We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 25 February 2009
Real and Personal Rights.—In different systems of legal nomenclature the term “right” has different meanings, some writers applying it in a restricted, and others in a wider, sense. I shall use it in its wider sense as including “personal rights,” “proprietary rights,” “powers,” “liberties,” “licences,” and so on. The precise meaning of these various kinds of right need not be discussed here, because all legal rights can be broadly divided into two main classes—“personal rights” and “real rights.” As reference will occasionally be made to this broad distinction, a brief explanation of its character is necessary. According to Gloag and Henderson, the difference between real rights and personal rights is correlative to the distinction between duties and obligations. Thus, if I have the full proprietary right in a certain article, including possession and use, this is called a Real Right; and I can make the demand against men in general, or “the world at large,” that my possession and use should not be interfered with. The world at large owes me the Duty of non-interference. I may, however, lend my property to someone for a stated period; and at the end of this period I have the right that he in particular should perform the specific act of returning my property to me. Here it is said that I have a Personal Right against him, and that he has an Obligation to perform this specific act.
page 3 note 1 See Gloag and Henderson, p. 26.
page 3 note 2 Op. cit., pp. 24–6.
page 4 note 1 Shorter Oxford English Dictionary.
page 6 note 1 P. 237.
page 6 note 2 Commonsense in Law, pp. 45–60Google Scholar.
page 6 note 3 Pp. 46–7.
page 6 note 4 Commonsense in Law, p. 62Google Scholar.
page 6 note 5 The Nature and Sources of Law, p. 18Google Scholar.
page 6 note 6 Vinogradoff and Gray are actually criticizing Ihering, but on this particular point Ihering's view seems to resemble that of Salmond.
page 6 note 7 Jurisprudence (9th edit.), p. 77Google Scholar.
page 6 note 8 See below, Sect. D, par. 49.
page 8 note 1 Gloag and Henderson, p. 413.
page 8 note 2 Op. cit., p. 425.
page 8 note 3 P. 35.
page 8 note 4 Pr. 115–16.
page 8 note 5 P. 531.
page 8 note 6 Chap. xxii.
page 9 note 1 See above, par. 32.
page 9 note 2 See above, par. 41.
page 10 note 1 To avoid unnecessary refinements I shall use the term “duty” to cover both duties and obligations unless the distinction between them is important for the sense of the argument.
page 10 note 2 Pp. 236 ff.
page 10 note 3 See above, par. 32.
page 11 note 1 With regard to certain anomalous cases, such as English “penal actions,” which do not, I think, affect the substance of my argument, see Kenny, , Outlines of Criminal Law, 14th edit., pp. 7 ffGoogle Scholar., and his Cases Illustrative of English Criminal Law, 8th edit., pp. 4–12Google Scholar.
page 11 note 2 This is technically true even of “penal actions” which assert a personal right against the defendant, the plaintiff asserting that, in virtue of certain acts performed by both of them, the defendant has incurred a “quasi-contractual” obligation (see Kenny, , Cases, p. 6Google Scholar). But, technicalities aside, a “penal action” is in reality a criminal prosecution for the encouragement of which the state offers financial inducements.
page 11 note 3 E.g. Kenny, op. cit., and Gloag and Henderson, chap, xlviii.
page 12 note 1 Nature and Sources of the Law, p. 9Google Scholar.
page 13 note 1 Sect. C, par. 44.
page 13 note 2 P. 240.
page 13 note 3 Held, e.g., by Salmond, pp. 330 f.
page 13 note 4 Gray, p. 43.
page 13 note 5 The Right and the Good, p. 49Google Scholar.
page 14 note 1 Ross, p. 50.
page 14 note 2 Gray, p. 20.
page 14 note 3 Ibid., p. 12.
page 15 note 1 But even in the case of criminal procedure, Gray's theory breaks down. “For centuries after the Norman Conquest there were in England three modes of accusation and three modes of trial. There was the appeal or accusation by a private person, indictment or accusation by a grand jury, and information in the nature of a declaration in the King's suit, filed either by the Attorney-General or the Master of the Crown Office.” (Webb, , Two Centuries' Growth of American Law, pp. 345–6Google Scholar.) That is, a particular wrong might be proceeded against, either on the motion of a private individual or on the motion of a public official.
page 15 note 2 Gloag and Henderson, p. 521.
page 15 note 3 Gray, pp. 29 ff.
page 15 note 4 Gray (p. 43) actually recognizes the possibility of “attributing” someone else's will to an animal. Surely this should have prevented his adoption of the conception of right which he expounds on pages 12 and 20.
page 15 note 3 Ross's position (p. 52) is, certainly, that a moral right must not be identified with a “power”; and he only says that a legal right may be identified with a “power.” But if he does not define “right” in terms of “power,” what exactly does he mean by “capacity to claim”?
page 16 note 1 See above, sect. C, par. 38.
page 16 note 2 For Gray, the “power” is perhaps what the law gives in the creation of a right, rather than the “nucleus” of a right. But I find his whole discussion of “right” rather difficult to understand; and I am inclined to suspect that this is at least partly due to confusion of thought on his part.
page 17 note 1 Outlines of Criminal Law (14th edit.), pp. 171–2Google Scholar.
page 17 note 2 Gloag and Henderson, p. 583.
page 18 note 1 See above, par. 46.
page 18 note 2 Holland, p. 330.
page 19 note 1 See Gray, pp. 46 ff.
page 19 note 2 P. 92.
page 19 note 3 Gloag and Henderson, chap, xlvii.
page 19 note 4 See par. 46.
page 19 note 5 Outlines of Criminal Law, pp. 4 fGoogle Scholar.
page 20 note 1 Since this is not only a right against the world at large, but is also a right owned by the members of the public as such, it should (I think) be classified as a public right.
page 21 note 1 See Kenny, , Outlines of Criminal Law, pp. 113 ffGoogle Scholar.; and his Cases Illustrative of English Criminal Law, pp. 89 fGoogle Scholar.
page 21 note 2 SirMackenzie, George, Laws and Customs of Scotland in Matters Criminal, 2nd edit., p. 75Google Scholar.
page 22 note 1 See Gray, , Nature and Sources of the Law, pp. 39 ffGoogle Scholar., on the legal personality of supernatural beings. It appears that when once God is given legal rights there is a natural tendency to ascribe to Him also legal obligations. Thus while, on the one hand, it may be declared that “our dear lady Mary the mother of Jesus Christ and the Knight Saint George be the feudal lords of this parish”; on the other hand it may be laid down that “The Holy Ghost is bound to pay 40 shillings for the two fields which it has had in the side farm” (p. 42, notes 1 and 2).
page 23 note 1 Everyman Encyclopædia, article “Blasphemy.”
page 23 note 2 Robertson, , The Government, Constitution, and Laws of Scotland, p. 215Google Scholar.
page 23 note 3 Gloag and Henderson, p. 577.
page 23 note 4 See, e.g., Westermarck, , Origin and Development of Moral Ideas, vol. ii, chap, xlGoogle Scholar; and Bryce, , Studies in History and Jurisprudence, vol. ii, essay xviGoogle Scholar.
