§ 72 Rights
A right is an interest recognised 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,170 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 any one 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 any thing 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 that thing. 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 it. In the words of Windscheid,171 “Das Recht ist sein Recht geworden.”
Rights, like wrongs and duties, are either moral or legal. A moral or natural right is an interest recognised and protected by a 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 recognised and protected by a 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,172 “are legally protected interests.”
Bentham set the fashion, still followed by many, of denying that there are any such things as natural rights at all. All rights are legal rights and the creation of the law. “Natural law, natural rights,” he says,173 “are two kinds of fictions or metaphors, which play so great a part in books of legislation, that they deserve to be examined by themselves.... Rights properly so called are the creatures of law properly so called; real laws give rise to real rights. Natural rights are the creatures of natural law; they are a metaphor which derives its origin from another metaphor.” “In many of the cultivated,” says Spencer,174 criticising this opinion, “there has been produced a confirmed and indeed contemptuous denial of rights. There are no such things, say they, except such as are conferred by law. Following Bentham, they affirm that the state is the originator of rights, and that apart from it there are no rights.”
A complete examination of this opinion would lead us far into the regions of ethical rather than juridical conceptions, and would here be out of place. It is sufficient to make two observations with respect to the matter. In the first place, he who denies the existence of natural rights must be prepared at the same time to reject natural or moral duties also. Rights and duties are essentially correlative, and if a creditor has no natural right to receive his debt, the debtor is under no moral duty to pay it to him. In the second place, he who rejects natural rights must at the same time be prepared to reject natural right. He must say with the Greek Sceptics that the distinction between right and wrong, justice and injustice, is unknown in the nature of things, and a matter of human institution merely. If there are no rights save those which the state creates, it logically follows that nothing is right and nothing wrong save that which the state establishes and declares as such. If natural justice is a truth and not a delusion, the same must be admitted of natural rights.175
It is to 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 recognises 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 ill-treats a child violates a duty which he owes to the child, and a right which is vested in him. But he who ill-treats 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 the 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 the society in the sobriety of its members.
Although a legal right is commonly accompanied by the power of instituting legal proceedings for the enforcement of it, this is not invariably the case, and does not pertain to the essence of the conception. As we shall see, there are classes of legal rights which are not enforceable by any legal process; for example, debts barred by prescription or the lapse of time. Just as there are imperfect and unenforceable legal duties, so there are imperfect and unenforceable legal rights.
Rights and duties are necessarily correlative. There can be no right without a corresponding duty, or duty without a corresponding right, any more than there can be a husband without a wife, or a father without a child. For every duty must be a duty towards some person or persons, in whom, therefore, a correlative right is vested. And conversely every right must be a right against some person or persons, upon whom, therefore, a correlative duty is imposed. Every right or duty involves a vinculum juris or bond of legal obligation, by which two or more persons are bound together. There can be no duty unless there is some one to whom it is due; there can be no right unless there is some one from whom it is claimed; and there can be no wrong unless there is some one who is wronged, that is to say, whose right has been violated.
We must therefore reject the opinion of those writers who distinguish between relative and absolute duties, the former being those which have rights corresponding to them, and the latter being those which have none.176 This opinion is held by those who conceive it to be of the essence of a right, that it should be vested in some determinate person, and be enforceable by some form of legal process instituted by him. On this view, duties towards the public at large or towards indeterminate portions of the public have no correlative rights; the duty, for example, to refrain from committing a public nuisance. There seems no sufficient reason, however, for defining a right in so exclusive a manner. All duties towards the public correspond to rights vested in the public, and a public wrong is necessarily the violation of a public right. All duties correspond to rights, though they do not all correspond to private rights vested in determinate individuals.