§ 80. Positive and Negative Rights.
In respect of their contents, rights are of two kinds, being either positive or negative. A positive right corresponds to a positive duty, and is a right that he on whom the duty lies shall do some positive act on behalf of the person entitled. A negative right corresponds to a negative duty, and is a right that the person bound shall refrain from some act which would operate to the prejudice of the person entitled. The same distinction exists in the case of wrongs. A positive wrong or wrong of commission is the breach of a negative duty and the violation of a negative right. A negative wrong or wrong of omission is the breach of a positive duty, and the infringement of a positive right. A negative right entitles the owner of it to the maintenance of the present position of things; a positive right entitles him to an alteration of this position for his advantage. The former is merely a right not to be harmed; the latter is a right to be positively benefited. The former is a right to retain what one already has; the latter is a right to receive something more than one already has.
In the case of a negative right the interest which is its de facto basis is of such a nature that it requires for its adequate maintenance or protection nothing more than the passive acquiescence of other persons. All that is asked by the owner of the interest is to be left alone in the enjoyment of it. In the case of a positive right, on the other hand, the interest is of a less perfect and self-sufficient nature, inasmuch as the person entitled requires for the realisation and enjoyment of his right the active assistance of other persons. In the former case I stand in an immediate and direct relation to the object of my right, and claim from others nothing more than that they shall not interfere between me and it. In the latter case I stand in a mediate and indirect relation to the object, so that I can attain to it only through the active help of others. My right to the money in my pocket is an example of the first class; my right to the money in the pocket of my debtor is an instance of the second.
The distinction is one of practical importance. It is much easier, as well as much more necessary, for the law to prevent the infliction of harm than to enforce positive beneficence. Therefore while liability for hurtful acts of commission is the general rule, liability for acts of omission is the exception. Generally speaking, all men are bound to refrain from all kinds of positive harm, while only some men are bound in some ways actively to confer benefits on others. No one is entitled to do another any manner of hurt, save with special ground of justification; but no one is bound to do another any manner of good save on special grounds of obligation. Every man has a right against every man that the present position of things shall not be interfered with to his detriment; whilst it is only in particular cases and for special reasons that any man has a right against any man that the present position shall be altered for his advantage. I have a right against every one not to be pushed into the water; if I have a right at all to be pulled out, it is only on special grounds against determinate individuals.
§ 81. Real and Personal Rights.
The distinction between real and personal rights is closely connected but not identical with that between negative and positive rights. It is based on a difference in the incidence of the correlative duties. A real right corresponds to a duty imposed upon persons in general; a personal right corresponds to a duty imposed upon determinate individuals. A real right is available against the world at large; a personal right is available only against particular persons. The distinction is one of great prominence in the law, and we may take the following as illustrations of it. My right to the peaceable occupation of my farm is a real right, for all the world is under a duty towards me not to interfere with it. But if I grant a lease of the farm to a tenant, my right to receive the rent from him is personal; for it avails exclusively against the tenant himself. For the same reason my right to the possession and use of the money in my purse is real; but my right to receive money from some one who owes it to me is personal. I have a real right against every one not to be deprived of my liberty or my reputation; I have a personal right to receive compensation from any individual person who has imprisoned or defamed me. I have a real right to the use and occupation of my own house; I have a personal right to receive accommodation at an inn.
A real right, then, is an interest protected against the world at large; a personal right is an interest protected solely against determinate individuals. The distinction is clearly one of importance. The law confers upon me a greater advantage in protecting my interests against all persons, than in protecting them only against one or two. The right of a patentee, who has a monopoly as against all the world, is much more valuable than the right of him who purchases the good-will of a business and is protected only against the competition of his vendor. If I buy a chattel, it is an important question, whether my interest in it is forthwith protected against every one, or only against him who sells it to me. The main purpose of mortgages and other forms of real security is to supplement the imperfections of a personal right by the superior advantages inherent in a right of the other class. Furthermore, these two kinds of rights are necessarily very different in respect of the modes of their creation and extinction. The indeterminate incidence of the duty which corresponds to a real right, renders impossible many modes of dealing with it which are of importance in the case of personal rights.
The distinction which we are now considering is closely connected with that between positive and negative rights. All real rights are negative, and most personal rights are positive, though in a few exceptional cases they are negative. It is not difficult to see the reason for this complete or partial coincidence. A real right, available against all other persons, can be nothing more than a right to be left alone by those persons—a right to their passive non-interference. No person can have a legal right to the active assistance of all the world. The only duties, therefore, that can be of general incidence are negative. It may be objected to this, that though a private person cannot have a positive right against all other persons, yet the state may have such a right against all its subjects. All persons, for example, may be bound to pay a tax or to send in census returns. Are not these duties of general incidence, and yet positive? The truth is, however, that the right of the state in all such cases is personal and not real. The right to receive a tax is not one right, but as many separate rights as there are taxpayers. If I owe ten pounds to the state as income tax, the right of the state against me is just as personal as is that of any other creditor, and it does not change its nature because other persons or even all my fellow-citizens owe a similar amount on the like account. My debt is not theirs, nor are their debts mine. The state has not one real right available against all, but an immense number of personal rights, each of which avails against a determinate tax-payer. On the other hand, the right of the state that no person shall trespass on a piece of Crown land is a single interest protected against all the world, and is therefore a single real right. The unity of a real right consists in the singleness of its subject-matter. The right of reputation is one right, corresponding to an infinite number of duties; for the subject-matter is one thing, belonging to one person, and protected against all the world.
Although all real rights are negative, it is not equally true that all personal rights are positive. This is so, indeed, in the great majority of cases. The merely passive duty of non-interference, when it exists at all, usually binds all persons in common. There are, however, exceptional cases in which this is not so. These exceptional rights, which are both negative and personal, are usually the product of some agreement by which some particular individual has deprived himself of a liberty which is common to all other persons. Thus all tradesmen may lawfully compete with each other in the ordinary way of business, even though the result of this competition is the ruin of the weaker competitors. But in selling to another the good-will of my business I may lawfully deprive myself of this liberty by an express agreement with the purchaser to that effect. He thereby acquires against me a right of exemption from competition, and this right is both personal and negative. It is a monopoly, protected not against the world at large, but against a determinate individual. Such rights belong to an intermediate class of small extent, standing between rights which are both real and negative on the one side and those which are both personal and positive on the other.
In defining a real right as one availing against the world at large, it is not meant that the incidence of the correlative duty is absolutely universal, but merely that the duty binds persons in general, and that if any one is not bound his case is exceptional. Similarly a personal right is not one available against a single person only, but one available against one or more determinate individuals. The right of the creditor of a firm is personal, though the debt may be due from any number of partners. Even as so explained, however, it can scarcely be denied, that if intended as an exhaustive classification of all possible cases, the distinction between real and personal rights—between duties of general and of determinate incidence—is logically defective. It takes no account of the possibility of a third and intermediate class. Why should there not be rights available against particular classes of persons, as opposed both to the whole community and to persons individually determined, for example, a right available only against aliens? An examination, however, of the contents of any actual legal system will reveal the fact that duties of this suggested description either do not exist at all, or are so exceptional that we are justified in classing them as anomalous. As a classification, therefore, of the rights which actually obtain legal recognition, the distinction between real and personal rights may be accepted as valid.