Austin’s theory, would only be true of customs as to which these
marks were absent. It is of course true that when a rule enforced
only by opinion becomes for the first time enforceable by a court
of justice—which is the same thing as the first time of its being
actually enforced—its juridical character is changed. It was
positive morality; it is now law. So it is when that which was
before the opinion of the judge only becomes by his decision a
rule enforceable by courts of justice. It was not even positive
morality but the opinion of an individual; it is now law.
The most difficult of the common terms of law to define is right; and, as right rather than duty is the basis of classification, it is a point of some importance. Assuming the truth of the analysis above discussed, we may go on to say that in the notion of law is involved an obligation on the part of some one, or on the part of every one, to do or forbear from doing. That obligation is duty; what is right? Dropping the negative of forbearance, and taking duty to mean an obligation to do something, with the alternative of punishment in default, we find that duties are of two kinds. The thing to be done may have exclusive reference to a determinate person or class of persons, on whose motion or complaint the sovereign power will execute the punishment or sanction on delinquents; or it may have no such reference, the thing being commanded, and the punishment following on disobedience, without reference to the wish or complaint of individuals. The last are absolute duties, and the omission to do, or forbear from doing, the thing specified in the command is in general what is meant by a crime. The others are relative duties, each of them implying and relating to a right in some one else. A person has a right who may in this way set in operation the sanction provided by the state. In common thought and speech, however, right appears as something a good deal more positive and definite than this—as a power or faculty residing in individuals, and suggesting not so much the relative obligation as the advantage or enjoyment secured thereby to the person having the right. J. S. Mill, in a valuable criticism of Austin, suggests that the definition should be so modified as to introduce the element of “advantage to the person exercising the right.” But it is exceedingly difficult to frame a positive definition of right which shall not introduce some term at least as ambiguous as the word to be defined. T. E. Holland defines right in general as a man’s “capacity of influencing the acts of another by means, not of his own strength, but of the opinion or the force of society.” Direct influence exercised by virtue of one’s own strength, physical or otherwise, over another’s acts, is “might” as distinguished from right. When the indirect influence is the opinion of society, we have a “moral right.” When it is the force exercised by the sovereign, we have a legal right. It would be more easy, no doubt, to pick holes in this definition than to frame a better one.[1]
The distinction between rights available against determinate persons and rights available against all the world, jura in personam and jura in rem, is of fundamental importance. The phrases are borrowed from the classical jurists, who used them originally to distinguish actions according as they were brought to enforce a personal obligation or to vindicate rights of property. The owner of property has a right to the exclusive enjoyment thereof, which avails against all and sundry, but not against one person more than another. The parties to a contract have rights available against each other, and against no other persons. The jus in rem is the badge of property; the jus in personam is a mere personal claim.
That distinction in rights which appears in the division of law into the law of persons and the law of things is thus stated by Austin. There are certain rights and duties, with certain capacities and incapacities, by which persons are determined to various classes. The rights, duties, &c., are the condition or status of the person; and one person may be invested with many status or conditions. The law of persons consists of the rights, duties, &c., constituting conditions or status; the rest of the law is the law of things. The separation is a mere matter of convenience, but of convenience so great that the distinction is universal. Thus any given right may be exercised by persons belonging to innumerable classes. The person who has the right may be under twenty-one years of age, may have been born in a foreign state, may have been convicted of crime, may be a native of a particular county, or a member of a particular profession or trade, &c.; and it might very well happen, with reference to any given right, that, while persons in general, under the circumstances of the case, would enjoy it in the same way, a person belonging to any one of these classes would not. If belonging to any one of those classes makes a difference not to one right merely but to many, the class may conveniently be abstracted, and the variations in rights and duties dependent thereon may be separately treated under the law of persons. The personality recognized in the law of persons is such as modifies indefinitely the legal relations into which the individual clothed with the personality may enter.
T. E. Holland disapproves of the prominence given by Austin to this distinction, instead of that between public and private law. This, according to Holland, is based on the public or private character of the persons with whom the right is connected, public persons being the state or its delegates. Austin, holding that the state cannot be said to have legal rights or duties, recognizes no such distinction. The term “public law” he confines strictly to that portion of the law which is concerned with political conditions, and which ought not to be opposed to the rest of the law, but “ought to be inserted in the law of persons as one of the limbs or members of that supplemental department.”
Lastly, following Austin, the main division of the law of things is into (1) primary rights with primary relative duties, (2) sanctioning rights with sanctioning duties (relative or absolute). The former exist, as it has been put, for their own sake, the latter for the sake of the former. Rights and duties arise from facts and events; and facts or events which are violations of rights and duties are delicts or injuries. Rights and duties which arise from delicts are remedial or sanctioning, their object being to prevent the violation of rights which do not arise from delicts.
There is much to be said for Frederic Harrison’s view (first expressed in the Fortnightly Review, vol. xxxi.), that the rearrangement of English law on the basis of a scientific classification, whether Austin’s or any other, would not result in advantages at all compensating for its difficulties. If anything like a real code were to be attempted, the scientific classification would be the best; but in the absence of that, and indeed in the absence of any habit on the part of English lawyers of studying the system as a whole, the arrangement of facts does not very much matter. It is essential, however, to the abstract study of the principles of law. Scientific arrangement might also be observed with advantage in treatises affecting to give a view of the whole law, especially those which are meant for educational rather than professional uses. As an example of the practical application of a scientific system of classification to a complete body of law, we may point to W. A. Hunter’s elaborate Exposition of Roman Law (1876).
It is impossible to present the conclusions of historical jurisprudence in anything like the same shape as those which we have been discussing. Under the heading Jurisprudence, Comparative, an account will be found of the method and results of what is practically a new science. The inquiry is in that stage which is indicated in one way by describing it as a philosophy. It resembles, and is indeed only part of, the study which is described as the philosophy of history. Its chief interest has been in the light which it has thrown upon rules of law and legal institutions which had been and are generally contemplated as positive facts
- ↑ In English speech another ambiguity is happily wanting which in many languages besets the phrase expressing “a right.” The Latin “jus,” the German “Recht,” the Italian “diritto,” and the French “droit” express, not only a right, but also law in the abstract. To indicate the distinction between “law” and “a right” the Germans are therefore obliged to resort to such phrases as “objectives” and “subjectives Recht,” meaning by the former law in the abstract, and by the latter a concrete right. And Blackstone, paraphrasing the distinction drawn by Roman law between the “jus quod ad res” and the “jus quod ad personas attinet,” devotes the first two volumes of his Commentaries to the “Rights of Persons and the Rights of Things.” See Holland’s Elements of Jurisprudence, 10th ed., 78 seq.
