Recognition by the law in the administration of justice is common to all legal rights and duties, but the purposes and effects of this recognition are different in different cases. All are not recognised to the same end. Hence a division of rights and duties into two kinds, distinguishable as perfect and imperfect. A perfect right is one which corresponds to a perfect duty; and a perfect duty is one which is not merely recognised by the law, but enforced. A duty is enforceable when an action or other legal proceeding, civil or criminal, will lie for the breach of it, and when judgment will be executed against the defendant, if need be, through the physical force of the state.[[188]] Enforceability is the general rule. In all ordinary cases, if the law will recognise a right at all, it will not stop short of the last remedy of physical compulsion against him on whom the correlative duty lies. Ought, in the mouth of the law, commonly means must. In all fully developed legal systems, however, there are rights and duties which, though undoubtedly recognised by the law, yet fall short of this typical and perfect form.[[189]]
Examples of such imperfect legal rights are claims barred by lapse of time; claims unenforceable by action owing to the absence of some special form of legally requisite proof (such as a written document); claims against foreign states or sovereigns, as for interest due on foreign bonds; claims unenforceable by action as exceeding the local limits of a court’s jurisdiction, such as claims in respect of foreign land; debts due to an executor from the estate which he administers. In all those cases the duties and the correlative rights are imperfect. No action will lie for their maintenance; yet they are, for all that, legal rights and legal duties, for they receive recognition from the law. The statute of limitations, for example, does not provide that after a certain time a debt shall become extinct, but merely that no action shall thereafter be brought for its recovery. Lapse of time, therefore, does not destroy the right, but merely reduces it from the rank of one which is perfect to that of one which is imperfect. It remains valid for all purposes save that of enforcement. In like manner he from whom a chattel is taken wrongfully, and detained for six years, loses all right to sue the taker for its recovery; but he does not cease to be the owner of it. Nor is his ownership merely an empty title; for in divers ways it may lead him, with the assistance of the law, to the possession and enjoyment of his own again. All these cases of imperfect rights are exceptions to the maxim, Ubi jus ibi remedium. The customary union between the right and the right of action has been for some special reason severed, but the right survives.
For what purposes the law will recognise an imperfect right is a question relating to the concrete details of a legal system, and cannot be fully discussed here. We may, however, distinguish the following effects as those of greatest importance and most general application.
1. An imperfect right may be good as a ground of defence, though not as a ground of action. I cannot sue on an informal contract, but if money is paid or property delivered to me in pursuance of it, I can successfully defend any claim for its recovery.
2. An imperfect right is sufficient to support any security that has been given for it. A mortgage or pledge remains perfectly valid, although the debt secured by it has ceased to be recoverable by action.[[190]] But if the debt is discharged, instead of becoming merely imperfect, the security will disappear along with it.
3. An imperfect right may possess the capacity of becoming perfect. The right of action may not be non-existent, but may be merely dormant. An informal verbal contract may become enforceable by action, by reason of the fact that written evidence of it has since come into existence. In like manner part-payment or acknowledgment will raise once more to the level of a perfect right a debt that has been barred by the lapse of time.
§ 79. The Legal Nature of Rights against the State.
A subject may claim rights against the state, no less than against another subject. He can institute proceedings against the state for the determination and recognition of those rights in due course of law, and he can obtain judgment in his favour, recognising their existence or awarding to him compensation for their infringement. But there can be no enforcement of that judgment. What duties the state recognises as owing by it to its subjects, it fulfils of its own free will and unconstrained good pleasure. The strength of the law is none other than the strength of the state, and cannot be turned or used against the state whose strength it is. The rights of the subject against the state are therefore imperfect. They obtain legal recognition but no legal enforcement.
The fact that the element of enforcement is thus absent in the case of rights against the state, has induced many writers to deny that these are legal rights at all. But as we have already seen, we need not so narrowly define the term legal right, as to include only those claims that are legally enforced. It is equally logical and more convenient to include within the term all those claims that are legally recognised in the administration of justice. All rights against the state are not legal, any more than all rights against private persons are legal. But some of them are; those, namely, which can be sued for in courts of justice, and the existence and limits of which will be judicially determined in accordance with fixed principles of law, redress or compensation being awarded for any violation of them. To hold the contrary, and to deny the name of legal right or duty in all cases in which the state is the defendant, is to enter upon a grave conflict with legal and popular speech and thought. In the language of lawyers, as in that of laymen, a contract with the state is as much a source of legal rights and obligations, as is a contract between two private persons; and the right of the holder of consols is as much a legal right, as is that of a debenture holder in a public company. It is not to the point to say that rights against the state are held at the state’s good pleasure, and are therefore not legal rights at all; for all other legal rights are in the same position. They are legal rights not because the state is bound to recognise them, but because it does so.
Whether rights against the state can properly be termed legal depends simply on whether judicial proceedings in which the state is the defendant are properly included within the administration of justice. For if they are rightly so included, the principles by which they are governed are true principles of law, in accordance with the definition of law, and the rights defined by these legal principles are true legal rights. The boundary line of the administration of justice has been traced in a previous chapter. We there saw sufficient reason for including not only the direct enforcement of justice, but all other judicial functions exercised by courts of justice. This is the ordinary use of the term, and it seems open to no logical objection.[[191]]