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CHAPTER XIV.: SIXTH GENERAL TITLE OF THE CIVIL CODE. Of Rights. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 3 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 3.
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SIXTH GENERAL TITLE OF THE CIVIL CODE.
It is by imposing obligations, or by abstaining from imposing them, that rights are established or granted. Obligations may be imposed from which no rights shall result;—for example, ascetic obligations which are useful neither to the party bound, nor to others;—but it is not possible to create rights which are not founded upon obligations. How can a right of property in land be conferred on me? It is by imposing upon everybody else the obligation of not touching its productions, &c. &c. How can I possess the right of going into all the streets of a city? It is because there exists no obligation which hinders me, and because everybody is bound by an obligation not to hinder me. When we have examined all rights separately, some will be found to owe their existence to the existence of obligations—the others to the non-existence of the same obligations. All rights rest therefore upon the idea of obligation as their necessary foundation.
In order to speak clearly of rights, it is necessary, in the first place, to distinguish them according to their kinds. The following are the principal divisions:—First division, drawn from the diversity of their source.—1. Rights existing from the absence of obligation; 2. Rights established by obligation. This is a fundamental distinction. Rights resulting from obligations imposed by the laws, have for their base coercive laws: rights resulting from the absence of obligation, have for their base permissive laws.
Second division, drawn from the diversity of their objects. Rights may be established—1. For the maintenance of property; 2. For general safety; 3. For personal liberty; 4. For general tranquillity (the union of safety with security.) So many distinct ends, so many classes of rights.
Third division, drawn from the subjects upon which they are exercised:—1. Rights over things; 2. Rights over persons—over the services of persons.
Rights over persons may either refer solely to the person, or to things and persons.
Under this last head would be found the right of interdiction with respect to things—the right of interdicting to one or all, the occupation of anything, or a certain use of it. This is a right to a negative service—it constitutes exclusive property.
Right solely referring to the person has two branches:—1. Immediate right over the person, in corpus; as conjugal right—the right of parental correction—the right of an officer of justice to seize an individual, to execute a legal sentence, &c.; 2. Immediate right over the person, in animam, consisting of the means of influencing the will; as the right of locating in an advantageous place—the right of dislocation—right of rewarding—right of making a will—right of directing public or private instruction, &c. &c.†
Fourth division, drawn from the extent of the right, that is to say, of the number of persons who are subject to it:—1. Private rights; 2. Political rights.
Fifth division, drawn from the persons in favour of whom the right is established:—1. Personal rights—those which are exercised for the benefit of him who possesses them; 2. Fiduciary rights—those which are possessed to be exercised for the advantage of another only, such as those of factor, attorney, guardian, father, or husband in quality of guardian. All political power is fiduciary; fiduciary rights are the same in nature as personal rights, combined with certain obligations.
Sixth division, drawn from the divisibility of rights:—1. Integral rights; 2. Fractional rights; 3. Concatenated rights.
What I call integral right is the most unlimited—the entire right of property: it includes four particulars—
1. Right of occupation.
2. Right of excluding others.
3. Right of disposition; or the right of transferring the integral right to other persons.
4. Right of transmission, in virtue of which the integral right is often transmitted after the death of the proprietor, without any disposition on his part to those in whose possession he would have wished to place it.
There is not one of these rights which, in a system founded upon the principle of utility, ought not to have its limits.
The first would be limited by the obligation of using without injury to another.
The second, by the obligation of permitting its use, upon urgent occasion, for the benefit of another.
All these rights may also receive different restrictions, for special reasons of utility. Hence, the proprietor of a distillery may be subject to regulations which shall have for their object the collection of the revenue, &c.
These exceptions deducted, what remains is the quantity of integral right.*
Rights of less extent than the integral right may be considered as fractions, and called fractional.
When the whole right is possessed, one is said to have the property of the thing. Is less than this possessed, one is said to have a right,—a right to be exercised over the material thing; for example, a right of chase, a right of way, a right to services.
Concatenated rights are those which are not founded on absolute, but on conditional laws. The law which prohibits, permits, or commands, may add conditions, in such manner that the accomplishment of the one shall be necessary to the accomplishment of the other.
The legislature by itself does all that is possible for the establishment of the right, with the exception only of the act by which the individual puts his seal to it. At that period the obligation arises.
Conditional laws are in an intermediate condition between existence and non-existence; they wait for the operation of some individual to give them the breath of life.
Fractional and concatenated rights may, in certain cases, be called common rights.
Let us now return to the second division,—Rights concerning things. The only right which purely relates to things is that of occupation.
In order to know the kinds, the modifications of this right, it is necessary to know the modifications of which it is susceptible. So many limitations as may exist, so many distinct rights may there exist, each of which may have a separate proprietor.
Under a legislation but little advanced, the right of occupation could not exist in an unlimited form: no person could possess in this manner—scarcely anything could be thus possessed.
The right of occupation may be limited in seven respects:—
1. With regard to the substance of the thing. Thus, from the general right of occupation which I possess over the land which is considered mine, there may be detached in your favour the right of carrying an aqueduct above it, or a sewer underneath it—the right of making a roof project over it, the right to allow a tree to project, the right of exploring mines, &c.
The right of occupation with respect to a house, may either comprehend the whole house, or be limited to a certain chamber; and so of the rest.
It will be seen that this measure of limitation supposes that each thing may be distinguished from every other, and that each part of a thing may be distinguished from every other part: it supposes a complete system of individuation for things.
2. The right of occupation may be limited as to the use; that is to say, as to the manner of occupying. I may gather the fruits of my land, but I may not surround it with a hedge, still less, close all entrance against you. I may perform divine service in the church of which I am the clergyman, but I may not keep shop there.
The right of collecting a product which renews itself, such as water, fish, wood, turf,—does this respect the substance or the use? Again, another species of individuation;—again, other lines of positive demarcation.
3. The right of occupation may be limited as to time. If it be not perpetual, it may be present or future; in the last case, it may be certain or contingent. Present or future, its end may be dated from a determinate or indeterminate period. We may remark here, that when we suppose rights to be certain which are not present, it is only in conformity with custom; for in strictness there is no certainty with respect to anything which is future. In order to possess a certain right, it is necessary that one shall be certain to be alive. With this restriction, a right which ought to commence after the lapse of ten years, for example, is a certain right. A right which ought to vest in me after your decease,—is this certain or contingent? It is certain that you will die, but it is not certain when you will die, nor even that you will die before me. Here there are still required lines of demarcation.
4. The right of occupation may be limited by place. Such a swarm of bees is yours whilst it remains upon your ground. It is mine when it has quitted your land for mine, or it belongs to nobody. Under the ordinary law, men are, in relation to different sovereigns, what bees are to different proprietors.
It will be perceived that this distinction only respects moveable things: also that this species of limitation brings us back to that which has reference to time; since to have a right to a certain thing whilst it continues in a certain place, is to have such right during a certain time. The place serves as an index to the time.
5. The right of occupation may be also limited by a right of interdiction possessed by another; that is to say, when another has the right of interdicting your occupation of the thing. It might seem at first that these two rights would destroy one another; but if the right of interdiction only exist at intervals—if it only exist in connexion with certain customs, the one and the other right may exist, and the one serve to limit the other. It is thus that the poor have the right of gleaning in the fields of the rich, provided that they have not been interdicted.
It may happen that this right of occupation is of no value. It may be, that it may be annihilated by the right of interdiction which limits it. Has, therefore, the right of gleaning any force? When I have collected corn worth many shillings, if you have not previously forbidden me, you could not have me condemned to make even simple restitution. But had I clandestinely taken only a single farthing of your money from your room, you could have had me punished for theft.
6. The right of occupation may be limited by the addition of other persons whose concurrence is necessary for the lawful exercise of the right. Three co-heirs have between them a strong box. No one of them has the right to open it, except in the presence and with the consent of the other two. The right of each is limited by that of his two associates. A right, the exercise of which, in order to be lawful, requires the concurrence of many wills, may be called fractional.
This kind of limitation may also be connected with the right of interdiction. One of the co-heirs refuses his consent to the opening of the strong box; he forbids this act to the others.
7. The right of occupation may further be limited by another right of occupation granted to another proprietor. I have a right to dwell in a certain room: if you have also a right to dwell in the same room, it is evident that I cannot use my right exactly in the same manner as if you had no such right.
It will be seen that this kind of limitation may also be connected with the first and second.
When many persons find themselves possessed of these rights of occupation, limited the one by the others, they are commonly called co-proprietors; and it may be said of the thing, that is possessed by these persons in common.
The right of alienation has also its limitations—its modifications. They correspond with those of the right of occupation. He who is acquainted with these, will not be ignorant of the others.
I must observe that the right of alienation includes a particular kind of right respecting services; for what do I do when I alienate anything in your favour? Among other acts, it is necessary that I dispose of certain services on the part of the officers of the government whose assistance would be necessary to guarantee to you the occupation of this thing. The rights which you acquire over such services, form part of the numerous band of rights which are transferred upon every alienation of property:—with respect to the principal right, they may be called corrobarative rights.
The acts to which it extends, form the measure of a right;—it is to these acts that the view must be directed, in order to obtain those clear ideas which can only be obtained by the contemplation of material objects. The measure of a right of occupation which I possess, is the physical acts which I may exercise towards the thing to be occupied. The measure of the right of exclusion which I have, is the acts that you cannot exercise upon the same thing. The measure of the right of disposition, is the acts which have reference to the two kinds of rights of which I can dispose. But when we have arrived at the idea of a physical act, we have under our eyes a definite image: we have reached the source, we have reached the highest degree of clearness. He who at the name of a right can picture to himself a sensible image, understands the nature of this right; he who is not able thus to represent it, does not yet understand it.
Every right agendi has, then, an act to which it has reference. This act may either be transitive or intransitive: intransitive, if the act only affect the agent himself,—transitive when the act affects a thing or person other than the agent.
Even when the act appears only to affect things, it affects persons—that is to say, the persons to whom the things might be useful—inasmuch as there is nothing to be considered in things, but the services which persons may draw from them.
Hence, when the right appears nominally to be conferred on a thing, it is really conferred on a person, inasmuch as it is always a person who enjoys the advantage resulting from such right.
This is what the compilers of the Roman code never comprehended. According to them, all rights are divided into two masses,—of which the one regards persons, the other things. They have set out with a false unintelligible division into two parts, which are not exclusive with regard to each other. Jura personarum—Jura rerum.
It may be said that they were led to take this division by a species of correspondence or grammatical symmetry; for there is no correspondence between the two appellations except as to the form,—there is none as to the sense. Rights of persons—what does it mean? Rights belonging to persons—rights conferred by the law on persons—rights which persons may enjoy:—everything is clear. Transfer this explanation to rights of things, what is the result? Things which have rights belonging to them—things on which the law has conferred rights—things which the law has wished to favour—things for whose happiness the law has provided:—it is the height of absurdity.
Instead of rights of things, it is proper to say rights over things. The change appears very slight: it, however, overthrows this nomenclature, this division of rights, all this pretended arrangement of the Romanists—since adopted by Blackstone, and according to which he has so badly classed the objects of the law.
If we err in the first step, the further we proceed in the same direction, the further we shall be from the end. How shall he who employs for the explanation of everything an expression which has no meaning,—how shall he communicate a knowledge of all the parts?
This unfortunate double signification has thrown the Romanists into a perpetual confusion. Under the heads of rights of persons, there are nearly as many questions concerning rights over things, as concerning rights over persons. For example, right of the husband over the goods of the wife acquired by his marriage;—right of the father over the property acquired by his son;—right of the members of a political society over the things belonging to that society; and so of the rest.
What a system is that, in which the fundamental terms change their signification every moment!
For expressing in an expeditious manner these rights over things, would it be possible to employ the word so frequently used by the Romanists—servitude? I fear it would be put out of employ by the abusive use they have made of it. It has taken a false acceptance; it is difficult to regenerate it.
If it could be employed, this is the use I would make of it. The partial right of occupation, whether as to the substance of a thing, or as to its use, I would call positive servitude. The right of exclusion with respect to such or such a part of the substance, or such or such a use on the part of the original proprietor, I would call negative servitude. The right over the positive services of the principal proprietor, to be exercised on his part for the improvement of the thing for the profit of the other subordinate proprietors, I should call compulsory servitude.
Other errors of the Romanists upon this matter:—If they are to be believed, there are cases in which rights only subsist by means of the laws, and other cases in which they have subsisted, or still subsist, independent of the laws. Those rights which they represent to us as only subsisting by the law of nature, or the law of nations, or some such other phrase, have no existence at all, or only exist in consequence of civil laws, and by them alone exactly as those whose existence they attribute to these same laws.
They have ill understood legal organization; they have fallen into strange mistakes respecting the manner in which the functions of this vast body are performed. These errors have been anything but matters of indifference. I should never have done, if I were to cite all the false reasonings resting upon these false ideas. Certain rights, it has been said, are not founded upon the civil law; they therefore ought not to be altered by the civil law. Certain laws have only been made at the expense of natural liberty; therefore they are violations of natural liberty; they are therefore unjust.
To say that a law is contrary to natural liberty, is simply to say that it is a law; for every law is established at the expense of liberty—the liberty of Peter at the expense of the liberty of Paul.
When a law is reproached as hurtful to liberty, the inconvenience is not a particular ground of complaint against that law—it is shared by all laws.* The evil which it causes in this manner—is it greater than the good which it does in other ways? This is the only question to be examined.
It is unfortunate that individual and political liberty have received the same name. By means of this double signification, a syllogism may be formed in favour of perpetual revolt. An established law is a restraint upon liberty: a restraint upon liberty is tyranny: tyranny is a legitimate reason for revolt.
This digression is not foreign to the present subject: it shows the importance of just ideas of the origin and nature of rights.
The preparation of a table of rights is a sufficiently dry and ungrateful task; but such labours are required of those who would be of use to the science. It is necessary to distinguish one part of a subject from another, in order to be in a condition to establish true propositions respecting them. Nothing can be asserted, nothing can be denied, respecting them, whilst objects are mixed pell mell, and form only heterogeneous masses. In order to make it understood that one plant is food, and another poison, the characters which distinguish them must be pointed out, and proper names must be assigned to them. So long as there are no names for expressing many rights, or that there is only one and the same name for expressing many dissimilar ones: so long as generic names are employed, without distinguishing the species included under them, it is impossible to avoid confusion—it is impossible to form general propositions which will be true. This observation has already been made, but it often presents itself in a science in which the greatest difficulties arise from a vicious nomenclature.
TABLE OF THE DIVISIONS OF RIGHTS.
I. Sources.—Rights existing from the absence of obligation; rights established by obligations.
II. Ends.—Connexion of the right with the interest of the party.
III. Subject over which they are exercised.
IV. Extent, with respect to the number of persons subject to them.
V. Person whose interest has been the reason for granting them.
VI. Divisibility among persons.
1. Rights of property.
2. Rights of general safety.
3. Rights of general tranquillity.
4. Rights of personal liberty, that is, individual.
5. Integral rights.
6. Fractional rights.
7. Concatenated rights.
8. Personal rights.
9. Fiduciary rights.
10. Private rights.
11. Political rights.
12. Principal rights.
13. Corroborative; or accessory, or subsidiary, or sanctionative rights.
14. Transmissible rights.
15. Intransmissible rights.
RIGHTS OVER THINGS.
1. Right of occupation of the thing.
2. Right by exclusion of another, or by interdiction of occupation by another.
3. Right of interdicting occupation.
4. Right of alienation.
5. Right of occasional disposition.
RIGHTS OVER PERSONS.
1. Right of immediate physical contrectation.
2. Right of immediate moral or pathological contrectation.
3. Right of physical contrectation through the intervention of another.
4. Right of moral or pathological contrectation through the intervention of another.
5. Right of individually commanding pesons.
6. Right of collectively commanding persons.
N.B.—The table of political powers, or the rights exercised by government, is not given here.
[† ]Those two branches of rights are very distinct, but they have no proper names, and I have not found any suitable word in ordinary language for designating them. I would call right in corpus, right of physical contrectation; and the right in animam, right of moral contrectation. Instead of moral contrectation, I would rather say pathological, if this term were familiar.
[* ]Integral, though the most compound of all, is yet the most easily conceived and the shortest to express. For this reason, in making an exposition of rights, it is proper to commence with this.
[* ]The noblest minds have fallen into this error. Adam Smith, in speaking of two laws which he had good reason for disapproving, says—“These two laws were evidently violations of natural liberty, and consequently bad.”—Wealth of Nations, book iv. ch. 1. This consequently would annihilate all laws.