It is clear, therefore, that a power is not the same thing as a right of the first class. Neither is it identical with a right of the second class, namely, a liberty. That I have a right to make a will does not mean that in doing so I do no wrong. It does not mean that I may make a will innocently; it means that I can make a will effectively. That I have a right to marry my cousin does not mean that such a marriage is legally innocent, but that it is legally valid. It is not a liberty that I have, but a power. That a landlord has a right of re-entry on his tenant does not mean that in re-entering he does the tenant no wrong, but that by so doing he effectively terminates the lease.[[182]]
A power may be defined as ability conferred upon a person by the law to determine, by his own will directed to that end, the rights, duties, liabilities, or other legal relations, either of himself or of other persons. Powers are either public or private. The former are those which are vested in a person as an agent or instrument of the functions of the state; they comprise the various forms of legislative, judicial, and executive authority. Private powers, on the other hand, are those which are vested in persons to be exercised for their own purposes, and not as agents of the state. Power is either ability to determine the legal relations of other persons, or ability to determine one’s own. The first of these—power over other persons—is commonly called authority; the second—power over oneself—is usually termed capacity.[[183]]
These, then, are the three chief classes of benefits, privileges, or rights conferred by the law: liberty, when the law allows to my will a sphere of unrestrained activity; power, when the law actively assists me in making my will effective; right in the strict sense, when the law limits the liberty of others in my behalf. A liberty is that which I may do innocently; a power is that which I can do effectively; a right in the narrow sense is that which other persons ought to do on my behalf. I use my liberties with the acquiescence of the law; I use my powers with its active assistance in making itself the instrument of my will; I enjoy my rights through the control exercised by it over the acts of others on my behalf.[[184]][[185]]
§ 77. Duties, Disabilities, and Liabilities.
There is no generic term which is the correlative of right in the wide sense, and includes all the burdens imposed by the law, as a right includes all the benefits conferred by it. These legal burdens are of three kinds, being either Duties, Disabilities, or Liabilities. A duty is the absence of liberty; a disability is the absence of power; a liability is the presence either of liberty or of power vested in some one else as against the person liable. Examples of liabilities correlative to liberties are the liability of a trespasser to be forcibly ejected, that of a defaulting tenant to have his goods seized for rent, and that of the owner of a building to have his windows darkened or his foundations weakened by the building or excavations of his neighbours. Examples of liabilities correlative to powers are the liability of a tenant to have his lease determined by re-entry, that of a mortgagor to have the property sold by the mortgagee, that of a judgment debtor to have execution issued against him, and that of an unfaithful wife to be divorced.
The most important form of liability is that which corresponds to the various powers of action and prosecution arising from the different forms of wrongdoing. There is accordingly a narrow sense of the word liability, in which it covers this case exclusively. Liability in this sense is the correlative of a legal remedy. A synonym for it is responsibility. It is either civil or criminal according as it corresponds to a right of action or to a right of prosecution.[[186]][[187]]
SUMMARY.
| The nature of a Wrong. | ||
| Moral and legal wrongs. | ||
| The nature of a Duty. | ||
| Moral and legal duties. | ||
| The nature of a Right. | ||
| Interests. | ||
| Their protection by the rule of right. | ||
| Interests and rights. | ||
| Moral and legal rights. | ||
| The denial of moral rights. | ||
| The correlation of rights and duties. | ||
| No rights without duties. | ||
| No duties without rights. | ||
| The elements of a legal right. | ||
| 1. Person entitled, or owner. | ||
| 2. Person bound. | ||
| 3. Content. | ||
| 4. Object or subject-matter. | ||
| 5. Title. | ||
| No rights without owners. | ||
| No rights without objects. | ||
| Objects of rights | 1. Material things. | |
| 2. One’s own person. | ||
| 3. Reputation. | ||
| 4. Domestic relations. | ||
| 5. Other rights. | ||
| 6. Immaterial property. | ||
| 7. Services. | ||
| Rights in the generic sense—Any benefit conferred by the law. | ||
| 1. Rights (stricto sensu)—correlative to Duties. | ||
| 2. Liberties—correlative to Liabilities. | ||
| 3. Powers—correlative to Liabilities. | ||
| 1. Rights (stricto sensu)—what others must do for me. | ||
| 2. Liberties—what I may do for myself. | ||
| 3. Powers—what I can do as against others. | ||
| Duties, Liabilities, Disabilities. | ||