[182]. A power is usually combined with a liberty to exercise it; that is to say, the exercise of it is not merely effectual but rightful. This, however, is not necessarily the case. It may be effectual and yet wrongful; as when, in breach of my agreement, I revoke a licence given by me to enter upon my land. Such revocation is perfectly effectual, but it is a wrongful act, for which I am liable to the licensee in damages. I had a right (in the sense of power) to revoke the licence, but I had no right (in the sense of liberty) to do so: Wood v. Leadbitter, 13 M. & W. 838; Kerrison v. Smith, (1897) 2 Q. B. 445.
[183]. On the distinction between powers and other kinds of rights, see Windscheid, I. sect. 37; Terry, p. 100.
[184]. This division of rights into rights (stricto sensu), liberties, and powers, is not intended to be exhaustive. These are the most important kinds of advantages conferred by the law, but they are not the only kinds. Thus, the term right is sometimes used to mean an immunity from the legal power of some other person. The right of a peer to be tried by his peers, for example, is neither a right in the strict sense, nor a liberty, nor a power. It is an exemption from trial by jury—an immunity from the power of the ordinary criminal courts.
[185]. A very thorough examination of the conception of a legal right is to be found in Terry’s Principles of Anglo-American Law (Philadelphia, 1884), a work of theoretical jurisprudence too little known in England, and characterised by much subtle analysis of legal conceptions. Rights are there divided (ch. 6, pp. 84–138) into four kinds, which the author distinguishes as (1) permissive rights (which we have here termed liberties), (2) facultative rights (which we have here termed powers), (3) correspondent rights (which are so called because they correspond to duties, and which we have here termed rights in the strict sense), and (4) protected rights. These last we have not recognised as being in truth a class of rights at all. They are, if I understand Mr. Terry correctly, not rights but the objects of rights stricto sensu; for example, life, reputation, liberty, property, domestic relations, &c. That is to say, they are the things in which a person has an interest, and to which, therefore, he has a right, so soon as, but not until, the law protects that interest by imposing duties in respect of it upon other persons. There is no right to reputation apart from and independent of the right that other persons shall not publish defamatory statements.
[186]. The distinction here drawn between duty and liability may seem to conflict with the common usage, by which certain kinds of duties are apparently spoken of as liabilities. Thus we say that a man is liable for his debts. This, however, may be construed as meaning that he is liable to be sued for them. We certainly cannot regard liability as a generic term including all kinds of duty. We do not say that a man is liable not to commit murder, or not to defraud other persons.
[187]. Of the three classes of rights or legal interests which we have considered, the first, consisting of those which are the correlative of duties, are by far the most important. So predominant are they, indeed, that we may regard them as constituting the principal subject-matter of the law, while the others are merely accessory. In future, therefore, we shall use the term right in this narrow and specific sense, except when the context indicates a different usage; and we shall commonly speak of the other forms of rights by their specific designations.
[188]. The term enforcement is here used in a wide sense to include the maintenance of a right or duty by any form of compulsory legal process, whether civil or criminal. There is a narrower use of the term, in which it includes only the case of civil proceedings. It is in this sense that we have already defined civil justice as being concerned with the enforcement of rights, and criminal justice as being concerned with the punishment of wrongs. As to the distinction between recognising and enforcing a right, see Dicey, Conflict of Laws, p. 31, 2nd ed.
[189]. There is another use of the term imperfect duty which pertains to ethics rather than to jurisprudence, and must be distinguished from that adopted in the text. According to many writers, an imperfect duty is one of such a nature that it is not fit for enforcement, but ought properly to be left to the free will of him whose duty it is. A perfect duty, on the other hand, is one which a man not merely ought to perform, but may be justly compelled to perform. The duty to give alms to the poor is imperfect; that of paying one’s debts is perfect. Perfect duties pertain to the sphere of justice; imperfect to that of benevolence. The distinction is not equivalent to that between legal duties and those which are merely moral. A duty may be a perfect duty of justice, although the actual legal system takes no notice of it; and conversely an imperfect duty of benevolence may be unjustly made by law the subject of compulsion. It does not seem possible, however, so to divide the sphere of duty by a hard and fast line. One of the most noteworthy attempts to do so is to be seen in Spencer’s Principles of Ethics.
[190]. Ex parte Sheil, 4 Ch. D. 789. London & Midland Bank v. Mitchell, (1899) 2 Ch. 161.
[191]. As to rights against the state see Brown’s Austinian Theory of Law, p. 194.