3. The first application being physical and the second ethical, the third is juridical. The transition from the second to the third is easy. Law is justice as recognised and protected by the state. The rules of law are the rules of right, as authoritatively established and enforced by tribunals appointed to that end. What more natural, therefore, than for the ethical terms to acquire derivatively a juridical application? At this point, however, our modern English right has parted company with its Continental relatives. It has remained physical and ethical, being excluded from the juridical sphere by the superior convenience of the English law.
4. The fourth and last use of the terms we are considering may be regarded as derivative of both the second and third. It is that in which we speak of rights, namely, claims, powers, or other advantages conferred or recognised by the rule of right or the rule of law. That a debtor should pay his debt to his creditor is not merely right, it is the right of the creditor. Right is his right for whose benefit it exists. So, also, wrong is the wrong of him who is injured by it. The Germans distinguish this use of the term by the expression subjectives Recht (right as vested in a subject) as opposed to objectives Recht, namely, the rule of justice or of law as it exists objectively. The English right has been extended to cover legal as well as ethical claims, though it has, as we have seen, been confined to ethical rules.
A.S. RIHT.—It is worthy of notice that the Anglo-Saxon riht, the progenitor of our modern right, possessed like its Continental relatives the legal in addition to the ethical meaning. The common law is folc-riht.[[482]] The divine law is godes riht.[[483]] A plaintiff claims property as “his by folc-riht,”[[484]] even as a Roman would have claimed it as being dominus ex jure Quiritium. The usage, however, did not prosper. It had to face the formidable and ultimately successful rivalry of the English (originally Danish) law, and even Norman-French, on its introduction into England, fell under the same influence. For a time, indeed, in the earlier books we find both droit and ley as competing synonyms,[[485]] but the issue was never doubtful. The archaism of “common right” as a synonym for “common law” is the sole relic left in England of a usage universal in Continental languages.
EQUITY.—The English term equity has pursued the same course of development as the German recht and the French droit.
1. Its primitive meaning, if we trace the word back to its Latin source, aequum, is physical equality or evenness, just as physical straightness is the earliest meaning of right and its analogues.
2. Its secondary sense is ethical. Just as rightness is straightness, so equity is equality. In each case there is an easy and obvious metaphorical transition from the physical to the moral idea. Equity therefore is justice.
3. In a third and later stage of its development the word takes on a juridical significance. It comes to mean a particular portion of the civil law—that part, namely, which was developed by and administered in the Court of Chancery. Like recht and droit it passed from the sense of justice in itself to that of the rules in accordance with which justice is administered.
4. Fourthly and lastly we have to notice a legal and technical use of the term equity, as meaning any claim or advantage recognised or conferred by a rule of equity, just as a right signifies any claim or advantage derived from a rule of right. An equity is an equitable, as opposed to a legal right. “When the equities are equal,” so runs the maxim of Chancery, “the law prevails.” So a debt is assignable “subject to equities.”
JUS.—We have to distinguish in the case of jus the same three uses that have already been noticed in the case of recht, droit, and equity.
1. Right or Justice. “Id quod semper aequum ac bonum est jus dicitur,” says Paulus.[[486]] From jus in this sense are derived justitia and justum.