The Philosophy of Law: Introduction to the Science of Right, F: Supplementary Remarks on Equivocal Right
With every Right, in the strict acceptation (jus stridum), there is conjoined a Right to compel. But it is possible to think of other Rights of a wider kind (jus latum) in which the Title to compel cannot be determined by any law. Now there are two real or supposed Rights of this kind—EQUITY and THE RIGHT OF NECESSITY. The first alleges a Right that is without compulsion; the second adopts a compulsion that is without Right. This equivocalness, however, can be easily shown to rest on the peculiar fact that there are cases of doubtful Right, for the decision of which no Judge can be appointed.
EQUITY (/Equitas), regarded objectively, does not properly constitute a claim upon the moral Duty of benevolence or beneficence on the part of others; but whoever insists upon anything on the ground of Equity, founds upon his Right to the same. In this case, how ever, the conditions are awanting that are requisite for the function of a Judge in order that he might determine vhat or what kind of satisfaction can be done to this claim. When one of the partners of a Mercantile Company, formed under the condition of Equal profits, has, how ever, done more than the other members, and in conse quence has also lost more, it is in accordance with Equity that he should demand from the Company more than merely an equal share of advantage with the rest. But, in relation to strict Right,—if we think of a Judge con- / sidering his case,—he can furnish no definite data to establish how much mdre belongs to him by the Contract; and in case of an action at law, such a demand would be rejected. A domestic servant, again, who might be paid his wages due to the end of his year of service in a coinage that became depreciated within that period, so that it would not be of the same value to him as it was when he entered on his engagement, cannot claim by Right to be kept from loss on account of the unequal value of the money if he receives the due amount of it. He can only make an appeal on the ground of Equity,—a dumb goddess who cannot claim a hearing of Right,—because there was nothing bearing on this point in the Contract of Service, and a Judge cannot give a decree on the basis of vague or indefinite conditions. Hence it follows, that a COURT OF EQUITY for tha/ decision of disputed questions of Right, would involve a contradiction. It is only where his own proper Rights are concerned, and in matters in which he can decide, that a Judge may or ought to give a hearing to Equity. Thus, if the Crown is supplicated to give an indemnity to certain persons for loss or injury sustained in its service, it may undertake the burden of doing so, although, according to strict Right, the claim might be rejected on the ground of the pretext that the parties in question undertook the performance of the service occasioning the loss, at their own risk.
The Dictum of Equity may be put thus: ‘The strictest Right is the greatest Wrong’ (summum jus summa injuria). But this evil cannot be obviated by the forms of Right although it relates to a matter of Right; for the grievance that it gives rise to can only / be put before a ‘Court of Conscience’ (forum poll), whereas every question of Right must be taken before a CIVIL COURT (forum soli}.
The so-called Right of Necessity (Jus iiccessitatis) is the supposed Right or Title, in case of the danger of losing my own life, to take away the life of another who has, in fact, done me no harm. It is evident that, viewed as a doctrine of Right, this must involve a contradiction. For this is not the case of a ivrongful aggressor making an unjust assault upon my life, and whom I anticipate by depriving him of his own (jus inculpates tutda>); nor consequently is it a question merely of the recommendation of moderation which belongs to Ethics as the Doctrine of Virtue, and not to Jurisprudence as the Doctrine of Right. It is a question of the allowableness of using violence against one who has used none against me.
It is clear that the assertion of such a Right is not to be understood objectively as being in accordance with what a Law would prescribe, but merely subjectively, as proceeding on the assumption of how a sentence would
3 pronounced by a Court in the case. There can, in ict, be no Criminal Law assigning the penalty of death a man who, when shipwrecked and struggling in extreme danger for his life, and in order to save it, may thrust another from a plank on which he had saved himself. For the punishment threatened by the Law could not possibly have greater power than the fear of the loss of life in the case in question. Such a Penal Law would thus fail altogether to exercise its intended effect; for the threat of an Evil which is still uncertain—such as Death by a judicial sentence—could not overcome the fear of an Evil which is certain, as Drowning is in such circumstances. An act of violent self-preservation, then, ought, not to be considered as altogether beyond condemnation/ (inculpcibile); it is only to be adjudged as exempt from punishment (impunibilc). Yet this subjective condition of/ impunity, by a strange confusion of ideas, lias been) regarded by Jurists as equivalent to objective lawfulness.
The Dictum of the Right of Necessity is put in these terms, ‘Necessity has no Law’ (Neccssitas non habet legcvi). And yet there cannot be a necessity that could make what is wrong lawful.
It is apparent, then, that in judgments relating both to ‘Equity’ and ‘the Right of Necessity/ the Equivocations involved arise from an interchange of the objective andl/i7’ v, subjective grounds that enter into the application of the) Principles of Right, when viewed respectively by Reason or by a Judicial Tribunal. What one may have gooc grounds for recognising as Right in itself, may not find \ confirmation in a Court of Justice; and what he must consider to be wrong in itself, may obtain recognition in such a Court. And the reason of this is, that the conception of Right is not taken in the two cases in one the same sense.