CONNATURAL RIGHTS
Chapter 5
The limitation of connatural rights
68. The nature of connatural rights will be seen more clearly if we consider them relative to their limitation.
69. A very important question immediately arises: `Are our connatural rights (that is, the personship and personal ownership of the faculties innate to human nature) injured when the exercise of these faculties is impeded by other persons?'
70. We must first distinguish between the power to act and the action itself of the power.
71. As we have said, it does not necessarily follow that because some power is ours of right, all possible actions of that power are ours of right. Even though some particular power to act were shown to be ours of right, we would still have to show that each action done with this power was ours of right each action is the matter of a new, simple right, and simple rights have to be demonstrated individually, not as a whole.(28)
72. Furthermore, we have distinguished between simply lawful actions and actions constituting a true right.(29) An action may have been found to be lawful, but this does not entitle us to conclude straightaway that the action is the matter of a full right in such a way that we would be harmed if anyone impeded it in any way.
73. In our innate powers therefore we must distinguish activities which actually exist from those which do not yet exist but can be produced.
Every power contains the actuality called `first act';(30) this is immanent and constitutes the power itself. The acts which come from the power, however, are transient, although they leave some effects in the power (which is always modified and, as it were, enveloped by certain of its habits). Relative to first act, they are called `second acts' or simply and more commonly `acts' or `actions'. It is clear that first acts form one thing and constitute one right with the powers themselves.
74. Second acts' can be considered from three points of view: 1. as not yet existing but only possible; 2. as actually existing at the moment the power posits them; 3. as having already taken place.
75. If they have already taken place, they no longer exist and cannot as such be the matter or subject of a right. They can however leave behind certain consequences which produce the matter of right, as we will see in the next book when we speak about the acquisition of dominion over external things. But because they no longer exist, they are not themselves rights.
76. These transient acts, when posited and thus subsisting, can be subjects of real rights. But because none of these second acts is inborn in the human being, they can be classed only as acquired, not as connatural rights.
77. Finally, if we consider second acts as merely possible and not subsistent, they cannot be the subjects of rights, precisely because they do not exist in themselves and are therefore nothing.
78. As we have seen, right must be a subsistent activity, that is either the personal principle, or something joined to the personal principle by the moral-physical bond of ownership. But an action that does not really exist cannot have any of these characteristics. A non-existent action is not an activity, nor is it joined to the human person by any moral-physical bond; the person has not taken possession of the action because it has not been posited. Consequently, this kind of action does not pertain to real things.
79. Actions which I can do, but have not yet done, are not mine by right. Nevertheless I am certainly able to do them, just as the new-born baby will be able to use the faculties given it by nature. When the new-born posits second acts with all its powers, it does something lawful. Moreover, as soon as it does whatever is useful to itself, it exercises its right in a true sense, provided it does not harm another's ownership. But the actions, up to the moment when the baby actually does them, can only be considered as simply lawful rather than jural or rightful.(31)
80. If a right were always exercised simply by positing lawful actions, no one could obstruct or impede it, because to impede the exercise of a right is to violate the right. But each human being can limit another's sphere of action and diminish the quantity of another's lawful actions by first positing some lawful actions which exclude another's. The principle we propose for the limitation of the natural activity of every human being is: `Do not harm another' or `Do not harm another's activity in so far as it is personal' or `Do not diminish another's ownership'. To harm others means in fact to harm their personal freedom or their ownership. We can therefore perform, and do truly perform lawful things as long as we do not diminish or injure another's ownership. Every human being different from us is able to do the same and, as long as another law does not forbid him, always does what is harmless and lawful. Human beings, therefore, when they posit lawful actions, reciprocal ly limit the sphere of their mutual activity. They do this by changing the state of things so that the action of a neighbour, which was previously harmless and lawful (doing no harm to any ownership), now becomes harmful, and injures another's ownership established by previous, lawful actions. Thus, if someone takes a seat previously unoccupied, others cannot take it without removing and therefore harming the occupant. But prior to its being taken, the seat was free and could lawfully have been taken by anybody.
81. Everyone, therefore, by his lawful action can impede anothers actions because such actions, while remaining unposited, do not constitute a real right. If they are not obstructed by anothers ownership, they are simply lawful, but unlawful if impeded by anothers ownership.
82. It is true that possible actions can also be considered as existing virtually in the powers. But in this case their virtual existence constitutes a right only relative to lawful actions which another has no reason to impede.
Hence, we can easily recognise a double right in every innate power:
1. a right whose subject is the power alone;
2. a right whose subject is the virtuality (present in the power) of lawful actions, which no one has reason to impede.
83. This second right (reducible to the right of jural freedom) would be violated by anyone who diminished the sphere of my possible actions without a just and lawful motive, that is, not in order to take possession of a good which has no owner (a lawful action), but for mere caprice or malevolence, or solely to exert dominion over me, all of which is unlawful and injurious.
Notes
(28) Cf. ER, 322-323, The principle of derivation. - Hence, in the definition of right we give `activity' a more general meaning than `faculty' or `power', etc. Activity is present both in potency or in act, present not only in every action but in every experience.
(29) Ibid., 324-345.
(30) Cf. OT, 1005-1019.
(31) Cf. ER, 322-323.