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THE TRANSMISSION OF RIGHTS, AND
THEIR CONSEQUENT MODIFICATIONS

INTRODUCTION

THE SUBJECT OF THIS BOOK AND ITS CONNECTION
WITH THE PRECEDING AND FOLLOWING BOOKS

1004. So far we have discussed connatural rights and the formation of acquired rights. But acquired rights change, and when changed are even considered as new rights. In this sense there are acquired rights whose formation we have not discussed. We must now see which they are and how they differ from those which formed the subject of the preceding book.

1005. Before all, we must distinguish rights at the first level, which are acquired by the use of our natural freedom, not our acquired freedom, that is, not by the exercise of another, previously acquired right. Thus, occupancy of a piece of unoccupied land is effected by an act of natural freedom, which does not presuppose a right already acquired.

1006. We then have rights at the second level, which are acquired only if rights have already been formed at the first level. For example, I cannot acquire the right of pledge over some movable or immovable thing unless the thing has an owner who pledges it to me. The owner is invested with a right which precedes my right of pledge; his right is at the first level relative to the pledge which I acquire later.

1007. Rights at the third level follow next; their formation requires as a necessary condition rights already formed at the second level. An example would be the right acquired by the owner of a pledge if I wrongfully sold and destroyed the pledge. Here a right of repayment presupposes the right of pledge, just as the right of pledge presupposes the right of ownership of the thing pledged.

1008. Obviously this is not the final level of rights; there can be as many levels as we wish, but all must be determined by the same formula: `As a condition of its existence, every right belongs to a higher level than the rights on which it is founded.'

1009. Such is the hierarchy of human rights. It is rooted in the limited nature of human activity, which is modified and increased by its own acts, and uses its preceding acts to perform new acts.(246)

1010. The principal seat of this hierarchy of rights is the particular human activity called intelligence, which is itself subject to a similar law and performs acts divided into what I call levels of reflections.(247)

1011. The division of rights according to the hierarchy of the levels of reflections is not a useless activity but a highly productive classification. The truth of this can be seen by anyone who undertakes a History of the Philosophy of Rights and highlights the stages of progress of nations at different periods of their political life by the higher or lower levels of rights which individuals in those nations attain.

1012. Meditation on the art of the government of nations will show that different levels of rights binding peoples together change the state of civil society; this in turn requires a corresponding change in legislation and politics, that is, in the way of government.

1013. But I cannot pursue such important considerations. I must leave them to thinkers willing to apply their mind to the matter. We must ask ourselves: `What is the level of the rights whose formation I presented in the preceding book? And what is the level of the rights whose formation I must now indicate in this and the following books?'

1014. The preceding book dealt with the formation of some but not all first-level rights.

1015. These primitive rights can in fact be generated in two ways: either by the act of a single person who acquires the right, or by the acts of two or more whose corporate action results in the right. For example, if two or more persons form a society, they have new jural obligations and entirely new rights. Because these rights are new, they are primitive, first-level rights. Thus, before two persons of different sex form the marriage contract, the right of cohabitation for the procreation of children does not exist it is therefore a primitive right.

1016. In the preceding book I have only spoken about those rights at the first level which acquire their subsistence as a result of the act of a single person. It is true that in passing I mentioned a case where, in the very act of acquiring a first-level right (e.g. occupying unowned property), an obligatory contract was, as it were, implicitly introduced which modified the rights arising from occupancy (cf. 521-527). But this fleeting reference did not contain all the elements I consider necessary to elucidate the jural effects resulting from the concerted action of two or more persons.

1017. We must therefore discuss:
1. which first-level rights are posited in being by the acts of two or more persons;
2. the formation of rights at higher levels.

1018. Before dealing with first-level rights which result from the concerted acts of two or more persons, we must carefully consider all the jural effects that can follow from such action.

1019. Without this consideration we could not obtain full knowledge of the jural effects resulting from the acts of two or more persons and could easily fall into error, believing that such acts produce new rights every time they influence rights. This, however, is not the case. If we thought it were, we would harm the science of Right by confusing its ideas and preventing its exact, scientific and orderly progress.

1020. We must therefore distinguish the jural effects which arise from the concerted acts of two or more persons by dividing them into three classes. Sometimes the concerted acts of two or more persons really produce new rights, such as the right to procreate in the marital contract; at other times they simply produce a modification of pre-existing rights. Finally, they sometimes produce simultaneously new rights and modifications of pre-existing rights.

1021. We can see this mixed effect of the production and modifications of rights in all associations, including marriage, where the previously mentioned conjugal debt is a new right simultaneously modifying and making the spouses' external ownership common to both parties.

1022. The discussion of social Right must therefore be placed after the discussion on the production of rights and their modifications; the elements of the discussion must be clarified before we can deal with the complex teaching on the acts and effects of association. What is complex cannot be seriously discussed before we examine what is simple. Thus, after we have dealt separately with the production of rights and their consequent modifications, we will be better equipped to discuss the acts of association by which new rights are created and pre-existing rights are simultaneously modified.

1023. We must note however that the concerted acts of two or more persons produces entirely new rights only in the case of association. In all other cases the `new rights' can be considered modifications of pre-existing rights.

1024. Consequently, what was said in the preceding book about the simple production of rights, and what we intend to say later in the book on social Right, will be sufficient. Our present intention is to limit ourselves to an extensive treatment of the teaching about the modifications these rights undergo.

1025. The teaching on the modifications of rights is very extensive and requires careful indication of its extension and its limits if every part of it is to receive at least a mention. Let us first consider the various accidents which can occur in the modification of rights. This will allow us to arrange our discussion in an orderly way.

1026. In the first place, the acts which modify rights are sometimes contemporaneous and, as it were, elements of the way in which rights are acquired. This was the case in our example of the two hunters who simultaneously shoot the same animal (cf. 522). The accidental presence of two hunters rather than one modifies the right of ownership of the animal and gives rise to the obligation to divide the animal between the two parties.

1027. On the other hand, acts which modify rights sometimes occur when rights already exist; if, for example, a hunter sold the animal he had trapped. The sale would modify the right of his ownership of the animal.

1028. But this circumstance needs no further comment (cf. 521-527). The modification undergone by the right remains the same whether the acts producing it are mixed with the manner of its acquisition or posited afterwards.

1029. We must carefully note that the modifications of rights do not occur solely through the acts of two or more persons but also through the act of a single person, as in the case of the violation of another's rights: the violated rights are modified and from that moment require satisfaction and restoration.

1030. Just as first-level rights are produced either by the act of a single person or by the concerted acts of two or more persons (I will deal with this when I discuss social Right), so it is with their modifications. Our discussion of these modifications would be deficient if we did not consider them both as effects of the acts of two or more persons (as we intend to do in this book) and as effects of the act of a single person (the topic of the following book, `Violated rights, and their resultant modifications').

1031. Modifications of rights are of two kinds.

1032. Some consist in altering the subject of right without any alteration to the right itself. For example, a donation changes only the owner of the thing donated; the right of ownership remains the same.

1033. Strictly speaking this change is not a modification of rights themselves, that is, of their form, but a change of the person in whom the rights adhere. It is not a modification of what is contained in the idea of right, but of the subsistence of right (because this ceases to subsist for one subject and begins to subsist for another).

1034. Other modifications alter the idea, that is, the form of right itself; they splinter it, limit it and add new relationships to it. When a house or section of land is mortgaged, for example, the right of ownership of the house or land has undergone a change of form; the right is reduced in proportion to the quantity of the right conceded to the person in whose favour the mortgage was established.

1035. We have therefore modifications both in the subsistence and in the idea of right (one specific idea is substituted for another), that is, in the formal essence or, if preferred, in the form of right. The first kind of modifications exists solely in the real world, the second belongs to the ideal world.

1036. I call this second kind also `variations' of rights (cf. fn. 240).

1037. These variations are in reality the same as the rights we have called second, third, fourth-level rights, etc.

1038. In fact, higher-level rights are simply first-level rights modified in different ways. If this were not so, they would be completely new and therefore primitive rights, because they would belong to the first level.

1039. Thus, our discussion of the modifications of rights will explain the origin of all rights higher than first-level rights, and will enable us to accomplish what, as we said (cf. 1014-1017), remains to be done.

1040. Our previous considerations indicate the order to be followed in the remaining books. Two things clearly present themselves to be discussed in order to complete our tract on rational Right: the first concerns the nature of the principal modifications to which rights are subject; the second, the nature of the rights arising from associations.

1041. The latter pertain to social Right, the former to the completion of individual Right and as such furnish the matter for this and the following book. Hence, in these two books we will deal with the modifications which rights undergo, and the various forms they take when humanity is considered in a single social state.(248)

1042. The matter of the present book will be those modifications of rights which arise from the concerted acts of two or more persons.

1043. These acts always imply a transmission of rights from one person to another. The title I have therefore given the book is: `The transmission of rights, and their consequent modifications.'

1044. The next book will deal with the modifications which arise from the act of a single person. These modifications take place when the rights of others change. Thus the book is entitled: `The changes in others' rights, the resultant obligations and other jural effects.' (249)

(246) I spoke of this law of human activity in SP, bk. 4, c. 6.

(247) Cf. CE, 1258-1263; CS, 162-174.

(248) `A single social state' because variation in the social state of humanity is matched by variation in rights of the first order to which are joined the modifications discussed in the third and fourth books of individual Right. First-order rights have modes arising from the difference of feelings, in which they are rooted (ER, 81; and cf. 576, 651, 943). After derived Right I will discuss these modes which affect rights and are caused by changes in mankind, particularly by the different levels of civilisation nations have attained. I will trace the History of Rights, which I have already mentioned. It will indicate for civil legislators the many circumstances they must consider in order to adapt the laws to different periods in the life of nations.

(249) It may seem at first that contracts dealt with in this book and harm discussed in the next are totally separate things. But they have a very close affinity in that they both cause modifications of rights and new obligations. Roman legislators took the same view of contracts and harm. The Justinian Institutes speak about harm immediately after contracts, just as I do: `Obligations arise from contracts or quasi-contracts, or from malfeasance or quasi-malfeasance. We must first consider what concerns contracts' (Bk. 3, tit. 14).

Chaper 1

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