500
The Green Bag
lose a limb, my power to act is dimin ished. But my bodily condition is in itself a matter of importance wholly apart from its relation‘ to my power to act. Pain and mutilation are evils per se. As to things the case is different; their condition is, at least generally,
important only in relation to acts. If my property is taken away or damaged, it is an injury to me only because I am thereby prevented from using it, from doing acts with or upon it.
Nevertheless
even in the case of things, the acts that
mitted to possess and use it; a tenant for life may possess the thing and use
it in some ways but not in all ways,-— he may not commit waste; the holder
of an easement may use the servient tenement in certain ways but is not permitted to possess it. If the act is defined by its effect upon a specific person or thing, it is a right in that thing,
and the thing may be called its subject, or as the German lawyers prefer to say,
its object.
A permissive right can be
may be done and the condition of the
exercised by doing the act which forms its content or abstaining from that act,
thing that makes such acts possible are
as the case may be.
distinguishable, and it is more convenient
subject, an act is an exercise of the right only so far as it affects the subject; so far as it affects other things, it is not an exercise of the right and may be
to describe them separately.
In fact,
besides the two kinds of rights above mentioned there are two other kinds; the word “right” has in law four distinct
meanings. The other two, however, are of much less importance. I have explained them, under the names of correspondent and facultative rights,
in my books, the “Common Law” and
If the right has a
wrongful. If A sets fire to his own house, his act, so far as it results in the destruction of the house, is an exercise
of his own right. If the fire spreads and burns B's house, the same act, as to its effect on B’s house, is not an exercise
“Leading Principles of Anglo-American
of his right.
A permissive right cannot
Law," the latter published by Johnson &
be violated.
Violation of a right must
Co., Philadelphia, in 1884. As I have there said, correspondent rights would not need any separate place in a system
be by the conduct of some other person
of law, all that is necessary to say about them falling under the discussion of duties; and facultative rights are all classed as rights of property and would
form a subdivision of the law of property.
than the holder of it, and no conduct _
of others is embraced or referred to in the definition of the right. For the same reason, no duties correspond to
the right.
It is true, a person may be
wrongfully prevented from exercising his right; but the wrong consists in
mentioned I have called permissive and protected rights. To define them
some interference with his person or with the subject of the right which is a violation of some protected right. If
shortly and therefore somewhat roughly:
no
a permissive right is one which results from the legal situation of a person whom the law permits to do or abstain from an act. The act is the content of the right. The rights of free speech and religious liberty are of this kind
interference is not wrongful, even though
The two kinds of rights first above
Most property rights include permissive rights. The owner of a thing is per
protected
right
is
violated,
the
the holder of the permissive right is thereby prevented from exercising it.
A protected right is one which results from the legal situation of a person for whom the law protects a state of fact by imposing duties upon others en
forceable by him.
This too is only a
