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THE PRINCIPLE
OF THE
DERIVATION OF RIGHTS

CHAPTER 1

Some logical rules to be born in mind in the derivation of rights

322. Our investigation must begin, I believe, with an observation about how we have to express ourselves, and first of all, about the use of the word `right itself. This word is sometimes (in fact, very often) taken to mean an entire group of rights, not a single right. For example, we say `the right of external ownership when we mean `the right of disposing of a given thing with complete freedom of will. The second meaning includes an infinite number of actions and activities, each of which can be considered as a right.

There are, therefore, complex and simple rights. Complex rights include many simple rights. A simple right is an activity (whether potency or act, action or experience) that either cannot be further simplified in its real existence, or is understood as simple relative to other activities.

323. Obviously, the distinction between simple and complex rights is purely verbal and only explains the double use of the word `right. But the distinction is important for the order and logical clarity of the subject we are discussing. From it, we have this rule of method: `To be certain that a right which has been made known to us exists in reality, we must first see whether it is complex. If it is, we must break it down and reduce it to simple rights. We must then demonstrate the existence of each of these. Failure to apply this rule can result in deception and the admission of non-existent rights.

Very often we are satisfied that we have demonstrated a complex right in all its complexity, although our demonstration extends at most to only a majority of simple rights included in the complex right. As a result we mistakenly think we have fully demonstrated the existence of a total right. This explains the great number of errors and inexactitudes to be found in writers on the science of Right. It also explains our human propensity to false claims, and to constant litigation. However I do not think it necessary to use this rule of method all the time, because discussion would be prolonged excessively and sometimes uselessly. It is sufficient to have recourse to it whenever the uncertainty of the subject seems to demand it.

324. Another source of errors in determining rights is the omission of anyone of the five characteristics of right. These characteristics indicate a second rule of method for regulating the way we must derive and determine rights. It can be expressed as: `The existence of a right is not rigorously demonstrated without the demonstration of the existence of each of its five constituents.

Let us imagine that some simple activity is being carried on, as the preceding rule prescribed. In order to show that a right is present in this activity we must show that all five characteristics and constitutive elements of right are verified in the activity, namely, that it contains 1. physical activity, 2. personship, 3. eudaimonological value, 4. lawfulness, and 5. the duty in others to respect the activity.

325. This rule is clearly the source of the distinction between true rights and simply lawful actions . We cannot say we have a true right to do an action solely because it is lawful; we must always take account of the jural duty in others to leave us free. If this duty exists, the action acquires the nature of right. For example, an employer permits an employee to do many things which, relative to the employer, are not in the employees right, simply because there is no jural duty in the employer to leave the other free; he could, if he wished, prohibit the other from acting.(181)

326. It is therefore clear that the notion of right always involves a relationship (at least a possible relationship) with other human beings in whom a corresponding jural duty can be conceived. Hence rights are divided into full and non-full rights. The former are those which have a corresponding jural duty in all other human beings. The latter are rights relative not to all human beings but to those in whom there is a corresponding jural duty. In the latter case the action itself, which is a true right relative to those in whom the jural duty exists, is not a right relative to others who do not have the same jural duty. In this case the action will at most be a simply lawful action.

327. This observation has also been neglected, although it gives rise to a third rule of method for the discussion of rights. This rule can protect us from many errors. It states: `If I have demonstrated that a moral duty to avoid impeding a given action does not exist in some human beings, I have not at the same time demonstrated that the action is not a true right relative to other human beings who have the moral duty to respect the action; I have simply demonstrated that the action is not a right relative to those individuals alone in whom the duty does not exist.

Thus, if an employee under obligation to his employer to work ten hours a day is granted a holiday for a fixed time, he acts licitly if he uses his time for his own advantage. Any action he now does licitly is not a right relative to his employer, who could always stop the holiday and recall him to work, but it can be considered a right relative to all other human beings who have the moral obligation not to deprive him of his freedom or the faculty of working for his own profit and pleasure.

Neglect of this distinction gave rise to innumerable useless, subtle and insoluble questions in the science of right. Is an action a right or not? Some authors, considering the action relative to one kind of persons, saw it as a right; others did not, because they considered it relative to other kinds of persons.

328. All the rights considered so far are contained in the true notion of right. But other rights exist which I have called presumed rights.(182) They are called rights because they must be considered and respected as if they were rights, although in themselves they are not. This kind must also be borne in mind if we are to avoid confusing them with true rights. Such a distinction, which also constitutes a useful rule for solving many practical and scientific questions on right, provides the following important corollary: `Although I must consider certain things in others as if they were true rights, I could never consider the same things as rights in myself.

Notes

(181) Some systematic authors who recognise rights as coming only from the State or the government of civil society (things which they confuse) divide civil laws into obligatory and permissive. They maintain that permissive laws are the non-acts of a ruler, not those with which a ruler abrogates, modifies or suspends previously promulgated laws. A ruler, in their opinion, permits what he does not prohibit; the governative power extends its authority not only to all the things it positively intends, but tacitly to those things about which it says and disposes nothing. With this non-act it permits and ratifies! This is absurd; such a system favours not simply despotism but the greatest despotism, as I said earlier. It supposes that civil government is lord of all things and of all persons, and that nothing lies outside the limits of its authority. Anything it does not forbid, therefore, must be considered in the same light as the permission which an employer gives to his employee to use for himself the energy and time he has pledged to the employer!

(182) Cf. 292.

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