From all this it can be seen that the assertion of a legal right is not always equivalent to its substantiation. Times change, bringing with them new faces and other minds, new problems and new interpretations. Nor, for that matter, are all commonly accepted rights under the law equally to be supported by physical force. Strictly speaking, only those rights which imply a correlative duty are truly legal rights. Reciprocity of action is essential. For example, if Baker has a legally recognized or substantiated right to do, receive, or enjoy something, it is the duty of Atkins and others not to infringe or nullify that right. Mark also, that both duty and right here imply that physical force may be directed against some specified person, or against all persons generally in case of need, in order to establish the claim and protect the interest involved. However, as may be already suspected, not everything that is legally sanctioned or which enters into legal machinery has the same force behind it as in the case we have just cited. The right of ownership, for example, which to the layman seems to be a unit right, involves five distinct things, as follows: (1) the jus disponendi, or right to give away, (2) the jus utendi, or right to use, (3) the jus abutendi, or the right to abuse, (4) the jus prohibendi, the right to keep others away, and (5) the jus possidendi, or the right to recover the property. But only one of these is, strictly speaking, a right in the sense that it involves a correlative duty, namely, the jus prohibendi. For the jus disponendi is simply a power, and not a right at all: and the jus utendi is wholly negative in the legal sense, implying non-interference in the exercise of a natural power; whereas the jus abutendi is a liberty (neither a right nor a power) whose exercise is nominally unrestricted: while the jus possidendi is simply the legal capacity to get back that which one is said to own.
This ends our account of legal rights. We now pass to the consideration of the other uses of this most comprehensive ethical concept. Somewhat by way of contrast to that which has just preceded, let us at once consider
Class F
under which are comprised what are popularly known as “moral” rights.[15]
A casual glance at the appended list of the members of this class might lead one to consider them simply as a continuation of legal rights, but this is by no means the case. Albeit moral rights are identical with legal rights in so far as they imply a multitude of human claims and interests, they are nevertheless emphatically different from them on a much more important point. Moral rights lack all implications of an organized physical force to compel their recognition. The only compulsions that can be said to assist in the establishment of the claims and the protection of the interests comprised under the scope of moral rights are the approval and disapproval of the group which undertakes to recognize and support them. In fine, these compulsions amount to the force of public opinion. And while this force is at times provocative of changes in the method or content of the law which may later be recognized as good, on the whole, public opinion is usually so unspecific and inconstant as to be wholly negligible as a power to enforce any demands. Certainly no jurist regards moral right as obligatory.
On still another count moral rights show a serious defect. For when we say that the enforcement of the claims and interests comprised within the scope of moral rights depends upon the approval of the group, it must not be supposed that the actions of any group and the actions which it approves are necessarily one and the same. This is a sour paradox, but its appropriateness cannot be successfully denied. The standard of conduct which any group subscribes to under pressure, either in writing, or before an audience, is singularly different from the behavior of the group under easier circumstances. Moreover, it is the exception, and not the rule, for those who dominate a group,—whether such masters be parents, political bosses, or any other form of lordling,—to hold their charges to a stricter accountability than they themselves, removed from correlative restraints, recognize as imperative. Doubtless, in the execution of the law, many a time privileges are granted to people of wealth and prestige which are denied to the humbler petitioners at the bar; but the difference between legal and moral practice is significantly this: that in legal practice evasions are no integral part of the machinery. This does not amount to a condemnation of moral rights: it is merely holding up the mirror to man, in order that he may see himself clearly. All in all, consistency may be as impracticable as it has been unsought for in the daily affairs of men.
However, when we consider the unusual claims made in behalf of moral rights, there are valid exceptions to be taken to them. For while in the strict legal sense, moral right is impotent, yet according to the expressed opinion of the untutored majority, moral right is far mightier than legal right. Let us see why this is so.
In the first place, not all human claims and interests are or can be protected by law. It is not the purpose of law to be rigid. However many statutes, for example, are enacted year by year, the interests they are supposed to protect increase too rapidly to be covered by such statutes. Moreover, as in the case with the right of ownership, many powers and privileges are granted, the exact enjoyment or exercise of which no law could either predict or circumscribe. Hence there always remains a residue of interest that is not comprised within the scope of matured legal tradition. But it is just these newer interests for which some persons demand most emphatically the right to be satisfied. We live not in the past, but on the foremost edge of time, and we are prone to demand as much support for our youngest claims as for those which have a thousand years of legal recognition behind them. Now, undoubtedly, many claims are insufficiently recognized by law. When, however, in the pause before this recognition is secured, people begin to claim for such interests a “superior” moral right to be satisfied, and in comparison to that “superior” right assert that legal rights are merely unfounded prejudices, the charge of inconsistency can be leveled directly against them. Ignorance of the function and scope of the law is no excuse for holding it up to ridicule. Indeed, it is not at all certain that the law could include the satisfaction of every human claim and interest whatever without becoming itself destroyed by this inclusion.
In the second place, there are some persons in whom the law’s delays, as well as their experience with the unevenhandedness of justice, has provoked a deep-seated prejudice against particular lawyers and jurists, which prejudice, by means of the fallacy of composition, they readily transmute into a scorn for whatever is expressly denominated as legal. Under such conditions the penchant for moral rights may be often nothing but the product of a mind that has become malcontent with things as they are; with the result that solace is sought in the fiction of a set of moral rights which are regarded as possessing a “higher” or final authority. From such a person come Examples Nos. 59 and 76, recently cited. Two comments can be made upon such a case as this. The first of these is that it is quite certain that no man who has become so pessimistic will see his way clear to the solution of the problem that has given him so much tragic concern. As Spinoza says, “The will and the intellect are one and the same,” but as Spinoza also hinted, the intellect and the emotions are not. Moreover, such malcontentedness is relatively easy to annul: let anyone who curses the law begin to make use of it to his advantage, and his “suppressed complex,” as the Freudians would say, rapidly evaporates.
A third and final reason why moral rights and the so-called moral law are sometimes regarded as superior to all things legal is that among so many persons the curious conviction obtains that they are individually the pets of Providence, and that consequently whether they stir themselves or not, become sagacious or remain meek as lambs, their affairs will be satisfactorily adjusted without their exertions. Under such illusions many persons take refuge throughout their lives, forgetting curiously enough that the order of nature has not supplied them with benevolent guardians, tutors, and managers. The result is that to such people right is synonymous merely with what ought to be, rather than with even a small part of what already is. But when they thus employ the term right, it is debased. One often hears such people say with regard to a catastrophe: “Oh, well, I suppose we shall have to make the best of it,”—a remark that is rarely prophetic of anything more than continued brooding. If it prophesied the accumulation of technique for a continuous, constructive effort, their moral rights would not be so bereft of reality.