LECT. XVI defensionibus tantum. Omnino autem hæc sunt sine quibus esse nequit jus, et persona in quam cadere potest jus et materia juris legitima, et causa juri constituendo idonea."-Mühlenbruch, Doctrina Pandectarum, vol. i. p. 144. 'Jedes Recht führt als solches die Möglichkeit des Zwanges mit sich; entweder um den Verpflichteten zu positiven Handlungen zu nöthigen, oder ihn davon abzuhalten.'-Thibaut, System des Pandecten-Rechts, vol. i. p. 44. LECT. Import of 'Right' in abstract. 6 LECTURE XVII. ABSOLUTE AND RELATIVE DUTIES. In my last Lecture, I attempted to settle the import of the term right,' considered as an expression embracing all rights, or considered as an expression for rights in abstract, or without regard to their generic and specific differences. The import of the term 'Right,' as thus considered, may (I think) be expressed briefly, in the following manner. A monarch or sovereign body expressly or tacitly commands, 'that one or more of its subjects shall do or forbear from acts, towards, or in respect of, a distinct and determinate party.”57 The person or persons who are to do or forbear from these acts, are said to be subject to a duty, or to lie under a duty. The party towards whom those acts are to be done or forborne' is said to have a right, or to be invested with a right. Consequently, the term 'right' and the term relative duty' are correlating expressions. They signify the same notions, considered from different aspects, or taken in different series. The acts or forbearances which are expressly or tacitly enjoined, are the objects of the right as well as of the corresponding duty. But with reference to the person or persons commanded to do or forbear, a duty is imposed. With reference to the opposite party, a right is conferred. 57 In the case of the negative duties corresponding to jus in rem, it is not necessary to take into consideration any determinate or assigned party. The parties on whom the duty is incumbent, are restricted to persons within the jurisdiction of the sovereign;' conse quently, to persons determined generically. In every case of a right, and of an obligation (sensu Romano) the party having the right, or the party bound by the obligation, is assignable individually or generically, or both: And must be considered as assigned individually. XVII As I intimated at the outset of the analysis through which LECT. I am now journeying, duties may be distinguished into relative and absolute.58 Duties are relative or A relative duty is incumbent upon one party, and correlates absolute. with a right residing in another party. In other words, a relative duty answers to a right; or implies, and is implied by, a right. Where a duty is absolute, there is no right with which it correlates. There is no right to which it answers. It neither implies, nor is it implied by, a right. Now the term 'absolute' is a negative expression. It signifies the absence of some object to which the speaker or writer expressly or tacitly refers. As applied to a duty, it denotes that the duty in question has no corresponding right. But, in order to the complete explanation of a negative expression, we must first explain the object of which it signifies the absence. Accordingly, I have attempted to explain 'Right' (and 'duty' as correlating with 'right'), and now proceed to the duties which have no corresponding rights, or which (in a word) are absolute. duties de Every legal duty (like every legal right) emanates from Absolute sovereign will. It flows from the command (express or tacit) fined by of a monarch or sovereign body. And the party upon whom exhaustive it is imposed is said to be legally obliged, because he is tion. obnoxious or liable to those means of compulsion or restraint which are wielded by that superior. Every duty is a duty to do or forbear. A duty is relative, or answers to a right, where the sovereign commands that the acts shall be done or forborne towards a determinate party, other than the obliged. All other duties are absolute. Consequently, a duty is absolute in any of the following cases: 1st, where it is commanded that the acts shall be done or forborne towards, or in respect of, the party to whom the command is directed. 2dly, Where it is commanded that the acts shall be done or forborne towards or in respect of parties other than the obliged, but who are not determinate 58 For 'absolute duties,' see Bentham, Traités de Législation,' i. 154, 305, 247. 'Principles of Morals and Legislation,' pp. 222, 289, 308, Blackstone's 'absolute moral or religious duties. 41. duties' are Vol. iv. ch. enumera LECT. XVII Order in which 1 shall con lute duties persons, physical or fictitious. For example, towards the members generally of the given independent society; or towards mankind at large. 3dly, Where the duty imposed is not a duty towards man; or where the acts and forbearances commanded by the sovereign, are not to be done or observed towards a person or persons. 4thly, Where the duty is merely to be observed towards the sovereign imposing it: i.e. the monarch, or the sovereign number in its collegiate and sovereign capacity. I think that this enumeration completely exhausts the cases wherein duties or obligations can be considered absolute. sider abso- Accordingly, for the purpose of explaining and exemplifying the general nature of those duties, I shall consider them in the order which I have now announced. Though I should probably arrange them in another order, if I attempted to expound them in detail. in the present Lecture. Self-regarding duties, and duties not regarding man, regard persons generally But before I endeavour to explain and exemplify the classes of absolute duties, I will briefly advert to a topic upon which I may insist hereafter. I have said that some of these duties are self-regarding: that is to say, that the acts or forbearances which the Law in respect enjoins are to be done or observed by the party obliged towards or in respect of himself. of their remote purpose. I have said that others of these duties are not duties towards man: that is to say, that the acts or forbearances, enjoined by the Law, are not to be done or observed towards persons, or towards human creatures. But in styling some of these duties self-regarding, and in affirming of others of these duties that they are not duties towards man,' I look exclusively at their immediate or proximate scope. Considered with reference to their more remote purposes, they are absolute duties regarding persons generally. For, assuming that they are imposed at the suggestions of general Utility, they regard the members generally of the given political society, or they regard mankind at large: so far, that is, as Laws, established in a given community, can promote or contemplate an end so vague and uncertain as the weal of human kind. For example, the duty incumbent upon you to forbear from suicide, is a self-regarding duty, in respect of its proximate purpose. It is imposed directly, to the end of deterring you from destroying your own life. But remotely or indirectly, it is an absolute duty regarding persons generally. For it is partly imposed for the purposes of preserving a member to the community, and of deterring its members generally from the act of suicide by the consequences annexed to the act in the single or particular instance. LECT. XVII Again: A duty to forbear from cruelty towards the lower animals, is not a duty towards man in respect of its proximate scope. Its proximate or direct scope, is to save the lower animals from needless suffering: from suffering which has no tendency to promote the good of man, or decidedly outweighs the good which man can derive from it. But in respect of its remote purposes, the duty is an absolute duty regarding persons indefinitely. For tending to preserve and cherish the sentiment of benevolence or sympathy, it tends to the ⚫good of the community, and to the good of mankind at large. Nor does this apply exclusively to those absolute duties, which I have styled (for the sake of distinction) self-regarding, or of which I have affirmed (for the same purpose) that they are not duties towards man.' It also applies to relative duties, or to duties which cor- their relate with rights. In numerous instances, rights are conferred (and their correlating duties imposed) with the direct or immediate purpose of promoting the general good: (as, for example, the rights of judges and other political subordinates): And rights are conferred indirectly to the same extensive purpose, although their proximate end be the advantage of the parties entitled, or of other determinate parties for whom they are conferred in trust. For example, The immediate purpose of a right of property, is either the advantage of the proprietor himself, or of some determinate party for whom he is a Trustee. But the ulterior or remote end for which such rights are conferred, is the advantage of the community at large. Consequently, absolute duties, and duties correlating with rights, are not distinguishable when viewed from a certain aspect. Considered in respect of their ultimate or remote scope, all duties regard persons generally. Relative gard per duties re sons gene rally, in respect of remote purpose. towards are, indi And as duties which regard directly determinate or assigned Duties persons, regard indirectly persons generally and indefinitely, persons so is the converse of the proposition equally true. That is generally to say, duties which regard directly persons considered gene- rectly, rally, regard indirectly determinate persons. For as the towards degeneral or public interest is an aggregate of individual terminate interests, duties which tend to promote the good of the gene duties persons. LECT. Jus Publicum et ral or whole, tend to promote the good of its several or single members. In order that we may conceive correctly many important distinctions, it is necessary that we should conceive precisely the truths which I have now stated. For example, the Roman Lawyers, and most writers upon Privatum. Jurisprudence, divide Law into Public and Private. According to the Roman Lawyers, Public Law is that, 'quod ad publice utilia spectat.' Private Law is that department of the whole, quod ad singulorum utilitatem-ad privatim utilia-spectat.' Civil Injuries, and Crimes. But this, it is manifest, is not the ground of the intended distinction. For since the general interest is an aggregate of individual interests, Law regarding the former, and Law' regarding the latter, regard the same subject. In other words, the terms 'public' and 'private' may be applied indifferently to all Law. Which is as much as to say, that the distinction in question is a distinction without a difference. It is manifestly impossible to distinguish the two departments by a property common to both. I shall endeavour, hereafter, to analyse the distinction. Briefly stated, the distinction between Public and Private Law is this. The former regards persons as bearing political characters. The latter regards persons who have no political characters, and persons also who have them as bearing different characters. In a word, Public Law is the law of political Status; and, instead of standing opposed to the body of the law, is a branch of one of its departments namely, of the Law of Persons. In which light it was justly considered by Hale; and, after Hale, by Blackstone. Again: Civil Injuries and Crimes are distinguished by Blackstone and others in the following manner. Civil Injuries are private wrongs and concern individuals only. Crimes are public wrongs and affect the whole community. If Blackstone had but reflected on his own catalogue of crimes, he must (I think) have seen, that this is not the basis of the capital distinction in question. For the greater half of them are offences against rights. In other words, they are violations of duties regarding determinate persons, and therefore affect individuals in a direct or proximate manner. Such, for instance, are offences against life and body: murder, mayhem, battery, and the like. Such, too, are theft and other offences against property. |