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41
Yale Law Journal
necessary to insist on this as during the argument at your Lordship's bar it was frequently used in a much wider and more indefinite sense. Thus it was said that a man has a perfect right to fire off a gun, when all that was meant, apparently, was that a man has a freedom or liberty to fire off a gun, so long as he does not violate or infringe any one's rights in doing so, which is a very different thing from a right, the violation or disturbance which can be remedied or prevented by legal process.[1]
While there are numerous other instances of the apt use of the term "liberty," both in judicial opinions[2] and in conveyancing
- ↑ For the reference to Mr. Justice Cave's opinion, the present writer is indebted to Salmond's work on Jurisprudence. Citing this case and one other, Starey v. Graham (1899), 1 Q. B., 406, 411, the learned author adopts and uses exclusively the term "liberty" to indicate the opposite of "duty," and apparently overlooks the importance of privilege in the present connection. Curiously enough, moreover, in his separate Treatise on Torts, his discussion of the law of defamation gives no explicit intimation that privilege in relation to that subject represents merely liberty, or "no-duty."Sir Frederick Pollock, in his volume on jurisprudence (2nd ed., 1904), 62, seems in effect to deny that legal liberty represents any true legal relation as such. Thus, he says, inter alia: "The act may be right in the popular and rudimentary sense of not being forbidden, but freedom has not the character of legal right until we consider the risk of unauthorized interference. It is the duty of all of us not to interfere with our neighbors' lawful freedom. This brings the so-called primitive rights into the sphere of legal rule and protection. Sometimes it is thought that lawful power or liberty is different from the right not to be interfered with; but for the reason just given this opinion, though plausible, does not seem correct." Compare also Pollock, Essays in Jurisp. & Ethics (1882), Ch. I.It is difficult to see, however, why, as between X and Y, the "privilege + no-right" situation is not just as real a jural relation as the precisely opposite "duty + right" relation betwen any two parties. Perhaps the habit of recognizing exclusively the latter as a jural relation springs more or less from the traditional tendency to think of the law as consisting of "commands," or imperative rules. This, however, seems fallacious. A rule of law that permits is just as real as a rule of law that forbids; and, similarly, saying that the law permits a given act to X as between himself and Y predicates just as genuine a legal relation as saying that the law forbids a certain act to X as between himself and Y. That this is so seems, in some measure, to be confirmed by the fact that the first sort of act would ordinarily be pronounced "lawful," and the second "unlawful." Compare Thomas v. Sorrel (1673), Vaughan, 331, 351.
- ↑ Compare Dow v. Newborough (1728), Comyns, 242 ("For the use is only a liberty to take the profits, but two cannot severally take the profits of the same land, therefore there cannot be an use upon a use." It should be observed that in this and the next case to be cited, along with the liberty
