avoid being caught, he remains an unjust person—he still needs to repent and do penance—but he has made restitution.
Like the third kind of requirement (that those officially responsible for dealing with injustice do so), restitution rectifies injustice insofar as it affects others. But it differs in rectifying only injustice which is being suffered, whereas those responsible for dealing with injustice generally take a more inclusive approach, for example, the police not only try to return stolen cars to their owners but to catch car thieves and prevent and deter thefts. Also, those officially responsible for dealing with injustice should rectify injustices because that is their social role, not because a particular unjust state of affairs somehow involves them personally.
Thus, restitution can be provisionally defined: one party owes another restitution whenever, under all the existing circumstances, the first party ought to try to mitigate or overcome some harm or deprivation being suffered by the second for this reason: that the first party either was involved in the coming about of that harm or is in possession of something which the second should have.
c) This provisional definition differs from that of St. Thomas. St. Thomas builds up an analogous concept of restitution, beginning from the situation in which one person, having something which belongs to another, returns it. According to this view, even returning to the owner a borrowed item or something left for safe keeping is restitution (see S.t., 2–2, q. 62, aa. 1, 6). The provisional definition proposed above is not so broad, since it presupposes an existing injustice. However, it can be broadened by saying that actions necessary to forestall potential injustices constitute restitution whenever omitting them would be an injustice requiring restitution. Thus, returning a borrowed item or a deposit when appropriate can be regarded as restitution, since not doing so would unjustly deprive the owner of it and require restitution in the stricter sense.
d) Some classical moralists’ concepts of restitution were too narrow. In modern times, many approved authors of moral theology texts narrowed down the concept of restitution in one or more of three ways.
First, their focus on reconciling sinners in the sacrament of penance led many of them to think about and discuss restitution in the context of the requirements for contrition and absolution. In itself, this was reasonable, since sinners who owe restitution are not really contrite unless willing to make it insofar as they can. However, classical moralists mistakenly tended to think that, since readiness to make restitution is necessary for contrition, someone involved in the coming about of an injustice need not make restitution except to the extent he or she needs to be contrite. Many therefore ignored, denied, or limited the responsibility of restitution in cases involving unjust harm brought about by a person who sinned but not mortally, or who sinned mortally but without foreseeing the harmful consequences, or who even sinned mortally and foresaw harmful consequences but did not precisely intend the unjust state of affairs which actually resulted.63
Second, some of these moralists also at times thought of restitution as restoration, a view criticized below (in 4); they then assumed that when restoration is impossible, restitution is unnecessary.
Third, some also misunderstood a point St. Thomas makes: restitution is an act of commutative justice (that is, the establishment and maintenance of a fair balance between two parties) rather than of distributive justice (the fair sharing of benefits and burdens among members of a community) (see S.t., 2–2, q. 61; q. 62, a. 1). As was explained in the previous chapter (see 6.B.5.b), many classical moralists narrowed down the concepts of commutative and distributive justice. As part of that narrowing, they supposed that the two kinds of justice never are in play in the same act.64 For example, some thought that, because distributive justice requires fair sharing of civic responsibilties in levying and paying taxes, commutative justice is irrelevant to taxation; and from this they concluded that repentant tax evaders need not make restitution to the government.
Assuming, however, that the tax payments required by law really are a citizen’s fair share of the burden of financing governmental activities, fairness to the community surely requires that tax evaders pay what they owe; for they should have paid it when due, and successful tax evasion does not undercut the ground of their obligation (see 11.E.2). (If it did, the government would be unjust in requiring those whom it detects evading taxes to make good.) Of course, it might be said that this obligation is not precisely the duty of restitution, but an analogous responsibility pertaining to distributive justice, as the duty of restitution does to commutative justice. However, following the view of St. Thomas, it can be said instead that the duty to pay taxes is at one and the same time a matter of distributive and commutative justice.65 For, once distributive justice has determined what share is fair, the government, acting on behalf of the community as a whole, and the taxpayer are two parties between which balance must be reached by transferring precisely that fair share, no more and no less.66 If the government mistakenly takes too much, the taxpayer is entitled to a refund, just as if the government were a private business billing for its service. By the same token, if a citizen evades just taxes, they still are due to the government, no less than if an individual evades paying a private contractor’s fair bill.
Generally, restitution remedies some harm beyond the injustice itself. When individuals or communities suffer injustice by something another moral agent does or by being deprived of something, restitution usually helps the victim protect or pursue some good. For example, when Jane’s stolen pen is returned, she can use it to write her final examinations. This remedy of harm certainly underlies and contributes to the force of the obligation to make restitution. However, restitution can be required even though it will not remedy any harm beyond the injustice itself. For example, if Sally, the wealthy roommate, neither needed nor especially cared for the stolen bottle of perfume, and would readily have given it to Jane had she asked, Jane’s returning the perfume does not help Sally protect or pursue any good; yet the perfume’s theft made Sally the victim of an injustice by violating her right of ownership, and that right was vindicated when Jane returned the perfume. That restitution can be required even when it remedies no substantive harm makes it clear that the essential ground for the obligation resides in some good other than the proper good of the victim of injustice.
Restitution always contributes to justice—that interpersonal harmony which is the foundation of friendship and genuine community. If one of two parties involved in an actually or potentially unjust state of affairs should do something to rectify or prevent the injustice, doing it eliminates a likely source of conflict from their relationship. For those who should rectify or prevent an injustice but fail to do so cannot have good will toward those who suffer it, and the latter also have a motive for bad will toward the former. Thus, persisting injustice interferes with love of neighbor and so with the building up of the kingdom. Consequently, restitution essentially is necessary for the sake of friendship, genuine community, and the kingdom.67
As has been explained, individuals and communities can be required to make restitution in two general types of cases. In one, they have been involved in the coming about of an actual or potential injustice; in the other, they possess something alienated from its owner. Both general types are clarified by further specifications, which also make it clear that in many cases the general obligation to make restitution is reinforced by other specific responsibilities.
The point here is not that the obligation to make restitution is the same regardless of its grounds. Differences in the grounds on which restitution is required do affect how much restitution is due (see 5, below). The point is simply to clarify those diverse grounds.
a) Mortally sinful unjust deeds require restitution to their victims. The most obvious species of case in which involvement in the coming about of an injustice generates an obligation to make restitution is that in which the injustice has been caused by a moral agent’s mortal sin of injustice against its victim. With sufficient reflection and full consent, John wounds, sexually abuses, cheats, slanders, or in some other way harms Mary; the harm Mary suffers plainly is John’s fault; therefore, John should do what he can to remedy that harm.
In cases of this kind, the sinner’s responsibility to repent reinforces the duty to make restitution. Not only did John’s sin involve a grave defect of good will toward Mary; for him to continue to allow her to suffer the harm his mortal sin has caused will be inconsistent with a good will toward her, and he cannot repent without changing his bad will to good. Therefore, unless John chooses to do what he can to make restitution, he has not really repented.
This is so even if his bad will now has a different object than when he committed the injustice against her. Of course, he may have willed to harm her then and may will that she continue to suffer the harm now (the injustice is motivated by hatred and the object of John’s bad will remains the same); yet it may be that he did not hate her, yet willingly and unfairly accepted harm to her as a side effect of a choice with some other motive, and that he now has still another motive for refusing to make restitution. The object of John’s bad will is different; he may sincerely regret having harmed Mary in the first place and may only reject the self-sacrifice required to remedy that harm. But he has not entirely changed his bad will to good, and so his change of heart is not the moral reversal necessary for repentance.
Thus, when one person or community willingly harms another person or community by a mortal sin of injustice, the requirement to do something by way of restitution does not depend on whether the harm was intended as an end, chosen as a means, or only wrongly accepted as a side effect. Nor does it depend on whether the sinner foresaw the precise harm suffered by the victim, though how much and what sort of restitution is required might vary with the extent to which the harm was foreseen or should have been.
Those who formally cooperate in a mortal sin of injustice against some individual or community obviously incur the basic responsibility—to be willing and ready to make restitution to the victim—for the same reason the principal agents incur it. So do those who materially cooperate in a mortally sinful way, provided the grave wrongness of their material cooperation resides at least partly in their willingness to accept the injustice.
Of course, whether cooperators in injustice actually will be required to make restitution and, if so, how much of the burden they must bear, will depend on whether and to what extent the principal agent and/or other cooperators fulfill their responsibility to rectify the injustice. Once sufficient restitution has been made by any responsible party or parties, the victim no longer suffers harm, and so nobody owes further restitution, although those responsible still might have accounts to settle among themselves (see S.t., 2–2, q. 62, a. 7, ad 2).
If a victim of an injustice has received full compensation from his or her insurer, mortally sinning perpetrators of the injustice owe restitution to the insurer.
b) Other sinners can owe restitution for injustices their sins cause. Obviously, in cases similar to those just considered except that parvity of matter in the injustice makes the sin venial and the duty of restitution light, the logic of the responsibility—the reasons for it and its conditions—are the same as has been explained. For gravity or parvity of matter does not affect the relationships between those involved in an unjust state of affairs, between sinners’ wills and those wills’ objects, and so on.
In cases similar to the preceding kind except that lack of sufficient reflection and/or full consent makes the sin venial, the sinner nevertheless should be willing to make at least some sort of restitution to the victim, and the responsibility can be grave. For example, Harold, engaging in thoughtless gossip, slanders Irene by spreading the story that she is committing adultery, and the slander threatens her marriage. Learning that the story is false and that Irene is suffering harm due to his slander, Harold plainly has a grave obligation to do what he can to reassure Irene’s husband that she is faithful. Yet, when Harold spread the story, he thought it true, bore no ill will toward Irene, and did not foresee what would happen; his sin of slander was venial due to lack of sufficient reflection. Again, Irene’s husband, George, mistakenly identifies Pete as the supposed adulterer, takes him by surprise, beats him, and seriously injures him. In attacking Pete, George knows that what he is doing is gravely wrong, but, being very short-tempered and on medication prescribed to ease his stress, he never considers any alternative to beating Pete, such as not doing so. Although George’s sin was venial due to lack of full consent, when he learns from Harold that Irene never committed adultery, George certainly should do what he can to ensure Pete’s recovery.
Since Harold’s and George’s responsibility to make restitution is greater than their responsibility to repent their previous sins of injustice, the former responsibility plainly does not follow from the latter, and the latter does not significantly reinforce the former. However, Harold and George could and should be better men, and Irene and Pete suffer injustices resulting from actions which Harold and George would not have done had they been more prudent and self-controlled. Since their moral failings led to the injustices, Harold and George ought to rectify them, and the gravity of what Irene and Pete have suffered makes the duty of restitution grave.
Does it follow that one has a grave obligation to make restitution whenever one’s sin in any way causes an injustice? No. Under the circumstances, the very fact that Harold’s and George’s actions caused grave harms as they did is a sufficient basis for a reasonable person to apply the Golden Rule and judge that the two men should make restitution. But circumstances vary, and the ways in which one party’s sin contributes to the injustice suffered by another also vary.
c) Without sinning, one can incur the duty to make restitution. As was explained above (in 1.c), restitution in the broad sense does not presuppose an actual injustice. If harm has been done, the action required to remedy it can be considered restitution if omitting that action would be an injustice requiring restitution. There are various ways in which moral agents can blamelessly bring upon themselves the duty to make restitution in this wider sense.
First, both individuals and communities can do something sinlessly while foreseeing harms or risks of harms to others as side effects. However, those side effects sometimes are fairly accepted only if the moral agent compensates those who suffer harm. The compensation constitutes restitution in the broad sense, since failure to make it would be an injustice requiring restitution in the stricter sense.
An important species of this first way of blamelessly incurring the duty of restitution is the justified breaking of a promise which calls for compensation. Dynamo Electric promises to complete a job by a certain date but subsequently finds itself unable to make the deadline without taking a ruinous loss. Breaking the promise is justified, but Dynamo must pay damages specified in the contract. Again, Sam, Dynamo’s owner, promised to take his children to the zoo on Saturday, but breaks his promise in order to play golf with a very important potential customer. Sam is justified in disappointing the children, but should make it up to them, for example, by bringing home a special treat.
Second, without any sin on their own part, both individuals and communities can owe restitution for another moral agent for whose actions they somehow are responsible or whose responsibilities they inherit. For example, even parents who do their best to bring their children up well nevertheless should do something by way of restitution if one of their misbehaving children ruins the tire on a neighbor’s car by pounding a nail into it. Heirs should begin by paying the decedent’s just debts, and so, though without personal fault, owe restitution, insofar as the estate suffices, to anyone to whom the decedent should have made it but did not.
Third, unjust relationships between two members of a community resulting from a distributive injustice can call for restitution. For example, if a baby sitter who likes one twin and dislikes the other unfairly divides a treat which the parents had left for both, the favored child, though blameless, should remedy the injustice. Again, Sally and Jane, the wealthy and poor roommates, invite all the women on the corridor to a party; Sally is too busy to go shopping, and Jane uses her whole semester’s spending money for the party supplies considered appropriate at their school. As cohostess, Sally should contribute her fair share by reimbursing Jane for at least half the cost.
d) There are several species of the duty to return property to its owner. Just as the general duty of restitution for harms divides into several species, so does the general duty to return property.
Plainly, those who wrongly take another’s property or formally cooperate in its taking must return it or make good the loss. Wrongful material cooperators whose cooperation was sinful precisely by being participation in the injustice share the responsibility of restitution. In both cases, the duty of restitution extends beyond what was taken, to losses the owner suffered due to the wrongful taking, for example, interest which would have been earned on stolen money or the cost of temporarily replacing a stolen automobile.
But other wrongful material cooperators and even other sinners whose sinful acts contributed to the wrongful taking also can have a duty to make good the loss, just as they can have a duty to remedy other unjust harms to which they have contributed. For example, a house guest, warned to lock up because burglaries are common in the area, forgets the warning and leaves the house wide open while going for a walk. The house is burglarized, and the host suffers a loss not covered by insurance. The negligent guest should do something—precisely what is another question—toward making good that loss.
Those entirely blameless also can be obliged to restore to the owner property which is wrongly taken by a third party. Steve steals a necklace and gives it to his friend, Gloria, for her birthday. Gloria accepts it innocently, but later learns it was stolen. She must return it to the owner. Again, Dan borrows Ella’s camera to use on a vacation trip, takes all due care, but surrenders it to an armed robber. Dan should do something to make up for the loss (see S.t., 2–2, q. 62, a. 6).
Also, finders of lost property usually should return it to the owner or turn it in to some agency responsible for doing so, such as the police or a lost-and-found office.
Of course, people who innocently find themselves in possession of stolen property or who happen to find lost property have a much more limited responsibility of restitution than do those who wrongly take another’s property. The former need compensate the owner neither for consequential losses nor for their own use (even consumption) of the property during any time they honestly believed it was theirs to use. Moreover, when such innocent people return property, the owner should compensate them for their trouble and expense, and this payment is not morally optional, as is an unpromised reward given as a token of gratitude.
When Jane returns the bottle of perfume she stole from Sally, even before her roommate notices that it is missing, her act of restitution restores the objective situation to just what it had been before the theft.68 But usually when restitution is required, such a restoration is impossible, and even if possible, the duty of restitution may require something else. For the duty of restitution is to do what is just now, not undo what has been done.
a) Restitution often is due even though restoration is impossible. Wrongdoers who owe restitution sometimes rationalize that, since the wrong they did cannot be undone, they need only repent. For example, George, having injured Pete, might say he is sorry but cannot undo the beating or the injury, and so need make no restitution. However, since Pete is unjustly suffering harms—hospital bills, lost pay, pain, and so forth—due to the injury, George must do what he can to remedy the ongoing injustice.
In general, those who have done any injustice should ask themselves what they can do, not to make things as they were, but to make things as they should be now. Thus, when Tim, a married man, seduces Ann, to whom he pretends to be single, and she becomes pregnant, Tim does not make restitution by paying for an abortion, but by doing what he can to see to it that she and the child are cared for properly. And although Bob, a repentant thief, has no way of locating the stranger from whom he stole a camera, restitution remains possible: Bob should give what he owes as alms for his victim’s spiritual welfare and thus rectify the injustice, whether the victim is alive or dead (see S.t., 2–2, q. 62, a. 5, ad 3).69
b) Even when restoration is possible, justice may not require it. Frank steals a pair of tickets to a World Series game from the handbag of a coworker, Cindy. Thinking she has lost the tickets, Cindy plans a party for the evening of the game, inviting everyone in the office. Frank repents but realizes it is too late for Cindy to change her plans. Is his duty of restitution to return the tickets to Cindy’s handbag? It may instead be to compensate Cindy for the market value of the tickets, and for her time and trouble obtaining and searching for them. For if Frank returns the tickets, he does not remedy the harm he has done to Cindy; rather, he presents her with an additional problem and causes her further distress. Thus, compensation in money more likely will fulfill what justice now requires.
Moreover, sometimes justice does not require those who innocently obtain stolen property or find lost property to return it to its owner, as will be explained (see 10.E.5.g, 10.F.1.e).
It is impossible to articulate an adequate set of specific norms for making restitution. Various norms of morality, law, and custom can be helpful, but they always admit of exceptions, and sometimes fall short of requiring what really would be fair. Hence, to determine what restitution should be made, the Golden Rule must be directly applied. In applying it, many things should be taken into account, but wrongdoers who owe restitution should be ready to suffer the consequences of making it. Discussion with the wronged party or mediation often helps to reach a fair judgment. In making restitution, Christians should be willing to do more than justice requires, for very often only mercy can satisfy the wronged party and make reconciliation possible.
a) The norms for making restitution are helpful but inadequate. The norm requiring that one who wrongfully takes another’s property should return it seems clear and simple. But stolen property should not be returned when, in unusual circumstances, doing so would gravely harm rather than benefit the victim of injustice (see S.t., 2–2, q. 62, a. 5, ad 1). And, as the example of the stolen tickets makes clear, something other than the simple return of stolen property may be more adequate as restitution. Thus, one should not return stolen property without considering whether fairness requires something else. To make that judgment, the Golden Rule must be applied.
Moreover, every specific moral norm regarding restitution can be fulfilled only insofar as possible, and possible always refers not only to physical but to moral possibility. For example, if Herb cannot both relieve his parents’ extreme need and return money he has stolen from someone who is not in extreme need, he should do the former rather than the latter (see S.t., 2–2, q. 62, a. 5, ad 4). And in general, one cannot tell what is morally possible without comparing responsibilities and judging what is fair, which, once more, means applying the Golden Rule.
Laws often provide norms for restitution. The law of torts is especially concerned with this problem, but other parts of the law sometimes specify duties of restitution. If legal requirements are just, those who owe restitution not only should comply with them but should do so promptly rather than delay until they are compelled to comply (see S.t., 2–2, q. 62, a. 8). However, in any particular case, even just laws, and all the more so unjust ones, can require more or less than what is really just, and so their demands are subject to moral review.
Indeed, the restitution required by law often is inadequate, because laws are limited in many ways: they can deal only with major injustices, only the provable aspects of harm, only the harms which lawmakers recognize, and so on. Often, for instance, those who become prosperous after a bankruptcy have moral responsibilities, unenforceable at law, to repay certain creditors, such as those suffering serious, ongoing harm directly resulting from the bankruptcy. Like laws, customary norms and the rules of etiquette often provide helpful indications of what wrongdoers should do by way of restitution. By themselves, however, these indications are no more adequate than legal requirements. Therefore, the requirements of restitution set by law, custom, and etiquette always must be reviewed by a moral judgment as to what is fair, which, again, means following the Golden Rule.
b) In applying the Golden Rule, many things should be considered. Many factors can affect what is appropriate by way of restitution, and the following list is not exhaustive. However, generally these questions should be considered.
- What is the harm or loss which calls or might call for restitution? In answering this question, one should consider not only the immediate effects of any unjust act, but consequential damages. For example, if money is stolen and retained for some time, the loss suffered not only is the amount taken, but the interest it could have earned or the benefits which would have been gained by spending it. If an automobile is damaged, the loss is not only the cost of having it repaired but the time and trouble required to do so. Also, one should distinguish between harm to or loss of actual goods, on the one hand, and, on the other, deprivation of potential ones, since, other things being equal, the former is worse than the latter (see S.t., 2–2, q. 62, a. 4). Then too, past, present, and future harm or loss should be considered distinctly, since past harm may call for compensation, present harm effective remedy, and future harm preventive measures.
- What might be done to compensate for, remedy, or prevent that loss or harm? Since the unnecessary continuation of an injustice increases it, in considering this question, one should take into account the urgency for action to mitigate or prevent injustice, and should seek ways to rectify it quickly if that can be done. But one also should consider not only what can be done now but what might be done in the future, since those who cannot make adequate restitution now should commit themselves to fulfilling the responsibility if and when they can. Moreover, what is difficult and repugnant should not be ruled out as impossible; fairness can require wrongdoers to suffer much more in making restitution than their victims have suffered due to the injustice.
- However, since some possible ways of making restitution might be morally impossible, one must ask: Would doing this violate any absolute moral norm? If so, that alternative must of course be excluded. But nonabsolute norms also can affect the moral possibility of alternatives. So, one must ask: Would this way of making restitution conflict with some other responsibility? Would it be likely to have other bad side effects? If so, what would they be? How likely? Who would suffer them?
- Although restitution, unlike penance, rectifies actual or potential injustice, whether and how a moral agent owes restitution depends, among other things, on whether and how that agent was responsible for the injustice. So, in addition to questions about the injustice suffered and possible ways of rectifying it, one must ask: Is restitution owed because a wrong was done, and, if so, precisely how was the wrongdoer responsible for the harm or loss? As has been explained (in 3, above), diverse specific grounds require restitution. Cases in which the ground is a sin of injustice or some moral fault must be distinguished from those in which the duty of restitution is incurred blamelessly. Among the former, grounding in a mortal sin of injustice against the victim must be distinguished from grounds in lesser faults, among which, again, factors affecting the degree and sort of moral responsibility should be distinguished.
- Since the point of restitution is not to make things be precisely as they were, but to do what is just now, one cannot entirely ignore the significance of the burdens and benefits of possible forms of restitution to those making restitution and those receiving it. Therefore, depending on the ground requiring restitution, another question is more or less relevant: What are the comparative capacities of those involved to bear the burdens and forgo the benefits? The less morally responsible an agent owing restitution is for the actual or potential injustice to be rectified or prevented, the more relevant this question becomes.
- Often, two or more moral agents, whether by cooperating formally or not, contribute to some harm or share in possessing something which requires restitution, and so share the responsibility to make it. In such cases, it is important to ask: Did both or all incur the duty of restitution on the same specific ground or on different grounds? When some of those involved became liable by a mortal sin of injustice against the victim, their duty of restitution obviously takes priority over the duty of those whose responsibility is less. Still, those with a prior and greater responsibility to make restitution often are less ready to fulfill it and more able to evade it. So, one also must ask: To what extent have others rectified or prevented the injustice, and, if they have not done what they should, to what extent can they be induced or compelled to do so?
- Finally, even after making a reasonable effort to look into some of the preceding questions, one very often is not sure of the answers. Residual doubts should be taken into account in judging what fairness requires. Hence: If any of the relevant facts is in doubt, how would one or the other resolution of the doubt affect a fair judgment as to what should be done?
c) Wrongdoers should not consider difficult restitution impossible. Having harmed others and through malice, selfishness, or weakness deprived them of what is due, wrongdoers often are quick to exclude appropriate restitution as impossible, when in reality it is both physically and morally possible, though difficult. Wrongdoers certainly should not consider too great, and so morally impossible, any burden required for their own repentance and reformation. Nor, if the party to whom they owe restitution is reasonable, should they consider too hard any restitution required to regain trust and achieve reconciliation.
Sometimes criminals (and even their moral counselors) think restitution is unnecessary because it cannot be made without accepting punishment for the crime. For example, a repentant rapist, Charlie, learns that he has harmed his victim, among other ways, by leading her husband to doubt her fidelity. Charlie must do what is necessary to put that doubt to rest, even if that will lead to his being convicted of the crime. He should not excuse himself by saying the burden of accepting his punishment is too great. Since he deserves the punishment, the burden of accepting it cannot be unfair, and so he must not exclude the necessary act of restitution as excessively burdensome.
d) Discussion and mediation often clarify what is due as restitution. Very often, those who owe restitution can easily apply the Golden Rule by communicating with the party to whom it is due, expressing appropriate repentance or concern, affirming their determination to do the right thing, and asking: What do you think that would be? When such a discussion leads to a mutually acceptable solution—assuming both parties are competent judges of their own interests and free from undue pressures—that solution is precisely what justice now requires. Resolving the problem by communication and cooperation also contributes greatly to resti~tution’s essential purpose: reconciliation and the building up of community. Justice and mutual benevolence beget peace.
When direct communication is impossible or fails, mediation often helps. Someone who is intelligent, fair-minded, and trusted by both parties can gather the relevant information and apply the Golden Rule, communicating with the parties not only to enlist their acceptance of the solution but to take advantage of their help in reaching it. In this way the mediator helps the parties to develop a good relationship. Sometimes, difficult and complex cases can be mediated satisfactorily by the parties’ lawyers, provided they are skillful negotiators and not unduly eager for litigation.
Considering how much good is realized when an issue regarding restitution is resolved by discussion and mediation, it is apparent why it generally is inappropriate for Christians to use an adversarial procedure, such as a lawsuit, especially when that involves submitting their relationships with one another to the judgment of nonbelievers (see Mt 5.25).
e) In making restitution, Christians should do more than justice requires. There is another, related reason why taking the initiative in using legal processes to settle issues about restitution is unsatisfactory from a Christian point of view. Since law can require only what is necessary to vindicate rights, it often falls short of the requirement of Christian mercy. God owes sinful humankind nothing, yet in Jesus he makes satisfaction for all humankind in order to reestablish communion. Christians must imitate and actively share in God’s mercy, and so extend it, in order to extend that communion, to enlarge and build up the kingdom. Whenever possible, they should do enough to satisfy those to whom they owe restitution, even when that requires going the extra mile, so that restitution’s essential end of mutual good will and peace will be realized.
Not only those who owe restitution but those who deserve to receive it should act fairly and mercifully, so that the rectification of the injustice suffered by the latter will contribute to genuine community.
a) They should not take advantage of those who owe them restitution. Laws and customs which are in general just sometimes require more than is fair by way of restitution. In such cases, those owed restitution should decline the excess, since accepting it would be unjust.
Occasionally, too, the party owing restitution offers more than is fair. If made for some reason—for example, to demonstrate good will—such an offer can be accepted as a gift. But if it is made by mistake or due to emotional pressure, fairness requires declining the excess.
If the law provides well for those who deserve restitution in cases of a certain kind, injured parties whose cases fall into that category very often see that as an opportunity to obtain a large award, whether or not that is fair. This is especially so if the restitution would be paid by an insurance company. Plainly, however, injured parties should make a careful judgment as to what is fair and seek no more; and exaggerating the injury or otherwise lying to obtain more than is fair clearly is an additional, grave injustice.
May an injured party seek punitive damages when the law permits? Certainly yes, if, as sometimes happens, fair restitution can be obtained only by seeking such damages. Perhaps yes in other cases. On the one hand, when a law provides for punitive damages, lawmakers presumably had in view some just end other than restitution, so that a plaintiff seeking punitive damages presumably serves a public interest and receives just compensation for doing so. On the other hand, injured parties must consider their responsibilities in both fairness and mercy before seeking punitive damages beyond what would suffice for fair restitution.
Rejecting an offer of restitution which one realizes is fair and using legal processes to seek more is an abuse of these processes and a further grave injustice. Indeed, suing is wrong not only when the plaintiff seeks excessive restitution, but when other factors render the lawsuit unjust: a fair settlement could be reached out of court, the burdens of the legal process on the defendant will be unfairly great, the plaintiff seeks restitution only as revenge, and so forth.
b) Those owed restitution also should be merciful. Like those who owe restitution, those entitled to it should seek above all to achieve mutual good will and peace. Thus, unless other responsibilities require them to insist on everything to which they are entitled, they should be ready to mitigate the burden on the party making restitution, especially when that might facilitate or confirm repentance, bear special witness to the gospel, or offer some other significant benefit in terms of Christian values.70
62. For this distinction, sometimes insufficiently noted by the classical moralists, see St. Thomas, In Sent., 4, d. 15, q. 1, a. 5, qu’la 1.
63. See Aertnys, Damen, and Visser, Theologia moralis, 2:274–76; see Henri J. Renard, S.J., “An Approach to the Problem of Restitution,” Modern Schoolman 36 (1958–59): 77–89, for an enlightening contrast between such an approach and that of St. Thomas.
64. However, some were clearer on this matter: see Aertnys, Damen, and Visser, Theologia moralis, 2:263, n. 3.
65. St. Thomas points out that distributive and commutative justice are in play in the same act, using the example of a distribution which gives an individual less than his or her fair share (see S.t., 2–2, q. 62, a. 1, ad 3). And since commutative justice by definition exists in a two-sided relationship, it cannot be present in the government’s relation to a citizen without being present in that citizen’s relationship with the government.
66. See Aertnys, Damen, and Visser, Theologia moralis, 2:263; also see 2:311–12, where two opinions are presented, one requiring restitution for tax fraud, the other only compliance with the law’s requirements in the matter.
67. A similar explanation of the requirement to make restitution: St. Thomas, In Sent., 4, d. 15, q. 1, a. 5, qu’la 2.
68. Must Jane tell Sally what she did? In general, no, and doing so might only cause Sally unnecessary distress. Still, Jane could have an obligation of some sort to tell Sally. For example, Jane might judge that telling Sally is necessary to put an end to the temptation to steal her things.
69. Some classical moralists mistakenly generalize from this kind of case, in which giving alms is appropriate restitution, to suggest almsgiving as an alternative to restitution, without reference to the victim of injustice. This mistaken suggestion obviously results from confusion between making restitution and doing penance for sin. Almsgiving often is a suitable penance but is appropriate as restitution only when it is the best way of remedying the injustice suffered by the victim.
70. For an interesting application of the Christian principle of mercy to both those owing and those deserving restitution in a specific type of case: James Druckenbrod, “Medical Malpractice: A Christian Ethical Perspective,” Linacre Quarterly 58 (Nov. 1991): 13–33.