LECTURE XVI.52
52 The notes of the oral lectures corresponding to the printed Lectures XVI to XXIII inclusive, are unfortunately missing. These lectures are therefore reprinted without altemtion from the former edition.—R. C.
RIGHTS CONSIDERED GENERALLY.
In the preceding Lectures, I have entered upon the analysis or explanation of the term ‘Right.’
Now (as I shall endeavour to demonstrate in this evening’s discourse) all that can be affirmed of Rights considered universally, amounts to a brief and barren generality, and may be compressed into a single proposition, or into a few short propositions.
But, before I could shew the little which can be affirmed of rights in general—or (rather) before I could shew how little can be affirmed of rights in general, it was necessary that I should advert to persons, considered as invested with rights; to things and persons, considered as the subjects of rights; to acts and forbearances, considered as the objects of rights; and to a leading or capital distinction which obtains between rights themselves.
Accordingly, I called your attention to the following objects:
1st, To persons as invested with rights, and as lying under duties or obligations. 2ndly, To things as subjects of rights, and of the duties corresponding to rights. 3rdly, To persons as placed in a position analogous to the position of things: that is to say, not as invested with rights, or as lying under duties or obligations, but as subjects of rights residing in other persons, and availing against strangers or third persons. 4thly, To acts and forbearances as objects of rights, and of duties or obligations correlating with rights. 5thly, and lastly, To the distinction between jus in rem and jus in personam; or between rights which avail against persons universally or generally, and rights which avail against persons certain or determinate.
Purpose and order of the present Lecture.
In the present Lecture, I shall endeavour to explain the nature or essence which is common to all rights. Or (changing the expression) I shall endeavour to indicate the point at which they meet or coincide; or to shew the properties wherein they resemble or agree; or to state that which may be affirmed of rights universally, or without respect to the generic and specific differences by which their kinds and sorts are separated and distinguished.
394 In trying to accomplish this purpose I shall proceed in the following order:
1st, I shall endeavour to state, in general expressions, the nature, essence, or properties, common to all rights. 2ndly, I shall advert briefly to certain classes of rights; and I shall endeavour to shew, that they agree in nothing, excepting those common properties. 3rdly, I shall examine certain definitions of the term ‘right;’ and I shall endeavour to elucidate the common nature of rights, by shewing the vices or defects of those definitions.
Common nature of rights.
Every right is a right in rem, or a right in personam.
The essentials of a right in rem are these:
It resides in a determinate person, or in determinate persons, and avails against other persons universally or generally. Further, the duty with which it correlates, or to which it corresponds, is negative: that is to say, a duty to forbear or abstain. Consequently, all rights in rem reside in determinate persons, and are rights to forbearances on the part of persons generally.
The essentials of a right in personam are these:
It resides in a determinate person, or in determinate persons, and avails against a person or persons certain or determinate. Further, the obligation with which it correlates, or to which it corresponds, is negative or positive: that is to say, an obligation to forbear or abstain, or an obligation to do or perform. Consequently, all rights in personam reside in determinate persons, and are rights to forbearances or acts on the part of determinate persons.
It follows from this analysis, first, That all rights reside in determinate persons. Secondly, That all rights correspond to duties or obligations incumbent upon other persons: that is to say, upon persons distinct from those in whom the rights reside. Thirdly, That all rights are rights to forbearances or acts on the part of the persons who are bound.
These (I believe) are the only properties wherein all rights resemble or agree.
Consequently, right considered in abstract (or apart from the kinds and sorts into which rights are divisible) may be conceived and described generally in the following manner.
Every legal duty arises from a Command, signified, expressly or tacitly, by the Sovereign of a given Society.
Every legal duty binds the party obliged, by virtue of a 395legal sanction. In other words, in case the party obliged violate the duty imposed upon him, he will be obnoxious or liable to evil or inconvenience, to be inflicted by sovereign authority.
[Now the person who is subject to a duty, or upon whom a duty is incumbent, is bound to do, or to forbear from, some given act or acts. And further, he is bound to do, or to forbear from, the given act or acts absolutely or relatively; That is to say, without respect to a determinate person or persons, or towards a determinate person or determinate persons.]
The objects of duties are Acts and Forbearances. Or (changing the expression) every party upon whom a duty is incumbent, is bound to do or to forbear. Or (changing the expression again) the party violates the duty which is incumbent upon him, by not doing some act which he is commanded to do, or by doing some act from which he is commanded to abstain
Duty is the basis of Right. That is to say, parties who have rights, or parties who are invested with rights, have rights to acts or forbearances enjoined by the sovereign upon other parties.
Or (in other words) parties invested with rights are invested with rights, because other parties are bound by the command of the sovereign, to do or perform acts, or to forbear or abstain from acts.
In short, the term right’ and the term ‘relative duty’ signify the same notion considered from different aspects. Every right supposes distinct parties: A party commanded by the sovereign to do or to forbear, and a party towards whom he is commanded to do or to forbear. The party to whom the sovereign expresses or intimates the command, is said to lie under a duty: that is to say a relative duty. The party towards whom he is commanded to do or to forbear, is said to have a right to the acts or forbearances in question.
Or the meaning which I am labouring to convey may be put thus.
Wherever a right is conferred, a relative duty is also imposed: the right being conferred upon a certain or determinate party, other than the party obliged. Or (changing the expression) a party is commanded by the sovereign to do or to forbear from acts, and is commanded to do or forbear from those given acts towards, or with regard to, a party determinate and distinct from himself.
For (as I shall shew hereafter) duties towards oneself and duties towards persons indefinitely, can scarcely be said with 396propriety to correlate with rights. As against others, I have a right to my life. For others are bound or obliged to forbear from acts which would destroy or endanger my life. But it can scarcely be said, with propriety, ‘that I have a right to my own life as against myself:’ Although I am legally bound to abstain from suicide, by virtue of certain sanctions whose nature I shall explain hereafter. And the same may be affirmed of duties towards persons indefinitely: that is to say, towards the community at large, or towards mankind generally.
A law which prohibits the importation of certain foreign commodities, to the end of encouraging the production of the corresponding domestic commodities, imposes a duty to forbear from importing the commodities which it is said to prohibit. But it can hardly be said, with propriety, that the law confers a right. For there is no determinate party who would be injured by a breach of the duty, or towards or with regard to whom the prohibited act is to be forborne. In the technical language of certain systems, breaches of such duties are offences against the sovereign, and the sovereign is invested with rights answering to those duties.
But to impute rights to the sovereign is to talk absurdly. For rights are conferred by commands issuing from the sovereign.
As violating commands issuing from the sovereign, breaches of the duties in question are offences against the sovereign. But so is a breach of every imaginable duty. For all duties are the creatures of sovereign will, or are imposed by Laws or Commands emanating from the Sovereign or State. The truth is, that duties towards oneself, and towards persons indefinitely, are absolute duties. That is to say, there is no determinate party whom a breach of the duty would injure, or towards or in respect of whom the duty is to be observed.
It is difficult to indicate the import of the term ‘Right’ (considered as an abstract expression embracing all rights). For right (as thus considered) is so extremely abstract—is so extremely remote from the particulars which are comprised in its extension—that its meaning or import is, as it were, a shadow, and closely verges upon the confines of no-meaning.
All the ideas or notions which are comprehended by that slender meaning may, I think, be compressed into the following propositions.
Right, like Duty, is the creature of Law, or arises from the command of the Sovereign in a given independent society.
Every right is created or conferred in the following manner.
397 A person or persons are commanded to do or to forbear towards, or with regard to, another and a determinate party.
The person or persons to whom the command is directed, are said to be obliged, or to lie under a duty.
The party towards whom the duty is to be observed, is said to have a right, or to be invested with a right.
In order that we may conceive distinctly the nature of rights, we must descend from Right in abstract to the species or sorts of rights. We must take a right of a given species or sort, and must look at its scope or purpose. That is to say, we must look at the end of the lawgiver in conferring the right in question, and in imposing the duty or obligation which the right in question implies.
Now the ends or purposes of different rights are extremely various. The end of the rights in rem which are conferred over things, is this: that the entitled party may deal with, or dispose of, the thing in question in such or such a manner and to such or such an extent. In order to that end, other persons generally are laid under duties to forbear or abstain from acts which would defeat or thwart it.
But from this general notion of rights over things, we must descend to the species into which they are divisible. For the ends of the various rights which are conferred over things, differ from one another. And what I have said of rights in rem over things, will apply to such rights over persons as avail against other persons generally; and also to such rights availing against other persons generally as have no determinate subjects.
The ends or purposes of rights in personam are widely different from those of rights in rem.
The ends or purposes of the various rights in personam are again extremely different from each other.
Certain definitions of a right, examined.
A right has been defined by certain writers, as that security for the enjoyment of a good or advantage which one man derives from a duty imposed upon another or others.
It has also been said that rights are powers:53 powers over, or powers to deal with, things or persons.
53 In a note, Mr. Austin proposes to ‘read from Bentham’s “Principles of Morals and Legislation,” such passages as relate to the difficulty of defining Right in the abstract, and to the little which such a definition can comprise.’ These passages are to be found at p. 221-223.—S. A.
Objections: 1st, all rights are not powers over things or persons. All (or most) of the rights which I style rights in personam are merely rights to acts or forbearances. And many 398of the rights which I style jura in rem have no subjects (persons or things).
2ndly. What is meant by saying that a right is a power? The party invested with a right, is invested with that right by virtue of the corresponding duty imposed upon another or others. And this duty is enforced, not by the power of the party invested with the right, but by the power of the state. The power resides in the state; and by virtue of the power residing in the state, the party invested with the right is enabled to exercise or enjoy it.54
54 ‘La loi me défend-elle de vous tuer? Elle m’impose l’obligation de ne pas vous tuer. Elle vous accorde le droit de ne pas être tué par moi; elle exige de moi de vous rendre le service négatif qui consiste à m’abstenir de vous tuer.’—Bentham, Traités, etc. vol. i. p. 154.
A service cannot be negative; though an obligation (not to obstruct the enjoyment of a subject from which uses or services are derivable) may.—Marginal Notes.
It may, indeed, be said, that a man has a power over a thing or person, when he can deal with it according to his pleasure, free from obstacles opposed by others. Now in consequence of the duties imposed upon others, he is thus able. And, in that sense, a right may be styled a power. But, even in this sense, the definition will only apply to certain rights to forbearances. In the case of a right to an act, the party entitled has not always (or often) a power.
3rdly. Facultas faciendi (aut non faciendi). This definition is open to the same objections as the last definition. ‘Facultas,’ what?
4thly. ‘A person has a right, when the law authorizes him to exact from another an act or forbearance.’ The test of a right:—that (independently of positive provision) the acts or forbearances enjoined are not incapable of being enforced civilly or in the way of civil action: i.e. at the discretion or pleasure of the party towards whom they are to be done or observed. This would distinguish them from absolute duties. For to talk of a man enforcing a duty against himself is absurd. And where there is no determinate person towards whom it is observed, it is incapable of being enforced civilly.
Right;—the capacity or power of exacting from another or others acts or forbearances;—is nearest to a true definition.
For all these, reasons, I say that a party has a right, when another or others are bound or obliged by the law, to do or to forbear, towards or in regard of him.
But, as I stated at the outset of the analysis, the full import of the term ‘right’ cannot be made to appear till all the related expressions are examined.
399 Notes at the End of Lecture XVI.
Blackstone’s absolute right, vol. i. 123. His confusion of Right as meaning conformity with a rule, and of Right as correlating with duty. (Ibid.)
There is no general definition of a Right by the Classical Jurists.
The following passage from Ulpian is in the Digests:
‘Totum autem jus consistit aut in acquirendo, aut in conservando, aut in minuendo. Aut enim hoc agitur, quemadmodum quid cujusque fiat; aut quemadmodum quis jus suum conservet, aut quomodo amittat.’ But this passage relates, not to the definition of a right, but to the modes wherein rights are required, preserved, or lost.
The definition of a Right is not given in any one part of the Corpus Juris, but extends through three: Primary rights; Violations; and Sanctions. The first adumbrates in generals; the second limits and enlarges, so as to correct the generality of the first; the third describes the Sanction.—Marginal Note in Falck’s Jurist. Encyc. p. 31.
Recht und Gerechtigkeit.
‘Das deutsche Hauptwort Recht hat, wie das lateinische, jus, eine zweifache Bedeutung. 1° Im objectiven Sinne versteht man darunter diejenigen Regeln und Vorschriften, welche die Menschen als vernünftig sinnliche Wesen in ihren gegenseitigen Verhältnissen zu einander, als die Norm ihrer freien Handlungen zu beobachten haben. Dasjenige, was mit diesen Vorschriften übereinstimmt bezeichnen wir mit dem Beiworte recht (justum sive rectum)55 und die auf dem innern eignen Antriebe des Menschen und auf seiner Neigung zum Guten beruhende Uebereinstimmung der Handlungen desselben, mit den Vorschriften des Rechts heisst Gerechtigkeit (justitia). 2° Im subjectiven Sinne hingegen, bedeutet Recht so viel als Befügniss zu handeln, oder die moralische Möglichkeit entweder etwas selbst thun zu dürfen, oder zu verlangen dass ein Anderer zu unserm Vortheil etwas thue oder unterlasse.56 Hier zeigt es also das günstige Verhältniss eines Menschen zu einem Andern an, und ist gleichbedeutend mit demjenigen, was wir auch wohl Gerechtsame oder Gerechtigkeit in diesem Sinne zu nennen pflegen.’—Mackeldey, Lehrbuch des heutigen römischen Rechts, p. 1.
55 Right as opposed to Wrong.—Marginal Note.
56 Right as opposed to obligation. Necessitas officium.—Marginal Note.
‘Jus vocamus conditionem facultatemque faciendi aut non faciendi. Ex quo nascitur ut juri semper respondeat aliorum officium;57 idque aut commune est omnium, quod eo solo cernitur, ut ne quis alterum 400lædat aut certorum hominum proprium, scilicet ex eo jure oriundum, quo singuli singulis obstringuntur.
57 Potestas et officium: jus in personam et obligatio.—Marginal Note.
‘Atque juris quidem vis omnis in cogendi potestate posita est, eâque aut perfectâ, quæ actionibus maxime continetur, aut imperfectâ quæ defensionibus tantum. Omnino autem hæc sunt sine quibus esse nequit jus, et persona in quam cadere potest jus et materia juris legitima, et causa juri constituendo idones.’—Mühlenbruch, Doctrina Pandectarum, vol. i. p. 144.
‘Jedes Recht führt als solches die Möglichkeit des Zwanges mit sich; entweder um den Verpflichteten zu positiven Handlungen zu nöthigen, oder ihn davon abzuhalten.’—Thibaut, System des Pandecten-Rechts, vol. i. p. 44.