Two Books of the Elements of Universal Jurisprudence. Samuel Pufendorf

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СКАЧАТЬ target="_blank" rel="nofollow" href="#ulink_89b67420-69cd-5351-9008-d86e36ac513c">3. What sort of a right inheritance is.

4. Mixed right.

5. Imperfect right.

1. In addition to those meanings by which the word right (jus) is used for law, and for a complex or system of homogeneous laws, as also for a judicial sentence, or the sentence of laws applied to deeds, for example, when we say that the praetor renders judgement (jus), or the jurisconsult answers on a point of law (jus), the most frequent use is to employ it for that moral quality by which we properly either command persons, or possess things, or by which things are owed to us. Thus, under the name of right comes commonly authority over persons as well as over things which are our own or another’s; and that authority which regards things is in a special sense called “the right in the thing.” Concerning these words, however, this discrimination seems to be observed, namely, that authority rather suggests the actual presence of the aforesaid quality over things or persons, but more obscurely connotes, and leaves almost undecided, the manner in which one has acquired it; while right properly and clearly indicates that the quality has been acquired properly and is now also properly held. But because a number of species of the above-mentioned quality rejoice in special designations, which that quality, whereby something is owed us, lacks, we have preferred to mark this quality here in a peculiar way with the designation of right (jus), under the proviso, however, that we do not at all wish to be bound to accept this word always within these narrow limits.

2. Now right is either perfect or imperfect. He who has infringed upon the former does a wrong which gives the injured party in a human court of law ground for bringing action against the injurer. To this corresponds on the other side perfect obligation in him from whom that which is owed us is to come. Therefore, I am able to compel him, when he refuses to pay this debt voluntarily, either by directing action against him before a judge, or, where there is no place for that, by force. Rights of that kind, when they have not yet been deduced with sufficient clearness, or are disputed by him whom they regard, are commonly called pretensions. <59>

3. Furthermore, under the rating of rights, it is customary to bring inheritance, the word being taken not for the property, but for a definite mode of pertinence. Here it must be noted, that inheritance upon the end of the life of him from whom it descends, has the force of plenary right against all who in any way whatsoever have temporary possession or administration of that property. For, by the death of the owner, plenary right to the goods devolves upon the heir, whether he be the heir according to the testament and desire of the former owner, or by the laws of the state. But, so long as the testator is still among the living, there belongs as yet to the heir, no matter in what way he be called to succession, no right which is valid against the testator and can keep him from being able still to make disposal of his goods to please himself, notwithstanding the fact that he has once signified his desire; unless, perchance, civil laws should order that all goods, or a definite part of the same, should altogether be turned over to certain persons, and should not grant the free making of a testament, just as in certain states the authority to dispose by will is allowed in the case of no goods at all, in other states only in the case of goods which have been acquired by one’s own industry. In this case inheritance comes very close to the efficacy of a right, even before the death of the owner, to such a degree that he may not transfer to another, on any ground at all, to the injury of his necessary heir, a notable part of his own goods.

4. It is customary, of a truth, for a number of things to come commonly under the rating of rights, which, if we should care to speak accurately, are a sort of composite made up out of authority and right, both properly so called, involving at the same time either things which presuppose obligation and honour, or something of that sort. Of this kind is citizenship, or the right of citizenship. For this embraces the faculty of exercising with full effect the acts of that state peculiar to its members, and the right of enjoying advantages which are its very own, positing an obligation toward that same state. Thus also civil dignities, for example, nobility and its grades, likewise the honours of learned men, embrace the authority of exercising definite acts proper to that dignity, and the right of enjoying the advantages of that order, to which advantages there adheres in addition a certain honour and intensification of esteem.

5. Now it is an imperfect right, which is called by some an aptitude,¹ when something is owed some one by another in such wise that, if he should deny it, he would, indeed, be acting unfairly, and yet the injured party would by no means be receiving a wrong which would furnish him with an action against the injurer; nor would he be able to assert for himself that right by force, except when necessity does not admit of any other means to secure his safety. In regard to all those things <60> which others owe us on the basis of some imperfect obligation we possess only an aptitude. This is a topic which we shall have to discuss at greater length below. Thus, I am able neither to compel another to do me benefactions, nor to bring an action for ingratitude against another, although, in very truth, he is doing wrong who neglects an occasion for doing a benefaction to others, or does not return the favour as best he can in requital for benefactions received. The following case also frequently occurs, namely, that some one may be able to admit rightly, indeed, that something has been given him by another, in such a way, however, that there is no obligation upon the latter to give it, nor has the former a perfect right to possess it, but merely the bare ability. Thus, for example, when a number of persons equally fit contend for some post, and no one of them has any peculiar right to it before another, he who has the authority to confer the post can select whom he will at pleasure, without leaving at the same time to those who have been rejected any cause for complaint. <61>

DEFINITION IX

Esteem is the value of persons in communal life in accordance with which they are fit to be placed upon an equality with other persons, or to be compared with them, and to be rated either above or below them.

1. Simple esteem.

2. Intensive esteem.

1. ESTEEM of persons in communal life is either simple or intensive. The former is considered either outside of states or inside the same. Simple esteem of a man outside a state consists in this, that he is regarded as the kind of person with whom, as with a man who observes the law of nature, it may be possible to have intercourse. Hence it is clear that all those who use commonly against any men whatsoever, or at least against those who are outside their own fellowships, the same licence which they do against beasts, have no such esteem. Such are states with powers unimpaired, if there be any of that kind, by which all outsiders are regarded indiscriminately as enemies, and especially if they themselves attack these outsiders of their own volition. Likewise, pirates, brigands, highwaymen, assassins, cut-purses, and others of that ilk; whom, unless they are on the way to give up that life of rapacity, it is no more appropriate for others to spare, than to spare wolves or other fierce monsters; nor are the offices of humanity СКАЧАТЬ