The Philosophy of Law: Division of the Science of Right, B: Universal Division of Rights
I. Natural Right and Positive Right.
The System of Rights, viewed as a scientific System of Doctrines, is divided into NATURAL RIGHT and POSITIVE RIGHT. Natural Right rests upon pure rational Principles a priori; Positive or Statutory Right is what proceeds from the Will of a Legislator.
II. Innate Right and Acquired Right.
The System of Rights may again be regarded in refer ence to the implied Powers of dealing morally with others as bound by Obligations, that is, as furnishing a legal Title of action in relation to them. Thus viewed, the System is divided into INNATE RIGHT and ACQUIRED RIGHT. Innate Right is that Right which belongs to every one by Nature, independent of all juridical acts of experience. ACQUIRED RIGHT is that Right which is founded upon such juridical acts.
Innate Right may also be called the ‘Internal Mine and Thine’ (Mcum vel Tuum internum); for External Right must always be acquired.
\ There is only one Innate Right, the Birthright of Freedom.
FREEDOM is Independence of the compulsory Will of another; and in so far as it can co-exist with the Free dom of all according to a universal Law, it is the one sole original, inborn Right belonging to every man in virtue of his Humanity. There is, indeed, an innate EQUALITY belonging to every man which consists in his Right to be independent of being bound by others to anything more than that to which he may also reciprocally bind them. It is, consequently, the inborn quality of every man in virtue of which he ought to be his own master by Right (sui juris). There is, also, the natural I quality of JUSTNESS attributable to a man as naturally of unimpeachable Right (justi), because he has done no Wrong to any one prior to his own juridical actions. And j further, there is also the innate Right of COMMON ACTION on the part of every man so that he may do towards others what does not infringe their Rights or take away mything that is theirs unless they are willing to appro-such as merely to communicate thought to arrate anything, or to promise something whether truly honestly, or untruly and dishonestly (veriloquium siloquium), for it rests entirely upon these others 3ther they will believe or trust in it or not.1 But all ights or Titles are already included in the Principle of Innate FREEDOM, and are not really distinguished from it, even as dividing members under a higher species of Right.
The reason why sjiichaJJiyision into separate Rights has been introduced into the System of Natural Right viewed as including all that is innate, was not without a purpose. Its__object was to enable proof to be more readily put forward in case of any controversy arising about an Acquired Right, and questions emerging either with reference to a fact that might be in doubt, or, if that were established, in reference to a Right under dispute. For the party repudiating an obligation, and on whom the burden of proof (onus probandi) might be incumbent, could thus methodically refer to his Innate Right of Freedom as specified under various relations in detail, and could therefore found upon them equally as different Titles of Right.
In the relation of Innate Right, and consequently of the Internal ‘Mine’ and ‘Thine,’ there is therefore noW Rights, but only ONE RIGHT. And, accordingly, this highest Division of Rights into Innate and Acquired, which evidently consists of two members extremely unequal in their contents, is properly placed in the Introduction; and the subdivisions of the Science of Right may be referred in detail to the External Mine and Thine.
is his (falxiloquium dolosum). This distinction of conceptions so closely allied is not without foundation; because on the occasion of a simple statement of one’s thoughts, it is always free for another to take them as he may; and yet the resulting repute that such a one is a man whose word cannot be trusted, comes so close to the opprobrium of directly calling him a Liar, that the boundary-line separating what in such a case belongs to Jurisprudence and what is special to Ethics, can hardly be otherwise drawn.