Natural Rights on the Threshold of the Scottish Enlightenment. Gershom Carmichael

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       Natural Rights and Agreements ¹

      [Pufendorf distinguished between absolute duties which every man owes to every man (not to harm others, to recognize others as equals, and to be useful to others, so far as it is convenient) and hypothetical duties, which presuppose particular conditions or arrangements. Carmichael comments:]

      Our author’s method relies heavily on the distinction [between “absolute” and “hypothetical” duties]. But he does not explain it with sufficient clarity nor apply it at all skillfully. And since there is the same variety of obligations or duties as of rights to which they correspond, in place of this distinction one may substitute the analysis which we give in the next note [I.9.1.i] and again in the appendix annexed to this treatise.² [I.6.1.i]

      Kinds and creation of rights

      To achieve a clearer conception of the nature of agreements, we must argue some central points on a broader basis. In the first place we must recognize that perfect rights which belong or may belong to individual men, are either natural or adventitious, depending on the foundations on which they rest. Nature herself has endowed each man with natural rights; adventitious rights arise from some human action or other event. Among natural rights are the right of life, the right of physical integrity, the right of chastity, and the right of simple reputation; I mean the right to have all these things. I add the liberty, or power, of ordering one’s actions as one pleases within the broad limits of the common divine laws, as well as the closely related ability to use in common things which are by nature positively common, as also of acquiring any other adventitious rights by appropriate means. All of these are sanctioned by the general precept of natural law, by which every man is forbidden from violating any of these rights in another, that is, of attacking without a special foundation of right any of the good things given above which belong to someone else.

      Adventitious rights are either real or personal. Real rights are concerned with having, possessing, using, etc., some thing (rem); personal rights, with obtaining some thing or service from another person. To real rights, equally as to natural rights, there corresponds from the other side an unlimited obligation not to disturb the owners of these rights in the exercise of them. And to personal rights there correspond limited obligations to render to individuals those things or services which they have a right to require of us.

      Both real and personal rights are created, transferred, and abolished in various ways. Among the many ways by which personal rights are created or abolished, and by which rights of both kinds are transferred from one man to another, one stands out as particularly prominent. This is mutual consent on the part of the person by whom a right is transferred and on the part of the person by whom it is acquired, both being signified by appropriate signs. I say is transferred, because the actual creation and abolition of a personal right lies in a kind of transfer.

      For a perfect personal right (which is the only thing that we are speaking of here)³ is simply a certain particle of a man’s natural liberty which is transferred to another man by some act or event, and takes on the character in this man of a personal right valid against the other, by force of which he may require him to do or not to do anything which, in his judgment, it is in his power to do or not to do. That same right, when it returns to its natural subject and is consolidated with the rest of his natural right, loses its character as a personal right and recovers the name of natural liberty. Thus personal rights are said to be created by those actions by which men begin to be obligated in a particular way by the transfer of some particle of their natural liberty to others; and are equally correctly said to be abolished by the opposite actions, by which men cease to be obligated in that way, when the particle of liberty which they had alienated is restored to them.

      We therefore had good reason to say that the creation and abolition of personal rights as such, no less than their transmission in the same kind (as also in the case of real rights), lies in a form of transfer. And, apart from some modes of transfer which are irrelevant to the present subject, every transfer is very naturally initiated, as we have said, by mutual consent, by a declaration of appropriate signs on the part of the transferor and of the recipient of the right.

      This mutual act seems to take four different forms, depending on the type of right which is being transferred or its circumstances. In the case of real rights, it is always one and the same, carrying in itself from one subject to another the mere transmission of the rights which relate to its immediate object on both sides (see however what we say below at pp. 101–2).⁴ In the case of personal rights, it may produce three possible effects: (1) a right which was previously contained in the natural liberty of the transferor has been transferred to another man and now belongs to him as a personal right against the first party; in this case a new personal right and corresponding obligation are created for the first time. Or, (2) a personal right which previously belonged to the transferor against a third party has been transferred to someone else and now belongs to him against the same third party; here we see the transfer of a personal right of that particular kind. Or, (3) a personal right which previously belonged to the transferor against the recipient is transferred, or rather restored, to him and consolidated with his natural liberty; and in this case the personal right, as such, and the corresponding obligation are extinguished.

      Each of these acts can be performed either unilaterally, with the effect that a right is transferred from one party and merely acquired by the other, or reciprocally, with the effect that a right is transferred by both parties and received by both of them against each other, and the transfer would not be understood to be fully and validly effected without the other. Thus from these various combinations of acts of the same or of different kinds, arise several kinds of reciprocal acts; some of these have specific names given them in law and popular usage, while others have not.

      As for the term pactum, or “agreement,” this stands for a variety of ideas which do not all have the same extension. The definition of pactum given by Ulpian, Digest, II.14.1.2⁵ is the concurrence of two or more persons in the same intent; Ulpian also appends СКАЧАТЬ