ALTERATIONS TO THE RIGHTS OF OTHERS;
CONSEQUENT OBLIGATIONS AND
MODIFICATIONS OF MUTUAL RIGHTS
Chapter 1
The nature of the modifications produced in others' rights by harmful acts
1629. Human activity, and consequently jural freedom, has as its term pleasure in the broadest meaning of the word.
1630. But pleasure presupposes an object or some matter which the active principle enjoys through union with it. Hence ownership.
1631. Ownership shows itself, therefore, as a condition of freedom, which cannot be conceived without ownership; the concept of freedom does not exist if completely deprived of all ownership. Even in `person', that is, in essential freedom, we find an object, the idea of being, which holds the place of primitive ownership.(479)
1632. The object of ownership is then seized, as it were, by our own personal force. This appropriation, when sanctioned by the moral law which prevents others from disturbing it, becomes a right (cf. 1522-1557).
1633. When human beings have the right of ownership over a given thing, they can lawfully exhaust all their personal force upon it with the intention of gaining all the pleasure it is capable of providing. Every different way of applying one's own personal force can in such a case be called a function of the right of ownership. We have already listed as many as eight of these functions (cf. 966).
1634. We have to take careful note of the difference between rights properly understood, and the functions exercised relative to right itself (cf. 967). I can defend whatever right I have, repel anyone attempting to deprive me of it, get it back from those who have taken it from me, demand reparation for injury done, recompense for damage, and so on. These are all different functions I can exercise in virtue of any right that I possess, of any ownership whatsoever that is mine. Only in a more general sense, as we have said, can each function issuing from the right of ownership, but considered in isolation, be called a right.(480)
1635. Granted this, we may ask what constitutes the modifications undergone by others' rights through harmful acts done to the rights. These modifications consist in certain functions of their rights, functions which are occasioned by a harmful act. If there were no acts of this kind, all rights would certainly remain intact, but their possessor would not be able to exercise his personal force in their regard as he can when harm is done. For example, when a right of mine is under attack from someone attempting to usurp it, I can repel the assault. The function which is exercised would not be activated, however, without some attempted usurpation.
1636. Harmful acts, therefore, provide an occasion for an owner to exercise certain functions of his right over which he certainly possessed moral power prior to the injury, but which depended upon the injury for their actuation.
1637. This is the original modification that harmful acts bring to the rights of others. Other modifications in reciprocal rights descend from it.
1638. Indeed, while the threatened harm gives a right to mount a defence, it also produces in the aggressor an obligation to desist from his evil attack, make reparation for the injury done and recompense the damage, etc. These obligations of his correspond to an equal number of rights in me, that is, to the activated functions of my right. As a result, if the person under obligation does not satisfy those obligations, I can use forceful means against him. I can put pressure on him and make him do what I previously could not make him do.
1639. Such obligations, functions of right and moral powers are indeed innate to every right, but cannot be actuated except in virtue of, or as a result of injury. These functions are the argument we must now discuss. We ask: what are these moral powers? What are the jural functions placed in being as a consequence of perpetrated or feared injuries?
Notes
(479) Just as we have posited the essence of right in freedom, so we have placed the principle of the determination of rights in ownership. Of itself, freedom is equal in all rights, precisely because it is the essence in which all rights participate. But we then find that right expresses itself differently to the extent that freedom has differing ownerships in which to expand and exercise itself. Rights, considered in relationship to freedom, are reduced to unity; considered in relationship to the variety of ownership which provides their matter, they are multiple (cf. ER, 318 ss.).
(480) ER, 322-323.