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Lectures on Jurisprudence.

ANALYSIS OF PERVADING NOTIONS.

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LECTURE XII.³⁰

ANALYSIS OF THE TERM RIGHT.

I have endeavoured in the preceding Lectures to accomplish the following objects: 1st, To determine the essentials of a Law (in the largest signification which can be given to the term properly): 2ndly, To distinguish the laws proper which are set by God to Man, and the laws proper and improper which are sanctioned or oblige morally, from the laws proper which are sanctioned or oblige legally, or are established directly or indirectly by sovereign authority.

Having attempted to determine generally the nature of Law, and to mark the boundaries of the field which is occupied by the science of Jurisprudence, I shall now endeavour to unfold (as briefly as I can) the essential properties of Rights: meaning by Rights, legal rights, or rights which are creatures of Law, strictly or simply so called.

Natural and Moral Rights, or Rights which are merely sanctioned religiously or morally.

There are, indeed, Rights which arise from other sources: namely, from the laws of God or Nature, and from laws which are sanctioned morally. But the peculiarities of these may be easily collected, by considering the peculiarities of the sources from which they flow. Accordingly, I shall not pause to examine them in a direct or formal manner, although I shall advert to them occasionally in the course of the ensuing Lectures. At present I dismiss them with the following remarks. 1st, Like the Obligations to which they correspond, natural and moral Rights (or rights which are merely sanctioned 344religiously or morally) are imperfect. In other words, they are not armed with the legal sanction, or cannot be enforced judicially. 2ndly, The Rights (if such they can be called) which are conferred by positive morality, partake of the nature of the source from which they emanate.—So far as positive morality consists of laws improper, the rights which are said to arise from it are rights by way of analogy.

For example, rights which are derived from the Law of Nations are related to rights which are derived from positive Law, by a remote or faint resemblance. They are neither armed with the legal sanction, nor are they creatures of Law established by determinate superiors.

Strictly speaking, there are no rights but those which are the creatures of law; and I speak of any other kind of rights only in order that I may conform to the received language, which certainly does allow us to speak of moral rights not sanctioned by law; thus, for example, we speak of rights created by treaty.

Ideas, the analysis of which is inevitably involved in that of right.

In attempting to explain the nature of a legal Right, I shall inevitably advert to the import of the following terms:

1st, Law, Duty, and Sanction. For, though every law does not create a right, every right is the creature of Law. And, though every obligation and sanction does not imply a right, every right implies an obligation and a sanction.

2ndly, Person, Thing, Act and Forbearance. For rights are exercised by persons; or if not exercised by persons, reside in persons. And persons, things, acts and forbearances, are the subjects or objects of rights and obligations, or (changing the shape of the expression) are the matter about which they are conversant.

3rdly, Injury;—Wrong;—or Breach of Obligation or Duty by commission or omission. For as rights suppose or imply obligations and sanctions, so do obligations or sanctions suppose injuries or wrongs. In other words, their ends or purposes are the prevention of injuries or wrongs, and the redress of the damage or mischief which is commonly the consequence or effect.

4thly, Intention and Negligence (including under the latter of these terms what may be called rashness or temerity). For every wrong (whether it be positive or negative, or consist of a commission or omission) supposes intention or negligence on the part of the wrongdoer.

5thly, Will and Motive. For the import of the expressions 345‘will’ and ‘motive’ is implied in the import of the expressions ‘intention’ and ‘negligence.’ And, further obligation and sanction operate upon the will of the obliged, and are thereby distinguished from the compulsion or restraint, which (for want of a better name) may be styled merely physical. Nothing is more frequent in jurisprudence than the confusion of motive with intention; and of this confusion the law of England affords a flagrant instance, when it lays down that murder must be committed of malice aforethought. By this is merely meant that it must be committed intentionally. Malice is properly the name of a motive: namely, that of malevolence or ill-will; but it is not by any means necessary in the law of England that the act should have been committed from ill-will: on the contrary, the great majority of murders are committed from motives altogether different—such as that of obtaining the property of the murdered person—: it is only necessary that the murder should be intentional. There is one case of peculiar absurdity, that of murders said to be committed out of malice or ill-will to all mankind. For example, if a workman throws rubbish from the top of a building without giving warning to the passers-by, and if he consequently kills one of them, it would be too obvious an absurdity to pretend that he acted from ill-will towards the particular person, whom in all probability he has never before seen or heard of, but he is said to have acted from malice or ill-will towards all mankind; the real ground for his punishment being that he has acted with gross and mischievous negligence; that he has shown a want of regard for the lives and safety of others, which ought to subject him to legal punishment. He has committed the offence not from a peculiar motive but from the want of a certain motive, and his state of mind requires to be distinguished from intention, as intention and negligence both require to be distinguished from motives.

Finally, Political or Civil Liberty:—a term which, not unfrequently, is synonymous with right; but which often denotes simply exemption from obligation, conferred in a peculiar manner: namely by the indirect or circuitous process which is styled ‘permission.’ For it will be shown in the sequel that when the law only permits, it as clearly confers a right as when it commands.

Having attempted to explain the import of the term ‘Right,’ and having touched upon the import of the terms which I have 346now enumerated, I shall advert to the ambiguities by which some of these expressions are obscured. I shall point particularly at the varying significations of ‘Law,’ ‘Right,’ and ‘Obligation.’ In attempting to unfold the notions which are signified by the term ‘Right,’ and to indicate the import of the terms with which it is inseparably connected, I shall scarcely find it possible to avoid repetition. For each of these expressions is so implicated with the rest, that the explication of any of them involves allusions to the others. For the same reason, the parts of the analysis will probably be obscure: though I hope that the whole may express the intended meaning, or, at least, may suggest it to the hearer.

Having briefly pointed at the purpose of the following analysis, and apologised for its repetitions and obscurities, I now proceed to the subject of it.

Obligations or Duties are positive or negative.

Every Law (properly so called) is an express or tacit, a direct or circuitous Command.

By every command, an Obligation is imposed upon the party to whom it is addressed or intimated. Or (changing the expression) it obliges the party by virtue of the corresponding sanction.

Every Obligation or Duty (terms, which, for the present, I consider as synonymous) is positive or negative. In other words, the party upon whom it is incumbent is commanded to do or perform, or is commanded to forbear or abstain.

In order to the fulfilment of a positive obligation, the act or acts which are enjoined by the Command must be done or performed by, or on the part of, the obliged. In order to the fulfilment of a negative obligation, he must forbear from the act or acts which the Command prohibits or forbids. In the one case, the active intervention of the obliged is necessary. In the other case, the active intervention of the obliged is not only needless but is inconsistent with the purpose of the obligation.

An obligation to deliver goods agreeably to a contract, to pay damages in satisfaction of a wrong, or to yield the possession of land in pursuance of a judicial order, is a positive obligation. An obligation to abstain from killing, from taking the goods of another without his consent, or from entering his land without his licence, is a negative obligation.

Forbearances cannot be styled with propriety negative services.

I observe that forbearances have been styled by Mr. Bentham³¹ negative services. And, if we like, we may call them 347by that, or by any other name. But whether established language authorise the expressions seems to be doubtful. If you abstain from knocking me on the head, or from taking my purse, or from blackening my reputation, it can scarcely be said with propriety that ‘you render me a service.’ In ordinary language ‘you forbear from doing me a mischief.’ It would seem that Mr. Bentham has transferred to the object of an obligation, an expression which applies correctly to the obligation itself. A forbearance, in pursuance of an obligation, is hardly a ‘negative service,’ though the obligation of which it is the object is properly a ‘negative obligation.’

Obligations are relative or absolute.

Obligations may also be distinguished into relative and absolute.

A relative obligation is incumbent upon one party, and correlates with a right residing in another party. Changing the expression, A relative obligation corresponds or answers to a right, or implies, and is implied by, a Right. Where an obligation is absolute, there is no right with which it correlates. There is no right to which it corresponds or answers. It neither implies, nor is implied by a right. Here, as elsewhere, the term ‘absolute’ is a negative or privative expression. Here, as elsewhere, it denotes the absence of an object to which the speaker or writer expressly or tacitly refers.

But, in order to the complete explanation of a negative or privative expression, we must first explain the object of which it denotes the absence. Consequently, I shall begin with rights, and with the obligations which are implied by rights; and I shall then proceed to the obligations which have no corresponding rights, or which (in a word) are absolute.

Rights imply persons, things, acts, and forbearances.

Since rights reside in persons, and since persons, things, acts, and forbearances are the subjects or objects of rights, I must advert to the respective significations of these various related expressions, before I address myself to rights and to the obligations with which they correlate.

Persons natural or fictitious.

Persons are divisible into two classes—physical or natural persons, and legal or fictitious persons.

In this instance, ‘physical’ or ‘natural’ bears the signification which is usually attached to it in the language of Jurisprudence, and (I believe) in the language of other sciences. Its import is negative. It denotes a person not fictitious or legal, and is used to distinguish persons, properly so called, from persons which are such by a figment, and for the sake of brevity in discourse. Consequently, when we speak of ‘persons’ simply, 348and without opposing them to legal or fictitious persons, we mean persons properly so called, or persons physical or natural.

Meaning of ‘physical person, or ‘person’ simply.

By a physical or natural person, or, by a person simply, I mean homo, or a man, in the largest signification of the term: that is to say, as including every being which can be deemed human. This is the meaning which is given to the term person, in familiar discourse. And this, I believe, is the meaning which is given to it by the Roman Lawyers (from whose writings it has been borrowed by modern jurists) when they denote by it a physical or natural person, and not a legal or fictitious one.

Many of the modern Civilians have narrowed the import of the term person as meaning a physical or natural person.

They define a person thus: ‘homo, cum statu suo consideratus:’ a ‘human being, invested with a condition or status.’ And, in this definition, they use the term status in a restricted sense: As including only those conditions which comprise rights; and as excluding conditions which are purely onerous or burthensome, or which consist of duties merely. According to this definition, human beings who have no rights are not persons, but things; being classed with other things which have no rights residing in themselves, but are merely the subjects of rights residing in others. Such, in the Roman Law, down to the age of the Antonines, was the position of the slave. In respect of his master, and also in respect of strangers, he was subject to Obligations or Duties. But he had no Rights as against his master, or even as against strangers. His master might deal with him, as if he had been a thing of which his master was the owner:—might use, abuse, and even destroy him, without stint or measure, and with absolute impunity. In case he were killed or maltreated by a third party, the act was not a wrong against the slave himself, but was merely an offence against the dominion or property which resided in the master. In a word, the slave (like a thing) was susceptible of damage, but was not susceptible of injury. ‘Servo ipsi nulla injuria intelligitur fieri: sed domino per eum fieri videtur.’³²

Agreeably to this definition, as understood by the modern civilians above mentioned, a person is a human being invested with rights. Or a person is a human being capable of rights.

But this, I am convinced, was not the notion attached to the term ‘person’ by the Roman Lawyers themselves, when they denoted by it a physical or natural person.

For, first, in all their divisions of persons, or in all their 349distributions of persons into various classes, slaves, who had no rights, are considered as persons, and ‘persona’ and ‘homo’ are synonymous or equivalent expressions. ‘Summa divisio de jure personarum, hæc est; quod omnes homines aut liberi sunt aut servi.’ Again: ‘Sequitur de jure personarum alia divisio. Nam quædam personæ sui juris sunt; quædam alieno juri subjectæ. Sed rursus earum personarum quæ alieno juri subjectæ sunt, aliæ in potestate, aliæ in manu, aliæ in mancipio sunt. Videamus nunc de iis quæ alieno juri subjectæ sunt: Ac prius dispiciamus de iis qui in alienâ potestate sunt. In potestate itaque sunt servi dominorum.’³³

In these passages from the Institutes of Gaius (and in various corresponding passages in the Institutes and Digest of Justinian) slaves (who had no rights) are treated as a class of persons, and ‘homo’ and ‘persona’ are applied indifferently, or as if they were equivalent expressions. And, in penning these passages, the attention of the authors must have been particularly directed to the just legal import of the term ‘person.’ For the purpose with which they were occupied was the division of persons, or the distribution of persons into genera and species.

Secondly, Although the slave had no rights, there are numerous places in the Institutes of Gaius, in the Institutes of Justinian, and also in his Digest or Pandects, in which a status or condition is ascribed to the slave, or in which the slave is spoken of as bearing a status or condition.

350 Even, therefore, if we admit that the definition in question will apply to the term ‘person,’ and that a person is a human being bearing a condition or status, it will not follow that the term ‘person’ is exclusively applicable to such human beings as are invested with rights.

If we admit the definition, while we look at the true import of the term status, the meaning of ‘person’ is this: namely, a human being considered as invested with rights, or considered as subject to duties.³⁴

Taking the term in that meaning, it would apply to every human creature, if a member of a political society, and not sovereign therein. It could not apply to a human being not a member of any political society, for a human being in that situation has no legal rights, and is free from legal obligations. Nor, taken in that meaning, can it apply to a monarch, for as I have before observed,³⁵ we cannot say with correctness, that sovereigns have legal rights, nor that they are subject to legal obligations. Obligations are imposed, and rights conferred by laws. He, therefore, who has rights, or who lies under obligations, occupies a position wherein sovereigns are not. He is in a state of subjection, or in a habit of obedience, to some determinate superior from whom he receives the law.

But, according to the meaning which was attached to it by the Roman Lawyers, neither of the significations in question belongs to the term ‘person.’ They neither confined it to human beings, considered as invested with rights; nor did they even restrict it to human beings, considered as subject to obligations. The meaning which they attached to the term, is the familiar or vulgar meaning. With them ‘persona’ denoted ‘homo,’ or any being which can be styled human.

The modern limitation of the term ‘person’ to ‘human beings considered as invested with rights,’ appears to have arisen thus: 1st, A person was defined by many of the modem Civilians, ‘a human being bearing a status or condition.’ 2ndly, The authors of the definition used the term ‘status’ in a peculiar and narrow sense. They assumed that every status 351comprises rights, or, at least, comprises capacities to acquire or take rights. They assumed that a status or condition could not be ascribed to any one who was excluded from all rights, and was simply subject to duties. Now there is no classical authority for defining a person, ‘a human being bearing a status or condition.’ And further, I could cite numerous passages from the Classical Jurists, in which a status or condition is ascribed to the slave: That is to say, to a human being who is excluded from rights; and whose condition or status is therefore purely onerous, or consists of duties merely. The truth appears to be that the authors of the definition considered the term ‘status’ as equivalent to the term ‘caput:’ a word denoting conditions of a particular class: conditions which do comprise rights, and comprise rights so numerous and important, that the conditions or status of which those rights are constituent parts, are marked and distinguished by a name importing pre-eminence.

For the purpose of ascertaining the meaning which should be assigned to the term status, I have searched the meanings which were annexed to it by the Roman Lawyers, through the Institutes of Gaius and Justinian, and through the more voluminous Digest of the latter. And the result at which I have arrived is this: that status and caput are not synonymous expressions, but that the term caput signifies certain conditions which are capital or principal: which cannot be acquired and cannot be lost, without a mighty and conspicuous change in the legal position of the party. Such, for instance, are the status libertatis and the status civitatis: that is to say, the condition of the freeman, as opposed to the condition of the slave; and the condition of the citizen or member of the political society, as opposed to the condition of the foreigner.

Whatever may be the meanings of these terms as they are used by the Roman Lawyers, it is certain that they are not synonymous. For a condition or status is repeatedly ascribed to the slave, and yet it is affirmed of the slave ‘that he has nullum caput.’

It is much to be wished, that the difference between them could be ascertained. For of all the perplexing questions which the science of Jurisprudence presents, the notion of status or condition is incomparably the most difficult And much of the obscurity in which it is involved, arises from the manner in which it has been treated by the modern Commentators upon the Roman Law: Particularly from their habit of restricting 352the import of ‘status,’ and of using it as if it were equivalent to the narrower expression ‘caput.’

I think, then, that I am justified by authority, as well as by the convenience which results from it, in imputing to the term person (as denoting a physical or natural person) the familiar or vulgar meaning; or in considering a physical or natural person as exactly equivalent to ‘man’ (in the largest signification of the term).

If persona (as meaning man) be equivalent to homo, and be not exclusively applicable to ‘men invested with rights,’ it follows that the slave is a person, though he be excluded from rights. If, indeed, we consider him from a certain aspect, we may, in a certain sense, style him a thing. But almost every person may be considered from a similar aspect, and may also be styled a thing, with equal propriety. As I shall show more fully when I get further on, persons must be considered from three points of view: As invested with rights; as lying under obligations or duties; and as being the subjects or objects of rights and obligations.

‘Person’ frequently synonymous with ‘status ‘or condition.’

I have hitherto considered the extension of the term ‘person’ as denoting a human being. And in regard to the extension of the term, as denoting a human being, I believe that Classical Jurists, when they used it with that meaning, used it with the large signification which it bears in familiar discourse:—as being synonymous with ‘homo,’ or as applying to every being which can be styled human.

But, instead of denoting men (or human beings), it sometimes denotes the conditions or status with which men are invested. And taking the term in this signification, every human being who has rights and duties bears a number of persons. ‘Unus homo sustinet plures personas.’ For example, every human being who has rights and duties, is citizen or foreigner: that is to say, he is either a member of a given independent society, or he is not a member of that given independent society. He is also a son. Probably, he is husband and father. It may happen, moreover, that he is guardian or tutor. His profession or calling may give him distinctive rights, or may subject him to distinctive duties. And with the various conditions or status of citizen, son, husband, father, guardian, advocate, attorney, or trader, he may combine the condition of judge, or of member of the supreme legislature, and so on to infinity.

The term ‘person,’ as denoting a condition or status, is there353fore equivalent to character. It signified originally, a mask worn by a player, and distinguishing the character which he represented from the other characters in the piece. From the mask which expressed the character, it was extended to the character itself. From characters represented by players, or from dramatic characters, it was further extended by a metaphor to conditions or status. For men, as subjects of law, are distinguished by their respective conditions; just as players, performing a play, are distinguished by the several persons which they respectively enact or sustain.

By the Greek commentators on the Roman Law, or by those who have translated the expositions of the Roman Law into Greek (as Theophilus), persona is translated by the word πρόσωπον, which signifies a visage or face, and is obviously meant to denote character or status, and not in the other import.

The term ‘person’ has, therefore, two meanings, which must be carefully distinguished. It denotes a man or human being; or it signifies some condition borne by a man. A person (as meaning a man) is one or individual: But a single or individual person (meaning a man) may sustain a number of persons (meaning conditions or status). The erroneous definition of a person to which I have already adverted, probably arose in part from a confusion of these significations. Every status or condition consists of rights or duties; or it consists of both. And if we impute to a person (as meaning a man) this essential of a person (as meaning a condition), it will follow that a person (as meaning a man) must be defined thus: A man invested with rights, or subject to obligations.

The further limitation of the term ‘person’ to ‘a man invested with rights,’ probably arose (as I intimated before) from an erroneous limitation of the term ‘status:’ from the restriction of the term to certain capital conditions, which consist of rights as well as of duties; and wherein the rights are the more conspicuous and distinctive constituents or components. A Roman Citizen, for instance, was of course distinguished from a foreigner, chiefly by the numerous rights which he enjoyed: so was a freeman from a slave: insomuch that he who was reduced from the more advantageous of these situations to the other was said to undergo capitis deminutio: so predominating was the idea of the rights which he lost over that of the duties from which he became freed, although by the same event by which he lost the rights he became freed from the duties also. This last mentioned 354error, in short, arose from the confusion of status (the larger or generic expression) with caput (the narrower or specific).

Fictitious or legal persons.

Fictitious or legal persons are of three kinds: 1st, Some are collections or aggregates of physical persons: 2ndly, others are things in the proper signification of the term: 3rdly, others are collections or aggregates of rights and duties. The collegia of the Roman Law, and the corporations aggregate of the English, are instances of the first: the prædium dominans and serviens of the Roman Law, is an instance of the second: the hæreditas jacens of the Roman Law, is an instance of the third.

It is impossible that I should enter here upon the consideration of legal persons. For their natures are various; the ideas which they stand for are extremely complex; and they, therefore, belong to the detail, rather than to the generalia of the science. At present I will merely remark that they are persons by a figment, and for the sake of brevity in discourse. All rights reside in, and all duties are incumbent upon, physical or natural persons. But by ascribing them to feigned persons, and not to the physical persons whom they in truth concern, we are frequently able to abridge our descriptions of them.

To take the easiest instance; this is the case with the prædium dominans and serviens of the Roman Law. A servitus or easement over one prædium resides in every person who occupies another prædium: meaning by a prædium a given piece of land, or a given building with the land on which it is erected. The servitude or easement in question (as, for instance, a right of way) is ascribed, by a fiction, to one of these prædia; and, by a similar fiction, an obligation or duty to bear the exercise of the servitude is imputed to the other. The first is styled dominans; the latter serviens. Or (as we should say in English Law-language) the jus servitutis or easement is appurtenant to the lands or messuages. In truth, the right resides in every physical person who successively owns or occupies the prædium styled dominans. And the right avails against every physical person who successively owns or occupies the prædium styled serviens. But by imputing these rights and obligations to the prædia themselves, and by talking of them as if they were persons, we express the rights and duties of the persons who are really concerned, with greater conciseness.

To take another instance. Hæreditas jacens was a term employed in the Roman Law to denote the whole of the rights and obligations which, at any instant of time during the period 355which intervenes between the death of the testator or intestate, and the heir’s acceptance of the inheritance, would have devolved upon an heir at that instant entering upon the inheritance. This mass of rights and obligations was by a fiction styled a person, although clearly not a person in the popular sense of the word, nor even consisting of any determinate thing, but being a mere collection of rights and obligations. It was so termed by way of expressing that any benefit accruing to the inheritance during the above period, would enure to the benefit of the heir.

Fragments.

Law is imperative or permissive.³⁶

Law, considered as a rule of conduct, prescribed by the Legislator or Judge, is necessarily imperative, since it imposes an obligation to act or to refrain from acting in a given manner.³⁷

As conferring a right, it is permissive. Considered as an expression of the will of the Legislator or Judge, it is imperative or permissive. For it may consist in the removal of restraint.

Penal Laws are seldom directly imperative.

Sanction is not of the essence of permissible law. For, by such a law, an obligation, instead of being imposed, may be simply removed. (Sed quære.)

It has hitherto been assumed that every law imposes an Obligation. Apparent exception in the case of Permissive Laws. The exception only apparent. Taking off an Obligation, it confers a Right, and so imposes an Obligation corresponding to that right.

With reference to such parts of conduct as the positive law of the community does not touch, the members of a political society are in a state of nature. (Sed quære: For they are protected in that liberty by the State. Such liberty would seem to consist of rights conferred in the way of permission.)

Law is absolute or conditional;—is to take effect at all events, or only in default of dispositions by the interested parties.

Liberty. 356

Freedom, Liberty, are negative names, denoting the absence of Restraint.

Civil, Political, or Legal Liberty, is the absence of Legal Restraint, whether such restraint has never been imposed, or having been imposed, has been withdrawn.

It is general or particular: i.e. it extends to all; or it is granted to one or some, by an exemption or privilegium (see post, ‘Privilege’).

Liberty and Right are synonymous; since the liberty of acting according to one’s will would be altogether illusory if it were not protected from obstruction. There is however this difference between the terms. In Liberty, the prominent or leading idea is, the absence of legal restraint: whilst the security or protection for the enjoyment of that liberty is the secondary idea. Right, on the other hand, denotes the protection and connotes the absence of Restraint.³⁸

If the protection afforded by the law be considered as afforded against private persons, the word Right is commonly employed. If against the Government or rather against some member of the Government, Liberty is more frequently used; e.g. the Liberties of Englishmen.³⁹ Liberty and Right are not however always coextensive, since the security for the enjoyment of the former may in part be left to the moral and religious sanctions.

(Sed quære.) Whether Liberty can ever mean anything but the right to dispose of one’s person at pleasure? Liberty or Freedom to deal with an external subject seems, however, to be equivalent to ‘Right to deal with it.’

On the whole, Right and Liberty seem to be synonymous;—either of them meaning, 1st, permission on the part of the Sovereign to dispose of one’s person or of any external subject (subject to restrictions, of course) ; 2ndly, security against others for the exercise of such right and liberty.

Wherever there is protection afforded, Right is the proper word. As against the sovereign, there can be no right.

Physical freedom is the absence of external obstacles; i.e. the absence of causes which operate independently of the will. Moral freedom is the absence of motives of the painful sort.