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accordance with his wishes, while a general feeling of disapproval results when any one prevents him from so doing or abstaining at his pleasure, or refuses to act in accordance with his wishes.
Jurisprudence is specifically concerned only with such rights as are recognized by law and enforced by the power of a State. may therefore define a 'legal right,' in what we shall hereafter see is the strictest sense of that term, as a capacity residing in one man of controlling, with the assent and assistance of the State, the actions of others.
It may be as well to re-state in a few words precisely what we mean by saying that any given individual has 'a right.'
If a man by his own force or persuasion can carry out his wishes, either by his own acts, or by influencing the acts of others, he has the 'might' so to carry out his wishes.
If, irrespectively of having or not having this 'might,' public opinion would view with approval, or at least with acquiescence, his so carrying out his wishes, and with disapproval any resistance made to his so doing; then he has a 'moral right' so to carry out his wishes.
If, irrespectively of his having, or not having, either the might, or moral right on his side, the power of the State will protect him in so carrying out his wishes, and will compel such acts and forbearances on the part of other people as may be necessary in order that his wishes may be so carried out, then he has a 'legal right' so to carry out his wishes.
(If it is a question of might, all depends upon a man's own powers of force or persuasion. If it is a question of moral right, all depends on the readiness of public opinion to express itself upon his side. If it is a question of legal right, all depends upon the readiness of the State to exert its force on his behalf.) It is hence obvious that a moral and a legal right are so far from being identical that they may easily be opposed to one another. Moral rights have, in general, but a subjective support, legal rights have the objective support of the physical force of the State. The whole purpose of laws is to announce in what cases that objective support will be granted, and the manner in which it may be obtained. In other words, Law exists, as was stated previously, for the definition and protection of rights.
Every right, whether moral or legal, implies the active or passive furtherance by others of the wishes of the party having the right.
Wherever any one is entitled to such furtherance on the part of others, such furtherance on their part is said to be their 'duty.' Where such furtherance is merely expected by the public opinion. of the society in which they live, it is their 'moral duty.'
Where it will be enforced by the power of the State to which they are amenable, it is their 'legal duty.'
The correlative of might is necessity, or susceptibility to force; of moral right is moral duty; of legal right is legal duty.) These pairs of correlative terms express, it will be observed, in each case the same state of facts viewed from opposite sides.
A state of facts in which a man has within himself the physical force to compel another to obey him, may be described either that A has the might to control B, or that B is under a necessity of submitting to A. So when public opinion would approve of A commanding and of B obeying, the position may be described either by saying that A has a moral right to command or that B is under a moral duty to obey. Similarly, when the State will compel B to carry out, either by act or forbearance, the wishes of A, we 'may indifferently say that A has á legal right, or that B is under a legal duty.
SALMOND, JURISPRUDENCE, sec. 72.
(A right is an interest recognized and protected by a rule of right. It is any interest, respect for which is a duty, and the disregard of which is a wrong.
All that is right or wrong, just or unjust, is so by reason of its effects upon the interests of mankind, that is to say, upon the various elements of human well-being, such as life, liberty, health, reputation, and the uses of material objects. If any act is right or just, it is so because and in so far as it promotes some form of human interest. If any act is wrong or unjust, it is because the interests of men are prejudicially affected by it. Conduct which has no influence upon the interests of anyone has no significance either in law or morals.
Every wrong, therefore, involves some interest attacked by it, and every duty involves some interest to which it relates, and for whose protection it exists. The converse, however, is not true. Every attack upon an interest is not a wrong, either in fact or in law, nor is respect for every interest a duty, either legal or natural. Many interests exist de facto and not also de jure; they receive no recognition or protection from any rule of right. The violation
of them is no wrong, and respect for them is no duty. For the interests of men conflict with each other, and it is impossible for all to receive rightful recognition. The rule of justice selects some for protection, and the others are rejected.
The interests which thus receive recognition and protection from the rules of right are called rights. Every man who has a right to anything has an interest in it also, but he may have an interest without having a right. Whether his interest amounts to a right, depends on whether there exists with respect to it a duty imposed upon any other person. In other words, a right is an interest the violation of which is a wrong.
Every right corresponds to a rule of right, from which it proceeds, and it is from this source that it derives its name. That I have a right to a thing means that it is right that I should have it. All right is the right of him for whose benefit it exists, just as all wrong is the wrong of him whose interests are affected by
Rights, like wrongs and duties, are either moral or legal. A moral or natural right is an interest recognized and protected by the rule of natural justice-an interest the violation of which would be a moral wrong, and respect for which is a moral duty. A legal right, on the other hand, is an interest recognized and protected by the rule of legal justice-an interest the violation of which would be a legal wrong done to him whose interest it is, and respect for which is a legal duty. "Rights," says Ihering, "are legally protected interests."
It should be noticed that in order that an interest should become a legal right, it must obtain not merely legal protection, but also legal recognition. The interests of beasts are to some extent protected by the law, inasmuch as cruelty to animals is a criminal offence. But beasts are not for this reason possessed of legal rights. The duty of humanity so enforced is not conceived by the law as a duty towards beasts, but merely as a duty in respect of them. There is no bond of legal obligation between mankind and them. The only interest and the only right which the law recognizes in such a case is the interest and right of society as a whole in the welfare of the animals belonging to it. He who illtreats a child violates a duty which he owes to the child, and a right which is vested in him. But he who illtreats a dog breaks no vinculum juris between him and it, though he disregards the obligation of humane
conduct which he owes to society or the State, and the correlative right which society or the State possesses. Similarly, a man's interests may obtain legal protection as against himself, as when drunkenness or suicide is made a crime. But he has not for this reason a legal right against himself. The duty to refrain from drunkenness is not conceived by law as a duty owing by a man to himself, but as one owing by him to the community. The only interest which receives legal recognition is that of society in the sobriety of its members.
HOLLAND, JURISPRUDENCE, chap. 8.
We have next to consider more particularly what is the character of those elements from which a Right results. They are:
(1) A person in whom the right resides' or who is 'clothed with the right,' or who is benefitted by its existence.
(2) In many cases, an object over which the right is exercised. (3) Acts or forbearances which the person in whom the right resides is entitled to exact.
(4) A person from whom these acts or forbearances can be exacted; in other words, against whom the right is available; in other words, whose duty it is to act or forbear for the benefit of the subject of the right.
The elements of a legal right may be expressed diagrammatically as follows:
entitled-in whom the power or capacity of influence resides or inheres.
obliged-on whom the corresponding duty falls; toward whom the influence is directed. on whom it operates.
material or corporeal
with respect to which it exists
immaterial or incorporeal
and is exercised.
which determines its character or scope, gives rise to event it, or with reference to which it exists.
In addition to natural rights and legal rights, political rights should also be distinguished. By political rights we mean powers or capacities of taking an active part in the government, which the State concedes to or recognizes in certain classes of citizens. ) Ancient law did not distinguish legal from political rights. It allowed
the former only to those who had the latter.
In modern states we
Natural rights belong to or reside in human beings.
Legal or civil rights belong to or reside in persons, natural (i. e., human beings) or juristic (e. g., municipalities, corporations).
Political rights belong to citizens or to those upon whom the State has conferred a partial citizenship.)
As the three categories are not necessarily identical, it follows. that possession of one form of rights does not imply possession of the others.
In modern times the law aims to accord civil or legal rights to all natural persons to the extent of their moral or natural rights. The tendency is also to extend political rights as widely as possible. Ancient law limited them and confused them. It conceded no legal rights to the foreigner; if the State gave him partial political rights, that fact gave him partial legal rights also. To-day all human beings are persons, i. e., subjects of at least some legal rights. Formerly this was not so.
MARKEY, ELEMENTS OF LAW, sec. 164.
Sometimes a right exists only as against one or more individuals, capable of being ascertained and named; sometimes it exists generally against all persons, members of the same political society as the person to whom the right belongs; or, as is commonly said, somewhat arrogantly, it exists against the world at large. Thus in the case of a contract between A and B, the right of A to demand performance of the contract exists against B only; whereas in the case of ownership, the right to hold and enjoy the property exists against persons generally. This distinction between rights is marked by the use of terms derived from the Latin: the former are called rights in personam; the latter are called rights in rem.
HOLLAND, JURISPRUDENCE, chap. 9.
A right is available either against a definite person or persons, or against all persons indefinitely. A servant, for instance, has a right to his wages for the work he has done available against a definite individual, his master; while the owner of a garden has a right to its exclusive enjoyment available against no one individual more than another, but against everybody.
This distinction between rights has been expressed by calling a right of the definite kind a right in personam, of the indefinite kind a right in rem. And these terms, though not perfectly satisfactory, have obtained a currency which is of itself a recommendation, and moreover are perhaps as good as any substitutes which could be