(7) Rights to services.—Finally we have to take account of rights vested in one person to the services of another: the rights, for example, which are created by a contract between master and servant, physician and patient, or employer and workman. In all such cases the object of the right is the skill, knowledge, strength, time, and so forth, of the person bound. If I hire a physician, I obtain thereby a right to the use and benefit of his skill and knowledge, just as, when I hire a horse, I acquire a right to the use and benefit of his strength and speed.
Or we may say, if we prefer it, that the object of a right of personal service is the person of him who is bound to render it. A man may be the subject-matter of rights as well as the subject of them. His mind and body constitute an instrument which is capable of certain uses, just as a horse or a steam-engine is. In a law which recognises slavery, the man may be bought and sold, just as the horse or steam-engine may. But in our own law this is not so, and the only right that can be acquired over a human being is a temporary and limited right to the use of him, created by voluntary agreement with him—not a permanent and general right of ownership over him.
§ 74. Legal Rights in a wider sense of the term.
Hitherto we have confined our attention to legal rights in the strictest and most proper sense. It is in this sense only that we have regarded them as the correlatives of legal duties, and have defined them as the interests which the law protects by imposing duties with respect to them upon other persons. We have now to notice that the term is also used in a wider and laxer sense, to include any legally recognised interest, whether it corresponds to a legal duty or not. In this generic sense a legal right may be defined as any advantage or benefit which is in any manner conferred upon a person by a rule of law. Of rights in this sense there are at least three distinct kinds, sufficiently important to call for separate classification and discussion. These are (1) Rights (in the strict sense), (2) Liberties, and (3) Powers. Having already sufficiently considered the first of these, we shall now deal briefly with the others.
§ 75. Liberties.
Just as my legal rights (in the strict sense) are the benefits which I derive from legal duties imposed upon other persons, so my legal liberties are the benefits which I derive from the absence of legal duties imposed upon myself. They are the various forms assumed by the interest which I have in doing as I please. They are the things which I may do without being prevented by the law. The sphere of my legal liberty is that sphere of activity within which the law is content to leave me alone. It is clear that the term right is often used in a wide sense to include such liberty. I have a right (that is to say, I am at liberty) to do as I please with my own; but I have no right and am not at liberty to interfere with what is another’s. I have a right to express my opinions on public affairs, but I have no right to publish a defamatory or seditious libel. I have a right to defend myself against violence, but I have no right to take revenge upon him who has injured me.
The interests of unrestrained activity thus recognised and allowed by the law constitute a class of legal rights clearly distinguishable from those which we have already considered. Rights of the one class are concerned with those things which other persons ought to do for me; rights of the other class are concerned with those things which I may do for myself. The former pertain to the sphere of obligation or compulsion; the latter to that of liberty or free will. Both are legally recognised interests; both are advantages derived from the law by the subjects of the state; but they are two distinct species of one genus.
It is often said that all rights whatsoever correspond to duties; and by those who are of this opinion a different explanation is necessarily given of the class of rights which we have just considered. It is said that a legal liberty is in reality a legal right not to be interfered with by other persons in the exercise of one’s activities. It is alleged that the real meaning of the proposition that I have a legal right to express what opinions I please, is that other persons are under a legal duty not to prevent me from expressing them. So that even in this case the right is the correlative of a duty. Now there is no doubt that in most cases a legal liberty of acting is accompanied by a legal right not to be hindered in so acting. If the law allows me a sphere of lawful and innocent activity, it usually takes care at the same time to protect this sphere of activity from alien interference. But in such a case there are in reality two rights and not merely one; and there are instances in which liberties are not thus accompanied by protecting rights. I may have a legal liberty which involves no such duty of non-interference imposed on others. If a landowner gives me a licence to go upon his land, I have a right to do so, in the sense in which a right means a liberty; but I have no right to do so, in the sense in which a right vested in me is the correlative of a duty imposed upon him. Though I have a liberty or right to go on his land, he has an equal right or liberty to prevent me. The licence has no other effect than to make that lawful which would otherwise be unlawful. The right which I so acquire is nothing more than an extension of the sphere of my rightful activity. So a trustee has a right to receive from the beneficiaries remuneration for his trouble in administering the estate, in the sense that in doing so he does no wrong. But he has no right to receive remuneration, in the sense that the beneficiaries are under any duty to give it to him. So an alien has a right, in the sense of liberty, to enter British dominions, but the executive government has an equal right, in the same sense, to keep him out.[[180]] That I have a right to destroy my property does not mean that it is wrong for other persons to prevent me; it means that it is not wrong for me so to deal with that which is my own. That I have no right to commit theft does not mean that other persons may lawfully prevent me from committing such a crime, but that I myself act illegally in taking property which is not mine.[[181]]
§ 76. Powers.
Yet another class of legal rights consists of those which are termed powers. Examples of such are the following: the right to make a will, or to alienate property; the power of sale vested in a mortgagee; a landlord’s right of re-entry; the right to marry one’s deceased wife’s sister; that power of obtaining in one’s favour the judgment of a court of law, which is called a right of action; the right to rescind a contract for fraud; a power of appointment; the right of issuing execution on a judgment; the various powers vested in judges and other officials for the due fulfilment of their functions. All these are legal rights—they are legally recognised interests—they are advantages conferred by the law—but they are rights of a different species from the two classes which we have already considered. They resemble liberties, and differ from rights stricto sensu, inasmuch as they have no duties corresponding to them. My right to make a will corresponds to no duty in any one else. A mortgagee’s power of sale is not the correlative of any duty imposed upon the mortgagor; though it is otherwise with his right to receive payment of the mortgage debt. A debt is not the same thing as a right of action for its recovery. The former is a right in the strict and proper sense, corresponding to the duty of the debtor to pay; the latter is a legal power, corresponding to the liability of the debtor to be sued. That the two are distinct appears from the fact that the right of action may be destroyed (as by prescription) while the debt remains.