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Faculty Scholarship Series
Yale Law School Faculty Scholarship
1-1-1924
Rights and Duties
Arthur Corbin
Yale Law School
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Corbin, Arthur, "Rights and Duties" (1924). Faculty Scholarship Series. Paper 2932.
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RIGHTS AND
AND DUTIES*
DUTIES*
RIGHTS
ARTHUR L. CoRmN
CoRBIN
ARTHuR
"We
"We hold
hold these
these truths
troths to
to be
be self-evident:
self-evident: that
that all
all men
men are
are created
created
equal and are endowed
endowed by their
their Creator
Creator with
with certain
certain inalienable
inalienable rights."
equal
This statement, in
in spite
spite of literal inaccuracy
inaccuracy in its every
every phrase, served
served
This
expressed an aspiration, and
and
the purpose
purpose for which
which itit was written. ItIt expressed
the
it was a fighting
fighting slogan.
slogan. In
In order
order that
that slogans may serve
serve their
their purpose,
it
it is
is necessary
necessary that they shall
shall arouse strong,
strong, emotional
emotional belief,
belief, but itit is
is
it
necessary that
that they shall be
be literally accurate.
accurate.
not at all necessary
each human
human being's
being's time
time on earth
earth is spent in
in declaimdeclaimA large
large part of each
A
about his "rights," asserting
asserting their existence,
existence, complaining of
of their
their
ing about
or future, vested
vested or contingent,
violation, describing
describing them as present
present or
violation,
absolute or conditional,
conditional, perfect
perfect or inchoate, alienable
alienable or inalienable,
inalienable,
absolute
mpersonam,
per-sollam, primary or secondary,
secondary, moral
in rem or in
legal or equitable, in
or
or jural (legal),
natural or artificial, human
human or
(legal), inherent or acquired, natural
divine. No doubt still other
other adjectives are
are available. Each
Each one
expresses some idea, but not always
always the same
same idea even when
when used
expresses
twice by one
one and
and the same person. They all need definition in
in the
twice
interest of
of understanding
understanding and peace.
peace.
interest
In his table of correlatives,
correlatives, Hohfeld
Hohfeld set "right" over
over against
against "duty"
"duty"
In
correlative. This had
had been
been done
done numberless times by
as its necessary correlative.
other men. He also carefully
carefully distinguished itit from the concepts
expressed in his table by the terms "privilege," "power," and "immu"immuexpressed
seems
beyond
his
work
of
the
value
writer,
To
the
present
nity."l
va,lue
seems beyond
nity."'
convenience of his classification
classification is convincconvincquestion and the practical convenience
classification and the correlating. However,_
However, the adoption
adoption of Hohfeld's classification
of
"duty" do not complete the work of
"right" and "duty"
ing of the terms "right"
classification
classification and definition. z2
only. An
be analytical
article is
intended to
The present
present article
** The
is intended
to be
analytical and
and descriptive
descriptive only.
An
of societal
attempt will be made to show what sorts .of
societal action
action or inaction justify
"duty," but not what motives
us in using the terms "right" and "duty,"
motives and causes
underlie
explanation of the latter will be
underlie this societal action
action or inaction. The explanation
evolutionary process
pr.ocess
found in an understanding
understanding of the mores of a people and the evolutionary
of their development.
1'Hohfeld's
Hohfeld's work has been published by the Yale Press in a volume entitled
It is also found under the same name
Conceptions (1923).
Legal Conceptions
Fundamental Legal
Fundamental
(1923). It
name
71o.
(1917) 26 ibid.
ibid. 710.
JOURNAL, 16;
i6; (1917)
(1913) 23 YALE LAw
LAW JOURNAL,
in (1913)
knows, has many meanings. The Century
'The
• The word "right," as everyone kn.ows,
Dictionary recognizes at least twenty as an adjective and ten as a noun. To a
"duty." Nevertheless, the use of "right"
less extent this is also true of the word "duty."
as correlative to "duty" marks a very great limitation, one that is difficult for
the human tongue, accustomed
accustomed to aa confusion of some twenty meanings, to
It would be possible to abandon the word to its very loose
observe strictly. It
significance. Such inclusive terms, of variable connotation, render
and shifting
shifting significance.
F5oI]
fS01]
HeinOnline -- 33 Yale L.J. 501 1923-1924
YALE LAW
LAW JOURNAL
JOURNAL
YALE
502
As aa working
working definition,
definition, let
let us
us suggest
suggest that
that aa jural
jural right
right is
is aa relation
relation
As
existing between
between two
two persons
persons when
when society
society commands
commands that
that the
the second
second
existing
or to
to forforof these
these two
two shall
shall conduct
conduct himself
himself in
in aa certain
certain way
way (to
(to act
act or
of
bear) for
for the
the benefit
benefit of
of the
the first.
first. A "right"
"right" exists
exists when
when its
its possessor
possessor
bear)
in controlling
controlling the
the
has the
the aid
aid of
of some
some organized
organized governmental
governmental society
society in
has
conduct of
of another
another person.
person. The
The first
first isis said
said to
to have
have aa "right"
"right" against
against
conduct
second and
and the
the latter
latter aa "duty"
"duty" to
to the first.
first.
.
the second
In this
this definition
definition the
the term
term "society"
"society" may
may be
be troublesome.
troublesome. Some
Some
In
3
would prefer
prefer "state"
"state" to "society."
"society."3
We need
need not
not here
here attempt
attempt aa final
We
would
definitions; but
but in
in using
using the term "society"
"society" or
or
choice among
among terms- or definitions;
choice
personified
any
denote
the
word
"state"
the
writer
does
not
mean
to
denote
any
personified
to
not mean
the word "state" the writer
sovereign unit. If
If such
such a unit
unit exists
exists its "command"
"command" and
and its punitive
punitive
sovereign
44
in this
defined
and
As
and
defined
sanctions
create
jural
rights
and
duties.
As
used
duties.
sanctions create jural rights and
of
persons,
article,
jural
rights
and
duties
require
only
some
group
of
persons,
group
only
some
require
article, jural rights and
organized for governmental
governmental purposes,
purposes, and
and represented
represented by agents
agents whose
whose
organized
specific facts, for and
and against
against individual
individual persons,
persons, can be
be
reaction to specific
reaction
predicted with
wit~ reasonable
reasonable certainty.
certainty.
predicted
some
service, even
even though
though they also
also promote
promote uncertain
uncertain concepts
concepts and
and inaccurate
inaccurate
some service,
reasoning.
The less we
we realize
realize this
this uncertainty
uncertainty and inaccuracy,
inaccuracy, the more
more we
we
reasoning. The
cling to general expressions
expressions like
like "my
"my rights."
cling
Hohfeld, indeed,
indeed, considered
considered substituting
substituting the word
word clabit
clcUm for
for "right" as
as the
the
Hohfeld,
correlative of
"duty." The
The present
present writer
writer is not unwilling
unwilling to agree to
to this
this
of "duty."
correlative
substitution if
should be
be pressed
pressed by others,
others, although
although he believes that itit would
would
if itit should
substitution
tend to
to perpetuate
our habitual contentment
with uncertainty
uncertainty of concept and
contentment with
perpetuate our
tend
inaccuracy of
of results.
results. In
In the present
present article, "claim"
"claim" is not substituted for
for
inaccuracy
"right"; and
as will appear from repeated
"right";
and as
repeated definitions
definitions in the text, "right" is
is
"duty."
used in Hohfeld's
Hohfe1d's restricted
restricted sense as the correlative
correlative of
of "duty."
used
even personify
personify this
this conceptual
conceptual monad, asserting
asserting for itit an
an objecobjec"• Some
Some would even
tive reality,
reality, crowning its beloved head with "sovereignty,"
"sovereignty," endowing
endowing itit with
tive
juristic omnipotence
omnipotence and with all the other qualities of the most up-to-date
up-to-date
juristic
anthropomorphic
"pluralistic" conception would
would suit others
others better,
anthropomorphic deity. A "pluralistic"
dividing up the royal inheritance
inheritance among
among, many contesting monads, each dissatisfied
with
share and vigorously striving for an increase.
'
its share
with its
societal organizations of men, acting at times together
several societal
'• If
If there are several
and at times in competition, each with its own commands and sanctions, each
each
with its own enforcing
enforcing agents and procedure, then each will be creating a set
times
of rights and duties within its own chosen field. These last may at 'times
not." Both
directly conflict, one commanding "thou shalt,"
shalt," another "thou
"thou shalt not"
are "law,"
overpowered the other. There have
"law," as long as one has not definitely overpowered
ju~istic history. Common Law and Equity
been examples of this in our own juristic
thus conflicted, and not even the resolution of King James I to back Lord Ellesconflict. The conflict between
mere
Lord Coke entirely quenched the conflict
against Lord
mere against
is still aa twilight zone
there is
State
State and Nation was ended by the Civil War; but there
individuals
of conflict that is capable of causing new convulsions. New groups of individuals
commanding and sanctioning.
power, commanding
are forming
and organizing, competing for power,
forming and
insofar
Insofar as they can maintain themselves
themselves in the physical struggle, and insofar
said that they
predicted, it may logically be said
action can be predicted,
as their
"societal" action
their "societal"
are
"duties." Differences in degree are not negligible,
are creating "rights" and "duties."
term
or the
the term
"law" or
however,
be inadvisable
inadvisable to dignify with the term "law"
and it may be
however, and
and sanctions
sanctions of every association of lunatics or every criminal
the rules and
"rights" the
"rights"
, Mafia.
Mafia.
'..-,'
.
'.'~
.
. -.~
';"c,~>:--:
'- ~.- ::~
-' _
~.-
...... '-
- ."";,- .-;. .~--; :--:,.-'~~
);".
--,
HeinOnline -- 33 Yale L.J. 502 1923-1924
DUTIES
RIGHTS AND DUTIES
RIGHTS
"relation" and "commands."
"commands." It
It does
Other troublesome terms are "relation"
right as
as a "relation."
"relation." What
What is aa "relation"?
"relation"?
not help much to describe aa right
It is not a physical thing,
thing, but it involves
involves physical relations of
of cause
cause ~nd
and
It
mean merely that because
because of parpareffect. In
In the
the present instance, we mean
effect.
predict certain detrimental consequences
consequences to B
B if
ticular facts we can predict
he does not conduct himself in the specified way, these consequences
(or more rarely, inaction) by a few individuals as the
being action (or
agents of society. Experience has led us to believe that there is a
uniformity in human behavior such that we can construct rules thereof
consequences of facts with reasonable confidence.
and can predict consequenc~s
When we say that society "commands"
"commands" we do not mean that someone
\\Then
from a throne,
is shouting hortatory words at B from a housetop or fI:om
such an actual shout (as when the traffic policealthough there may be such
man says "stop"
"stop" or "move
"move on"). vVe
We mean generally no more than
that there is in some degree aa uniformity of societal action and that
unless B conducts himself in aa certain manner this societal action will
be detrimental
detrimental to B.
There are, however, various kinds of rights and they must be classified. The societal action detrimental to B may be impending
impending either
more or less immediately in time and with a greater or less degree of
of
certainty. Furthermore
Furthermore there are many different kinds of societal
consequences
It
consequences constituting
constituting the sanction or penalty for disobedience. It
is possible, therefore, to classify our "rights"
"rights" both in accordance with
the
the facts
facts determining the immediacy
immediacy and certainty
certainty of the penalty and
with the character
character assumed by that penalty. The degree of uncertainty
may be so great, or the penalty become so slight, that we cease to
describe the situation by the terms jural
jural right and duty.
duty: Here, as elsewhere, our most important
concerns
depend
upon
distinctions
important concerns depend
distinctions of degree.
The classifications
classifications attempted
by
means
of
the
adjective
modifiers
attempted
modifiers' mentioned
at
the
beginning
are
mainly
of
sort.
this
Some
consideration
tioned
Some consideration
will first be given to these common terms.
Divine rights.
rights. No
No recognition
recognition can
can be
be allowed to such a term as
Divine
"divine
right."
It
profits
little,
our
in
abysmal ignorance, to .trace
trace
"divine right." It
"rights" back to a first cause that is itself quite beyond any finite
"rights" back to a first cause that is itself quite beyond
imagination. Of
Of course,
course, it
is just
it is
just as easy to throw upon the Creator
Creator
imagination.
responsibility
for
our
legal
and
social system as for the physical uniresponsibility for
verse.
But that
is the
verse. But
that is
the only sense in which
which men are "endowed
"endowed by their
their
Creator"
sense men
men are endowed
endowed by their
their
Creator" with
with any rights; and in that sense
Creator
Creator with
with all
all of their
their rights without exception. We
We cannot
cannot find
some
divine while
others are not. Some are
some that
that are
are supernatural
supernatural or
or divine
while others
of
of more
more value
value than others and some are more nearly universal
universal than
others,
but the
generality of
the basis
basis of
of classification
classification is value and generality
of enjoyenjoyothers, but
ment, not divinity.
Natural
more need
"natural" rights
Natural rights.
rights. Not
Not much
much more
need be
be said of "natural"
than
of supernatural
or divine
rights. Probably
than of
supernatural or
divine rights.
Probably the terms
terms often
often express
the
prefer to
the word
word nature
the same
same idea.
idea. Some
Some persons
persons prefer
to use
use the
nature instead
instead
HeinOnline -- 33 Yale L.J. 503 1923-1924
YALE LAW
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JOURNAL
YALE
of God
God or
or Creator
Creator to
to express
express that
that which
which they
they do
do not
not understand.
understand. It
It
of
has
long
been
the custom,
custom, when
when aa limited
limited human
human intelligence
intelligence conceives
conceives
has long been the
of something
something that
that for
for the
the moment
moment seems
seems extremely
extremely desirable,
desirable, to
to describe
describe
of
it
by
such
terms
as
divine,
perfect, ideal,
ideal, natural.
natural. In
In the
the law,
law, the
the appeal
appeal
it by such terms as divine, perfect,
to "natural
"natural justice"
justice" had
had its
its day.
day. Perhaps
Perhaps the
the idea
idea originally
originally behind
behind
to
that term
term was
was justice
justice "in
"in aa state
state of
of nature,"
nature," as
as men
men were
were created
created before
before
that
the
fall,
in
the
good
old
golden
days.
That
day is
is past;
past; the
the "state
"state of
of
the fall, in the good old golden days. That day
nature" is'
is being
being forgotten;
forgotten; we
we are
are beginning
beginning to
to express
express our
our notions
notions
nature"
of what
what is
is desirable
desirable by
by new
new phrases
phrases (e.
(e. g.
g. "social
"social justice").
justice").
of
As
the
term
"natural
justice"
has
been
used
in the
the recent
recent past,
past,55 its
its
As the term "natural justice" has been used in
connotation
is
reasonably
close
to
that
of
the
newer
term
"social
connotation is reasonably close to
of the
"social
justice," although
although the
the latter
latter seems
seems to
to distinguish
distinguish more
more specifically
specifically
justice,"
between the
the individual
individual and
and the
the group. The
The assertion
assertion of
of "rights"
"rights" and
between
the
appeal
to
justice,
whether
"natural"
or
"social,"
no
doubt often
the appeal to justice, whether "natural" or "social,"
doubt
rest
upon
an
assumption
of
an
eternal
system
superior
to
the will
will of
of
rest upon an assumption of an eternal system superior to the
man
and
to
human
legislation.
If
such
a
system
exists,
it
is
as
yet
man and to human legislation. If such a system exists, it is as yet
beyond human
human knowledge.
knowledge. In invoking such
such a system as
as aa pasis
basis for
for
beyond
decision, we
we are
are merely
merely applying
applying our
our own
own social standards and the
the
decision,
mores of
of our
our own
own "chosen"
"chosen" people
people and asserting for
for them the quality ,
mores
of Universality
universality and
and perfection.
perfection. In fact they have no such quality. The
of
standards, the
the mores,
mores, and
and the
the justice
justice of yesterday are not those
those of
standards,
to-day. It
It is
is true
true that
that some
some standards
standards and
and some of the mores
mores are
to-day.
common to
to many
many peoples
peoples and
and perhaps
perhaps to
to the
the whole
whole period
period of recorded
recorded
common
history.
In
these
cases we
we can
can predict
for the
the future
future with some confipredict for
history. In these cases
dence. This
This merely
merely shows
shows aa variation
variation in
in degree,
however; and it
dence.
degree, however;
remains
true
that
for
most litigated
litigated questions
questions the
the past
past has no uniform
remains true that for most
Rex v.
v. Local
Local Government
Govwrnnent Board
[1914, C.
C. A.]
A.] Ii K.
B. 160,
i6o, there
•"In
In Re:>:
Board [1914,
K. B.
there was
was aa
statute providing
providing that
that the
the Local
Local Government
Government Board
Board "may
by rules
rules determine
"may by
determine
statute
the procedure
any appeal."
appeal." (19o9)
VII, c"
c., 44,
44, -sec.
the
procedure of
of any
(1909) 99 Edw.
Edw. VII,
-soc. 39. Buckley,
L.
J., said
said (p.
(p. 18S):
185): "Such
consistent with
with natural
justice.
"Such rules
rules must
must be
be rules
rules consistent
natural justice.
L. J.,
For instance,
Board could
not make
(i) that
the appellant
For
instance, the
the Board
could not
make aa rule,
rule, (I)
that neither
neither the
appellant
nor the
the local
orally or
writing or
in any
nor
local authority
authority should
should be
be heard
heard orally
or in
in writing
or in
any manner
manner
whatsoever;
nor
(2) that
that each
each should
be heard
heard but
the absence
absence of
of the
should be
but only
only in
in the
the
whatsoever; nor (2)
other;
(3) that
of the
the facts
alleged or
other; nor
nor (3)
that neither
neither should
should be
be informed
informed of
facts alleged
or arguments
arguments
advanced
all be
and all
be contrary
contrary to
to natural
natural justice."
justice."
advanced by
by the
the other.
other. These
These would
would each
each and
Hamilton,
referring to
to foreign
L. J.,
J., (in
(in aa dissenting
dissenting opinion)
opinion) referring
foreign judgments
judgments and
and
Hamilton, L.
the
"contrary to
natural justice,"
said (p.
i99) : "It
"It has
the expression
expression "contrary
to natural
justice," said
(p. 199):
has often
often been
been
pointed out
out that
that the
the expression
expression is
is sadly
sadly lacking
lacking in
in precision.
precision. At
At one
one time
time it
it was
was
pointed
regarded
as
setting
up
for
foreign
jurisdictions aa standard
standard of
of judicial
judicial correctcorrectregarded as setting up for foreign jurisdictions
ness
of our
our common-law
common-law Courts,
Courts, but
but times
times have
have changed.
changed. In
In
ness upon
upon the
the pattern
pattern of
Buchanan
v.
Rucker
(i8o7)
i
Buchanan v. Rucker (1807) I Camp.
Camp. 63,
63, 66,
66, Lord
Lord Ellenborough
Ellenborough at
at nisi
nisi prius
prius
declared
that the
the practice
practice of
of the
the Law
Law Courts
Courts of
of Tobago
Tobago to
to summon
summon aa defendant
defendant
declared that
who
was
out
of
the
jurisdiction
and
never
had
been within
within it,
it, by
by nailing
nailing the
the
who was out of the jurisdiction and never had been
writ
of the
the court-house
court-house 'is
'is contrary
contrary to
to the
the first
first principles
principles of
of reason
reason
writ on
on the
the door
door of
and
and justice
justice ....
•..• it
it is
is mala
mala praxis,
praxis, and
and cannot
cannot be
be sanctioned.'
sanctioned.' Nevertheless,
Nevertheless,
this
the circumstances
circumstances seems,
seems, II must
must
this weighty
weighty opinion,
opinion, which
which having
having regard
regard to
to the
say,
to be
be very
very temperately
temperately expressed,
expressed, was
was coldly
coldly dismissed
dismissed as
as 'declamation'
'declamation' by
by
say, to
the
the Court
Court of
of Queen's
Queen's Bench
Bench in
in Schibsby
Schibsby v.
v. Westenholz
Westenholz (i87o)
(1870) L.
L. R.
R. 66 Q.
Q. B.
B.
155,
ISS, i6o."
160."
HeinOnline -- 33 Yale L.J. 504 1923-1924
RIGHTS AND DUTIES
5°5
answer and the future will answer in its own good time and manner.
"Natural
"social justice"
"Natural justice"
justice" and -"social
justice" are merely the system of the
time and place, based upon the mores of the particular people
people involved,
as those mores
mores have developed and survived in the people's
people's rigorous
"natural justice"
ever-living
struggle for existence. In this sense, "natural
justice" is an ever-living
"rights ;" but it should be recognized
source of law and of "rights;"
recognized for what it
is-a complex system of human notions, variable with the people and
changeable with time. 55a
Inherent
"inherent"
Inherent rights.
rights. An appeal is still occasionally
occasionally made to "inherent"
rights."6 These are usually identical
"natural" and "divine";
"divine"; but
rights.
identical with "natural"
the term may also at times cariy
carry some crude, figurative notion of a
physical
"inherence."
Like "divine"
"divine" and "natural,"
"natural," the term
physical "inherence."
"inherent" has helped to make a good slogan. It
It is of no service to
"inherent"
classification and it renders
renders a disservice to understanding.
Moral
rights and ditties.
ditties. Much space has been devoted to explaining
explaining
Moral rights
between moral duty and legal
differences between
between morality and law, between
duty. Perhaps
Perhaps there is reason
reason to expect more violent disagreement
disagreement
here than with the previous
previous paragraphs. It
It may be observed first, however, that the distinctions between
between moral rights and legal rights are
identical with those between
between moral duties and legal duties, although
although the
latter are the terms more commonly discussed, and that the term "legal"
"legal"
means jural, or juristic, and does not involve different systems of law
It is believed
such as canon
canon law and civil law, common
common law and equity. It
believed
that there is no exact and well-defined line separating the moral and the
legal fields. When we say that A has a right against B and that B
owes the correlative duty to A, we mean that the other individuals
individuals with
whom A and B are associated, whether
whether the individuals are more or less
numerous and the territory occupied greater or less in extent, require
B to act in a certain
to
certain manner for A's benefit and will themselves act to
'a
Thus, in (1923)
(1923) 39 LAW
REv. 518,
5,8, Sir Frederick
"The
""Thus,
LAW Q. REV.
Frederick Pollock writes: "The
law of nature
nature is not a chaos
chaos of individual
individual opinions but a tradition of universal
reason confirmed
"Natural justice,
confirmed by the general
general custom
custom of civilized
civilized mankind."
mankind." "Natural
founded in reason
reason and verified by the usage of just men, is recognized
recognized and applied
applied
by judicial authority no less than the rules of international
international law, which
which ultimately
ultimately
"individual opinions"
opinions" often agree,
rest on the same ground."
ground." As indicated
indicated above, "individual
"tradition" that easily leads us into the false notion of "universal
"universal
and there is a "tradition"
reason." Every people is easily convinced,
verification is by
reason."
convinced, inasmuch
inasmuch as the verification
by
"civilized
and by
by "just
"just men,"
men," and
and those
those terms just describe
describe us.
"civilized mankind"
mankind" and
to
"The right to
7o, where the court says: "The
(1853) 3 Calif. 70,
See Surocco
Surocco v. Geary
Geary (1853)
destroy property, to prevent
prevent the spread
spread of a conflagration, has been traced to the
highest law of necessity, and the natural rights of man, independent of society
society or
or
adopts-the
civil government
government .
. •. . .. The common
common law adoptsthe principles of the natural
law . •..
•.."
It is
"The so-called right to hold office is not a natural or inherent
inherent right. It
•"The
If there
a privilege
privilege which arises from the organization
organization of our civil society. If
there is
guaranteeing the privilege, then the people,
nothing in our fundamental law guaranteeing
Crampton v.
away." Crampton
through their official agency, the Legislature, may take it away."
36o, 362.
'O'Mara (1923,
'a'Mara
(1923, Ind.) 139 N. E. 360,
HeinOnline -- 33 Yale L.J. 505 1923-1924
506
YALE
YALE LAW
LAW JOURNAL
JOURNAL
the detriment
detriment of
of BB ifif he
he does
does not
not act
act as
as required.
required. This
This isis the'
the' case
case
the
whether we
we describe
describe A's
A's right
right and
and B's
B's duty
duty as
as moral
moral or
or as
as legal.
legal. The
The
whether
difference lies
lies in
in the
the form
form that
that the
the detrimental
detrimental'action
action takes
takes in
in case
case B
B
difference
disregards the
the requirement;
requirement; itit lies
lies in
in the
the "sanction"
"sanction" and
and only
only in
in the
the
disregards
"sanction."
"sanction." IfIf itit consists
consists of
of action
action in
in accordance
accordance with
with some
some rule
rule of
of
general application
application by
by the
the executive
executive or
or judicial
judicial representatives
representatives of
of an
an
general
organized governmental
governmental society,
society, the
the right
right and
and duty
duty being
being enforced
enforced are
are
organized
recognized as
as jural.
jural. If
If the
the action
action detrimental
detrimental to
to B
B isis solely
solely by
by indiindirecognized
viduals who
who are
are not
not representatives
representatives of
of such
such aa society,
society, the
the right
right and
and duty,
duty,
viduals
if any,
any, are
are moral.
moral. ItIt may
may be
be difficult
difficult at
at times
times to
to determine
determine whether
whether an
an
if
individual is
is acting
acting as
as an
an official
official representative
representative of
of society. We
We shall
shall
individual
consider below
below some
some of
of the
the various
various kinds
kinds of
of sanctions,
sanctions, of
of detrimental
detrimental
consider
action by
by our
our fellow men,
men, and
and shall
shall express
express an opinion
opinion as to
to which
which ones
ones
action
justify the
the use
use of
of the
the term
term moral
moral right
right and
and which
which the
the term
term legal
legal right.
right.
justify
Equitable rights.
rights. Juristic
Juristic rights
rights have
have been
been very
very generally
generally divided
divided
Equitable
into two
two classes
classes known
known as
as legal
legal and equitable.
equitable. It
It is
is not
not easy
easy to find
find
into
any attempt
attempt at exact
exact definitions
definitions of
of these.
these. It
It is probable
probable that,
that, as the
any
terms are
are used,
used, exact
exact definition
definition is impossible.
impossible. The
The classification
classification arose
arose
terms
out of the
the fact
fact that
that the law
law of England
England came
came to
to be
be determined
determined in its
major part by a dual
dual system of courts, by the
the Lord
Lord Chief
Chief Justice
Justice on the
major
one hand
hand and the Lord Chancellor
Chancellor on the other, the
the latter
latter supplementing
supplementing
and modifying
modifying the work of the
the former. The
The Chief
Chief Justice's
(not
Justice's court (not
and
meaning literally that it was one court)
court) was
was the
the earlier
earli~r in time, and its .
great work was the unification
unification of English
English law, the gathering together
the mass of varying
varying rules applied
applied by local courts and courts
courts of
of .
of the
jurisdiction and
and welding
welding them into a common
common system. Thus
special jurisdiction
known as the common law of
of
the law of this great court came to be known
England. Thus the earlier law of various tribes, like the Saxon law
and the
the, Dane,
nothing but historical sources;
sources; the local
local law
Dane law, became nothing
forgotten;
of the barons, the sheriffs, and the cities was merged and forgotten;
and even the law applicable to special classes
classes of persons, like the law
law
of the merchants, became eventually a part of the common
common system.
court such as Bracton,
After centuries of work by judges of the king's c,ourt
Coke, and Mansfield, the "law"
"law" of England was understood to be the
system applied by the King's Bench and Common Bench. The adjective "legal"
"legal rights" meant
"law," and "legal
"legal" went naturally with the "law,"
the rights of Englishmen under the common law. The unification was
the
never complete,
complete, however, not even being fully accomplished by the
Judicature Act
of
I873.
Prior
to
that
statute
there
remained
the
Courts
to
1873.
Act
of Admiralty, the Church, and the
Of
the Chancery, and perhaps others. Of
all these, only the Court
law that
that applied
system of law
had aa system
of Chancery had
Court of
competitor
so
as aa successful competitor
of men as
minds of
as to
to appear in the minds
so generally as
with the great
the politiof the
Benches. Because of
two Benches.
great common law of the two
the
cal
Chancellors and because of the character of the
influence of the Chancellors
cal influence
law
the common
common law
of equity
equity with the
system
system they developed, the competition of
substanwas
two Benches were substanthe two
the rules of the
of the
Many of
was successful.
successful. Many
HeinOnline -- 33 Yale L.J. 506 1923-1924
RIGHTS AND
AND DUTIES
DUTIES
RIGHTS
5°7
tially nullified
nullifiedby
by the
the Chancery,
Chancery, even
evenbefore
beforethat
that fact
fact was
was acknowledged
aCknowledged
tially
by the
the judges
judges themselves.
themselves. Duties
Duties were
were imposed
imposed on
on individuals
individuals and
and
by
rights created
created in
in others
others where
where the
the common
common law
law had
had left
left privileges
privileges and
and
rights
7
no rights.
rights.'1
In other
other cases
cases individuals
individuals were
were given
given privileges
privileges of
of action
action
In
no
orinaction
inaction where
where the
the common
common law
law enforced
enforced aa duty
duty to
to act
act or
or to
to forbear."
forbear. 8
or
Facts were
were given
given different
different operation,
operation, constituting
constituting causes
causes of
of action
action and
and
Facts
defences unknown
unknown to
to the
the Benches.
Benches. In
In spite
spite of
of its
its measurably
measurably successsuccessdefences
ful competition,
,competition, however,
however, the
the system
system of
of law
law applied
applied in
in the
the Chancery
Chancery
ful
was described
described as
as "equity"
"equity" and
and not
not as
as "the
"the law,"
law," many
many of
of its
its jural
jural
was
relations were
were called
called "equities,"
"equities," its
its rights
rights were
were "equitable
"equitable rights"
rights" as
as
relations
opposed to
to the
the "legal
"legal rights"
rights" of
of the
the common
common law,
law, its
its "titles"
"titles" were
were
opposed
"equitable
"equitable. titles"
titles" as
as opposed
opposed to
to "legal
"legal titles"
titles" recognized
recognized by
by the
the
"Benches.
Benches.
The jurisdiction
jurisdiction of
of the
the Chancellor
Chancellor was
was just
just as
as wide
wide territorially
territorially as
as
The
that of
of the
the Chief
Chief Justice.
Justice. The
The law
law of
of the
the Chancery
Chancery was
was as
as truly
truly deservr
deservi
that
indeed,
Benches;
ing
of
the
adjective
"common"
as
was
that
of
the
Benches;
indeed,
ing of the adjective "common" as was that of the
when
name
one
the
both
systems
are
no
doubt
generally
included
under
the
one
name
when
both systems are no doubt generally included under
law
civil
the
the
common
law
as
a
great
system
is
being
compared
with
the
civil
law
with
the common law as great system is being compared
of
Rome.
of Rome.
It should
should be
be remembered
remembered that the
the law
law of
of England
England was
was never
never in
in fact
fact
It
the
so
before
been
a
dual
system
of
law
and
equity.
It
could
not
have
been
before
the
have
not
It could
law and
system
a
was
development
of
the
Chancery
as
a
court;
and
even
thereafter
there
there
thereafter
even
court; and
Chancery
development
a remnant
remnant of
of jurisdiction
jurisdiction left
left to the
the Admiralty
Admiralty and to the Church, each
each
remembe
with
its
own
sanctions
and
its
own
procedure.
It
should
be
rememshould
It
own procedure.
sanctions and
with its
bered further that while there has been the constant tendency
tendency toward
bered
unification
by
the
welding
of
and
legislative and
both
through
equity
and
law
unification
judicial action, there has been an even greater
greater development
development toward
complexity
conflict due to the multiplication of independent
political
independent political
complexity and conflict
jurisdictions. Canadian law is not that of England, the law of Ontario
is
that of Quebec, the law of Illinois is not that of New York.
not that
is not
Thus,
while
the line between
between law and equity has become blurred and is
Thus,
disappearing, distinctions between
between Illinois rights and New York rights
have been increasing.
Rights
heretofore, the existence
community. As said heretofore,
Rights vary with the cammttnity.
of
a
right
in
A
against
B
and
of
a
correlative
duty
in B to A means that
of a right in A
the organized fellow citizens of A
B will act against B for A's
A and B
fellow citizens
benefit unless B conducts himself as required. These fellow
• For
of land was forbidden by the
conduct by an occupant of
For example, certain conduct
Many
Chancery as
Bench. Many
the King's Bench.
by the
not forbidden by
although not
being waste, although
as being
to
unknown to
duties were enforced
were unknown
that were
former that
the former
by the
trustee by
against aa trustee
enforced against
the'latter.
the. latter.
This was
was true
true in
in all
all cases
cases where
where certain
certain facts,
facts, such
such as
as fraud
fraud or
or mistake,
mistake,
S' This
The
law. The
constituted
common law.
at common
defense at
no defense
were no
but were
defense but
"equitable" defense
an "equitable"
constituted an
the
defendant; the
the defendant;
King's
against the
penalties against
its penalties
enforce its
to enforce
ready to
was ready
Bench was
King's Bench
Chancellor
eventuuntil eventuenforcement until
such enforcement
for such
asking for
from asking
plaintiff from
the plaintiff
prevented the
Chancellor prevented
negligible.
ally
practically negligible.
became practically
penalties became
common-law penalties
the common-law
ally the
HeinOnline -- 33 Yale L.J. 507 1923-1924
5°8
YALE LAW
LAW JOURNAL
YALE
JOURNAL
may be more or less numerous and the territory occupied greater
greater or less
"right" does not have existence
in extent. A "right"
existence as a thing, independently of human individuals and a social organization.
organization. We cannot say
once
once a right always a right, or here a right everywhere
everywhere a right. Certain
facts existing or events occurring in Ohio may be sufficient
sufficient to cause the
courts
courts of Ohio, as the agents
agents of the people of Ohio, to act against B for
the sake of A, without being sufficient to cause
cause the courts of Iowa to
take any action whatever.
whatever. In such case, A has an Ohio right against
against B.
B.
but not an Iowa right. The relations
relations of Ohio with Iowa under
under our
our
constitution,
constitution, however, are such that usually the same facts will be
legally operative
operative in both states. A then has a right against B in both
Ohio and Iowa. 99 The same may be true in the case of two wholly
wholly
independent states, such as France and England. This applies not
not
independent
only to rights, but to other jural relations, to privileges, powers, and
immunities, and to complex
combinations of them like the ownership
complex combinations
ownership of
of
land or the status of marriage. A and B may be husband
in
husband and wife in
Ohio or in France, and be utterly
divorced
and
unmarried
utterly divorced
unmarried in Iowa or
or
England. It
It all depends, and it depends wholly, upon what the individuals of the organized
organized community
community actually will do and hold themselves
out as ready to do in the particular
particular case. The sanctions and the proceproce'Even
recognizes certain
• Even though each of the two States or nations recognizes
certain operative
facts as creating a right in A against B, that right is not necessarily
necessarily the same
right in
in both
both places-that
right
places-that is, the performance
performance required by B may not be identical.
Also, both
both the
the remedies
remedies available
available and the procedure
Also,
procedure that is prescribed
prescribed may be
be
Guinness v. Miller
Miller (1923,
(1923, S. D. N. Y.)
Y.) 291 Fed. 769, a
entirely different. In Guinness
citizen of
sued to
collect from a German on a stated account
citizen
of the
the United
United States
States sued
to collect
account
payable in
in marks.
marks. Learned
payable
Learned Hand, D.
D. J., said: "The sole question is whether
whether
be for the value in dollars of
the decree should
should be
.of the marks when the account
account
was
was stated,
stated, December
December 16, 1917,
1917, or for their value as of the date of the decree.
In
In the
the case of tort committed
committed in a foreign jurisdiction
jurisdiction it is pretty
pretty clear that the
judgment
judgment should be based on the exchange at the time of the loss inflicted.
inflicted. In
such cases we are familiar with the idea that his wrong
wr.ong imposes on the tortfeasor
feasor an
an obligation
obligation to indemnify
indemnify his victim in money. A court of the sovereign
where the tort occurs enforces
enforces this obligation in the money of that sovereign.
regardless of
.of its change
change in value, merely because
because those are the terms in which
it
cast. When
it is
is cast.
When a court
court takes cognizance
cognizance of a tort committed
committed elsewhere, it is
indeed sometimes
sometimes said
indeed
said that
that it enforces
enforces the obligation arising under the law where
true, it would seem to follow that the obligathe tort arises. And, if this were true,
obligation sh.ould
should be
discharged in the money of the sovereign
sovereign in whose territory
tion
be discharged
territory the
tort occurred, and that the proper rule would
would be to adopt the rate of exchange
as of the time of the judgment. However,
but
as
However, no court can enforce any law but
that of
of its
its own
own sovereign,
sovereign, and, when a suitor comes
that
comes to a jurisdiction foreign
to
the place
place of
the tort,
tort, he
can only invoke an obligation
to the
of the
he can
obligation recognized
rec.ognized by that
sovereign."
sovereign."
The court
held that
that the
American duty was to pay the value of the
The
court held
the debtor's
debtor's American
promised
dollars as
as of
December 16,
16, 1917;
1917; but the German
promised marks
marks in
in dollars
.of December
German duty could
be
discharged by
by paying
paying in
German marks
marks of
of the
the sort current
be discharged
in German
current in 1923. The
same facts
create these
but the
duties are not the same. The court truly
same
facts create
these duties,
duties, but
the duties
trul}'
said: "Each
"Each court
court is
enforcing aa different
different obligation,
obligation, imposed by a different
different
said:
is enforcing
sovereign, necessarily
necessarily defined in terms of its own money."
sovereign,
HeinOnline -- 33 Yale L.J. 508 1923-1924
RIGHTS AND DUTIES
dure in the two communities may be very different, just as they were in
the case of the Chancellor
Chancellor and the Chief Justice. Even if the sanctions
sanctions
are identical,
accompanying jural relations may not be so.
identical, some of the accompanying
Property
rights. The distinctions between
Property rights.
between rights in
in rem and rights
upon
in personam
personam are no more certain and no more generally agreed
agreed upon
"Property" rights are
than are the distinctions
distinctions already discussed. "Property"
among the rights said to be "in rem";
rem"; contract rights among those "in
"in
personam."
Nevertheless,
a
contract
"property."
personam." Nevertheless, contract right is also said to be "property."
Such a classification
classification is clearly
clearly a rough one, with a blurred
blurred boundary
between,
between, and it fails to be of service
service in many an emergency. Sometimes we think clearly and specifically of the comparatively
comparatively simple jural
relations between two persons, A and B. What will society
society do for A
against B alone?
alone? At other times we think loosely and generally of the
A- and an indefinite number of other
complex jural relations between A
other
persons
against
persons not specifically
specifically identified.'
identified.100 What will society do for A against
whom it may concern? In either case, however, when
when the societal action
occurs
If A "owns"
"owns" land, with
occurs it will affect specific individuals.
individuals. If
rights "in
"in rem,"
rem/' he has a right against B that B shall not trespass, as
well as similar rights against others. B is under a duty to A not to
to
trespass. A's right against
against B is just as personal
personal as it would be if B had
contracted
person
contracted not to trespass, and as it would be if B were the only person
between the
under such a duty. There are very important
important differences
differences between
procedure by which property
procedure
property rights and other rights "in ren"
rem" can be
personam"; but in
affected and the procedure for affecting rights "in personam";
both kinds of rights alike there is the command
command of society to an individual with threat of societal action against him for A's benefit. Even
proceeding "against a
where procedure
procedure is "in rem," as in an admiralty proceeding
ship," it is the jural relations of individuals
ship,"
individuals that are being affected.
The ship may be sold and title given to a buyer. The owner of the ship
formerly had a right against B that the latter should not trespass. Now
he has that right no longer. The same is true of rights that the owner
owner
had against other persons. We describe the total by saying that the
extinguished.1
owner's "title" is gone and his rights "in rem" are extinguishedP
" See Hohfeld, Fundamental Legal Conceptions, supra note i,also found in
10 See Rohfeld, Fundamental Legal Conceptions, supra note I, also found in
(1917)
26 YALE
(1920) 68 U. PA.
(1917) 26
YALE LAW
LAW JOuRNAL,
JOURNAL, 710; Kocourek, Rights in Rem
Rem (1920)
L. REv. 322.
When a contract
contract right is said to be "property,"
"pr~perty," this does not mean that the concontract right is itself a "property right." The word
"property" is then being used in
word "property"
the sense of "subject matter" or res.
res, a horse
res. As such a res,
hors.e is "property";
"property"; but
but
a horse is not a "property right."
right." The value of the contract
contract right to its holder is
protected by, the creation of additional rights against innumerable and unidentified
unidentified
protected
third persons that they shall not interfere
interfere with performance. These are the
"property"
that one
has in
in his
his "contract."
"contract."
one has
"property" that
"It
achievement if people
11
It would be an extremely useful social achievement
people could be made
to understand
personal as
"property" rights (rights
(rights in rem) are just
just as personal
understand that "property"
are contract rights and other rights in personam.
personam. In the Century Dictionary, a
right in rem is defined thus: "the
between a person·
person. and a thing
"the legal relation between
HeinOnline -- 33 Yale L.J. 509 1923-1924
510
YALE LAW
LAW JOURNAL
JOURNAL
YALE
Inalienable rights.
rights. When
When aa right
right isis said
said to
to be
be "alienable,"
"alienable," the
the
Inalienable
meaning isis usually
usuq.lly the
the same
same as
as that
that expressed
expressed by
by assignable.
assignable. This
This
meaning
meaning isis that
that the
the holder
holder of
of the
the right
right has
has also
also a-power
a·power of
of substituting
substituting
meaning
of
extinguishing
his
own
right
and creating
creating
another
person
in
his
place,
another person in his place, of extinguishing his own right and
and
a
like
one'
in
the
person
substituted.
Practically
every
contract
and
contract
a like one in the person substituted. Practically every
may
right
has
come
to
be
alienable
in
this
sense.
"Alienable"
may
property
"Alienable"
property right has come to be alienable in this sense.
also be
be used
used to
to mean
mean that
that the
the holder
holder of
of the
the right
right has
has the
the power
power to
to
also
a
power
extinguish
it
without
any
substitution
of
another
holder.
Such
a
power
Such
holder.
extinguish it without any substitution of another
of his
his debtor.
debtor. There
There
is exercised
exercised when
when aa creditor
creditor executes
executes aa discharge
discharge of
is
are
some
rights
that
are
not
alienable
in
either
of
the
foregoing
senses.
senses.
foregoing
the
of
are some rights that are not alienable in either
such as
as the
the right
right not
not to
to be
be stabbed
stabbed with
with felonious
felonious intent
intent and
and the
the right
right
such
prevailing
not
to
be
robbed,
the
inalienability
in
such
cases
resting
on
prevailing
on
resting
cases
such
in
not to be robbed, the inalienability
notions of
of public
public policy.
policy. "Inalienable"
"Inalienable" may
may also
also be
be used
used in
in aa third
third sense,
sense,
notions
than
other
that
the
power
of
extinguishment
does
not
exist
in
persons
other
than
persons
in
not
exist
does
that the power of extinguishment
with
exists
often
the
holder
of
the
right.
Such
a'
power
of
alienation
often
exists
with
of
alienatioi
power
a:
Such
the holder of the right.
of the
the holder
holder of
of the
the right, and
and sometimes
sometimes without
without his
his assent.
the assent
assent of
the
conThus,
power
to
discharge
often
intentionally
intentionally
conoften
is
discharge
or
to
to
assign
power
the
Thus,
If one steals
steals my
my money
money II still
still have
have property
property
upon an agent. If
ferred upon
rights, and
and yet the
the thief has power
power to extinguish
extinguish· them
them by
by paying
paying the
the
rights,
money to an
an innocent
innocent taker for value. In addition
addition to this, every
every right
right
money
without exception
exception can be extinguished
extinguished totally by the withdrawal
withdrawal of the
without
"right" is used
used as defined
defined herein,
herein, connotconnotsocietal sanction.
sanction. If
If the term "right"
societal
nothing but a societal
societal command
command and
and sanction,
~anction, it is clear
clear that
that those
ing nothing
who issue
issue the command can countermand
countermand it and that those
those who threaten
who
1
threatP
disappears any supposedly
the penalty can
can withdraw
withdraw the threat.
Thus disappears
the
from
distinguished from
which he has a power, as distinguished
in which he has an interest or over which
personam, or the legal relation of a person to another
another who owes him
a right in personam,
declamation against the supposed
supposed failure to prefer
a duty." A great deal of declamation
"human" rights over "property" rights is based upon the same error that the
"human"
Century here makes. All jural relations are between persons, either as indiCentury
"Things" do not have rights, and there is no "legal
viduals or in groups. "Things"
of
relation between a person and a thing." "Thou shalt not steal" is a rule of
relation
just as
as
property; but its operation
operation is wholly for persons and against persons, just
in the case
A
"property" right of A
case of the rule "Thou shalt not kill." Every "property"
has its correlative
personam.
B and operates in personam.
correlative duty in some other person B
the evolution of
Like all other rights, property rights have been developed in the
humanity as a means of human survival
comfort, for the sake of "life, liberty.
survival in comfort,
"divine"
and the pursuit of happiness." It
It does not follow from this that they are "divine"
subject
and are subject
or unchangeable;
"human" and
follows that
that they are "human"
contrary it follows
the contrary
unchangeable; on the
are
to 'criticism and
criticism and unintelligent alteration 'are
and alteration. Emotional criticism
certain to result in the destruction of existing
existing wealth (subject matter) and the
Mossback
"human" misery and death. Mossback
non-Production
non-production of more, with resulting "human"
resistance to intelligent
result.
has the same result
intelligent alteration has
constitutional proviby constitutional
12
Some "rights"
accompanied by
States are accompanied
the United States
"rights" in
in the
'Some
In such
such cases
annul them. In
of power to annul
Congress of
sions
the States
States or Congress
depriving the
sions depriving
those
only by
by those
destroyed only
the right
right destroyed
and the
be withdrawn
withdrawn and
can be
societal sanction can
the
the societal
we
however, we
such amendment,
amendment, however,
By such
the constitution. By
to amend
amend the
the power
power to
having the
h3;ving
can
rights.
cherished rights.
of our most cherished
deprived of
can be
be deprived
"fundaso "funda-'
citizens have
have rights so
that citizens
been argued
argued that
It has
has been
rights. It
FUlldament"al
Fundamenialrights.
HeinOnline -- 33 Yale L.J. 510 1923-1924
RIGHTS AND DUTIES
DUTIES
RIGHTS
5 11
The
of happiness." The
pursuit of
and the pursuit
liberty, and
to life,
life, liberty,
"inalienable right to
"inalienable
-"inalientheir rights ,"inalienthought their
have thought
may have
Declaration may
writers
great Declaration
the great
writers of the
in some
some
Parliament because they believed in
or by Parliament
George or
by King
King George
able" by
able"
they
however, they
likely, however,
sanction. Very likely,
"divine" sanction.
or some
some "divine"
"natural" or
"natural"
for life
desire for
had aa violent desire
that they had
the world that
merely to tell the
meant merely
meant
stamp
without aa stamp
to pursue happiness without
the opportunity
oppoitunity to
and for
for the
and liberty
liberty and
and
tax, and that for these
these things
things they were
were ready to
to pledge
pledge their "sacred
tax,
honor," and even
even the "lives"
"lives" to
to which they
they asserted
asserted an inalienable
inalienable
honor,"
right.
right.
Future and
and conditional
conditional rights.
rights. The pairs of
of terms "future
"future or
or
Future
present," "vested
"vested or contingent,"
contingent," "absolute
"absolute or conditional,"
conditional," and
present,"
advantageously b~
be discussed together. As
or inchoate"
inchoate" can advantageously
"perfect or
the term
term is herein
herein used, a "right" in A against
against B means that'
that *"society"
"society"
commands B to
to act or
or to forbear, with some
some penalty for
for disobedience.
This command
command of "society"
"society" is caused
caused by the existence
existence of certain facts.
facts.
This
It
will
not
be
attempted
here
to
explain
the
meaning of causation,
causation, or
or
It will not
to
why out of
of the sum-total of antecedent facts we pick out
out aa few and
describe them as the "cause."
"cause." This process is universal, however;.
however;, and
it our system of law is based. These causal or "operative"
upon it
"operative" facts,
as they are called herein, may be numerous and they may not all
all have
as
occurred or as yet exist. Thus, in the case of a loan of money by A to
B, the delivery of the money to B and the promise of B to repay are
among the operative facts; but so also is the arrival of the date of
of
maturity. Prior to that date, but after the loan and the promise, we
say that B owes aa debt to A. "Society"
"Society" commands
commands B to pay A at
maturity.
Perhaps
relation
this
of
B
to
A
can
be described conveniently
conveniently
maturity.
as
a
future
duty.
Action
B
is
not
by
expected
at
once
and
his nonas a future duty.
action
will
not
be
penalized
in
any
way.
After
maturity,
however,
action will not be penalized
instant action
action is
expected and
and non-action
theneces-'
instant
is expected
non-action will be penalized
penalized if the-neces"future"
sary procedure
procedure is taken by A. This is the difference
difference between "future"
and
"present" rights.
and "present"
mental"
in character
by any
any societal
organization.
mental" in
character as
as to
to be
be beyond
beyond extinguishment
extinguishment by
societal organization.
This
amounts to
than an
to "God."
More often
has been
an appeal
appeal to
"God," More
often it
it has
been
This amounts
to no
no more
more than
asserted
"fundamental" that
asserted that
that certain
certain rights
rights are
are so
so "fundamental"
that the
the power
power of a State or of
of
Congress to
to "alienate"
"alienate" them
them has
has been
by the constitution
Congress
been taken
taken away
away by
constitution (especially
(especially by
by
the
some attempts
to enumerate
enumerate these
the fourteenth
fourteenth amendment).
amendment). There
There have
have been
been some
attempts to
these
"rights,"
including all
"rights," usually
usually including
all sorts
sorts of
of jural
jural relations
relations and factual interests. See
See
Corfield
Fed. Cas.
3230.
Corfield v.
1/. Coryell
Coryell (1825,
(1825, C.
C. C.
C. Pa.)
Pa.) 44 Wash.
Wash. C.
C. C.
C. 371,
371, 380,
380, Fed.
Cas. 3230.
Such
Such limitations
limitations on
on the
the powers
powers of
of legislative
legislative bodies
bodies are
are to
to be
be determined
determined by
by the
usual
constitutional interpretation.
usual methods
methods of
of constitutional
interpretation. They
They may
may exist;
exist; but
but it is to be
observed
See Slaughterobserved that
that the
the attempts
attempts to
to establish
establish them
them have
have usually
usually failed.
failed. See
SlaughterHouse
Cases
(1872,
U.
S.)
16
Wall.
36
(argument
of the
the mifnority);
minority); Spies v.
1/.
House Cases (1872, U. S.) 16 Wall. 36 (argument of
Illinois
8 Sup.
v. Dow
Illinois (887)
(1887) 123
123 U.
U. S.
S. 13I,
131,8
Sup. Ct.
Ct. 22;
22; Maxwell
Maxwell 1/.
Dow (I9OO)
(1900) 176
176 U.
U. S.
S.
581,
20 Sup.
494; McCray
581,20
Sup. Ct
Ct. 448,
448,494;
McCray v.
1/. U.
U. S.
S. (1904)
(1904) i95
195 U.
U. S.
S. 27,
27, 24
24 Sup.
Sup. Ct.
Ct. 769;
769;
Waugh
Waugh v.
1/. Board
Board of
of Trustees
Trustees (914)
(1914) 237
237 U.
U. S.
S. 589,
589, 37
37 Sup.
Sup. Ct.
Ct. 720.
720. The
The term
term
"fundamental"
"fundamental" merely
merely indicates
indicates the
the degree
degree of
of importance
importance with
with which
which the
the right
right so
so
described
described is
is regarded
regarded by
by those
those wishing
wishing to
to preserve
preserve or
or to
to possess
possess it.
it.
HeinOnline -- 33 Yale L.J. 511 1923-1924
.5125 12
YALE LAW
LAW JOURNAL
JOURNAL
YALE
All "present"
"present" rights
rights in
in the
the sense
sense above
above stated
stated are
are also
also "vested,"
"vested,"
All
8 and "perfect"
used.
"absolute"lS
"perfect"
as
those
terms
are
customarily
used.
customarily
as those terms are
"absolute"' and
of
"Future"
rights,
however,
are
not
necessarily
so.
In
the
creation
of aa
creation
the
In
"Future" rights, however, are not necessarily so.
of
moment
right
the
operative
facts
seldom
if
ever
occur
at
a
single
moment
of
single
a
at
right the operative facts seldom if ever occur
chronoseries
time;
they
are
instead
a
number
of
facts
occurring
in
a
series
chronoa
in
occurring
time; they are instead a number of facts
logically. IfIf all
all the
the operative
operative facts
facts exist
exist or
or have
have occurred
o~urred with
with the
the
logically.
"future"
of
the
passage
of
some
fixed
time,
the
right
is
a
"future"
exception
a
is
right
the
time,
exception of the passage of some fixed
right, but
but we
we do
do not
not refer
refer to
to itit as
as conditional,
conditional, contingent,
contingent, imperfect,
imperfect, or
or
right,
howIf,
inchoate.
Instead,
we
call
it
"vested"
and
"unconditional."
If,
how"unconditional."
and
inchoate. Instead, we call it "vested"
or some
some event
event other
other than
than the
the passage
passage of
of time
time must
must occur
occur
ever, some
some act
act or
ever,
and
right
right
and
before
society
will
regard
its
command
as
disobeyed,
then
the
the
then
disobeyed,
as
command
its
before society will regard
duty
are
not
only
"future"
but
are
also
"conditional."
"conditional."
also
are
but
duty are not only "future"
(1) A
A holds
holds B's
B's note
note for
for $ioo,
$100, payable
payable
Consider the
the following
following cases:
cases: (i)
Consider
assent,
mutual
upon
the
death
of
X.
The
operative
facts
constituting
mutual
assent,
constituting
facts
operative
The
X.
of
death
upon the
is
X
But
the
death
of
X
is also
also
consideration,
and
delivery
have
occurred.
of
death
the
But
occurred.
have
delivery
and
consideration,
a
condibe
to
a
necessary
event
and
it
has
not
yet
occurred.
It
is
said
to
be
a
condisaid
is
It
occurred.
yet
not
has
it
and
event
a necessary
A's presently
presently enforcible
enforcible right;
right; and
and meantime
meantime A's
A's relation precedent
precedent to
to A's
tion
that isis
tion to
to B
B isis called
called aa "conditional"
"conditional" right.
right. This
This condition
condition is one
one that
tion
certain to
to occur,
occur, but
but at
at an
an uncertain
uncertain time.
time. A's right
right would
would be
be described
described
certain
as "vested,"
"vested," if
if that term
term is to be
be used at
at all
all with
with respect
respect to
to rights
rights "in
"in
as
personam."
personam."
(2) A
A holds
holds B's note for $ioo,
$100, payable
payable upon
upon the
the arrival
arrival of
of the ship
(2)
"Titanic." Here
Here again, all the
the operative
operative facts except
except one
one have
"Titanic."
but that one is
is not
not certain
certain to
to occur
occur at any time. NevertheNevertheoccurred; but
occurred;
less we say that A has a "right" and describe
describe it as "conditional."
"conditional." Our
less
ordinary
legal terms do not
not differentiate
differentiate it from A's right
right in case
case
ordinary legal
number (i).
(1).
number
(3)
$100 upon the delivery
delivery
(3) A holds B's promise under seal to pay $ioo
certain goods by A. In this case the condition
condition is an act of A, the
of certain
holder of the "right."
never
(2), this condition may never
"right." As in number (2),
holder
III
"Absolute" is not always used as the opposite of "conditional."
"conditional" Thus the
" "Absolute"
to
Century
jdefines "Absolute rights" as "those
"those rights which belong to
Dictionary)defines
Century Dictionary
obligation
human beings as such;
such; those rights to which corresponds a negative obligation
of
threeof respect
respect on the part of every one. They are usually accounted to be three-"
the
....
of private property .•.•
and of
liberty, and
security, of personal liberty,
personal security,
the right of personal
They
corresponds
those to which corresponds
contradistinction to those
absolute in contradistinction
termed absolute
are termed
They are
from doing some act
.forbear from
the obligation of aa particular person to do or
or ·forbear
which
identical
this makes "absolute right" identical
substance, this
In substance,
relative." In
termed relative."
which are termed
"inalienmeans "inalienwith
Century cannot mean that "absolute" means
The Century
in rem." The
"right il~
with "right
able,"
of
rights of
their rights
daily have their
such" daily
as such"
beings as
"human beings
inasmuch as many "human
able," inasmuch
security,
and involuntarily.
voluntarily and
qxtinguished, both voluntarily
liberty, and property f;!xtinguished,
security, liberty,
other persons
Further, all
with other
relations with
they are relations
that they
in that
"relative," in
are "relative~!'
rights are
all rights
and
of facts.
the existence of
upon the
they are dependent upon
in that they
and in
inherent
are "inherent
that are
rights that
The
as "those
"those rights
rights as
Absolute rights
defines Absolute
Dictionary defines
Standard Dictionary
The Standard
life,
to life,
rights to
in
absolute rights
man's absolute
as man's
indefeasible; as
and indefeasible;
inalienable and
individual, inalienable
the individual,
in the
liberty,
of Equity
Equity
Survey of
Brief Survey
Langdell, A Brief
also Langdell,
See also
security." See
personal security."
and personal
liberty, and
753,
Jurisdiction
1869) 753,
ed. 1869)
(3d ed.
Jurisprudence(3dAustin, Jurisprudmce
55. Austin,
L. REv.
REv. 55.
HA.v. L.
(1887) 1I HAR\'.
Jurisdiction(1887)
has
rights."
"absolute rights."
term "absolute
of the
the term
criticism of
an excellent
excellent criticism
has an
HeinOnline -- 33 Yale L.J. 512 1923-1924
RIGHTS AND
AND DUTIES
DUTIES
RIGHTS
occur, and
and its
its occurrence
occurrence depends
depends upon
upon the
the will
will and
and physical
physical capacity
capacity ofof
occur,
A. Again
Again we
we say
say that
thatAA has
has aa "conditional"
"conditional" right."
right.14
A.
(4) A
A holds
holds B's
B's promise
promise under
under seal
seal toto pay
pay $ioo
$IOO if
if BB shall
shall himself
himself
(4)
(3) in
in all
all respects,
respects, except
except that
-that the
the
go to
to York.
York. This
This isis like
like number
number (3)
go
occurrence of
of the
the conditioning
conditioning fact
fact depends
depends upon
upon the
the will
will and
and physical
physical
occurrence
of B,
B, the
the promisor.
promisor. A's
A's relation
relation to
to BB isis here
here less
less advantageous
advantageous
capacityof
capacity
than in
in number
number (3)
(3) because
because BB isis legally
legally privileged
privileged not
not to
to go
go to
to York.
York.
than
The "condition"
"condition" depends
depends upon
upon B's
B's will
will and
and not
not upon
upon A's.
A's. NevertheNevertheThe
5
less, we
we still
still say
say that
that AA has
has aa "conditional"
"conditional" right.'
right.1.5
less,
(5) A
A holds
holds B's
B's promise
promise under
under seal
seal to
to pay
pay $ioo
$IOO upon
upon the
the death
death ofof
(5)
C, if
if aa premium
premium shall
shall be
be paid
paid by
by A
A and
and if
if B
B shall
shall continue
continue in
in business.
business.
C,
Here we
we have
have aa combination
combination of
of conditions.
conditions. Numberless
Numberless other
other combinacombinaHere
tions are
are possible.
possible. The
The same
same operative
operative facts
facts have
have occurred
occurred as
as in
in the
the
tions
The
preceding cases,
cases, but
but there
there are
are more
more operative
operative facts
facts still
still to occur.
occur. The
preceding
greater the
the number,
number, the
the greater
greater the
the uncertainty
uncertainty and
and the
the less
less the
the value
value of
of
greater
A's right.
right. There
There isis aa valid
valid "contract,"
"contract," however,
however, and
and A
A still
still is
is said
said
A's
16
to have
have a "conditional"
"conditional" right.
right.16
to
In the
the five cases
cases preceding,
preceding, we have
have assumed
assumed that
that the
the operative
operative facts
facts
In
necessary to
to what
what is
is called
called aa valid
valid "contract"
"contract" have
have occurred.
occurred. Had
Had we
we
necessary
"right" has
has
assumed less, we should hardly
hardly be
be justified
justified in
in saying
saying that a "right"
assumed
been created.
created. Thus, if
if one
one party
party makes
makes an
an offer
offer to
to enter
enter into
into a contract
contract
been
of
any
of
the
foregoing
sorts,
but
there
has
been
no
acceptance,
acceptance, no
there has
the
of any
usage
justifies
us
in
saying
that
even
a
conditional
right
saying that even conditional right exists. And
usage
yet, one of the necessary
necessary operative
operative events
events has
has occurred.
occurred. The
The train
train of
of
as
is
operative
facts
is
started.
Each
of
the
remaining
events
necesevents
Each
operative
sary as another, is as truly a "condition"
"condition" as any other. Usage, howsary
ever-perhaps a somewhat arbitrary
arbitrary usage-fixes
usage--fixes the point in the
ever-perhaps
sequence
of
facts
at
which
a
conditional
"right" is said to exist.
sequence
Before
reaching
that
point,
we
may
perhaps
be justified
justified in using the
Before
7
right."l1
It
is
doubtful
whether this term
vague term "inchmite
It
"inchoate right.'
renders any service of value.
1.
The description of A's right would not be changed in case A had promised
'The
B in return to deliver the goods. Such a promise by A would be aa new operaA to
to have aa
A, and A
tive fact and would cause B to have aa "right" as well as
as A,
be described as "bilateral."
"duty" as well
as B. The "contract" would then be
well as
15
So. 394.
80 So.
312, 80
2o2 Ala. 3I2,
(I918) 202
Co. (I9I8)
Lumber Co.
Moragues Lumber
"'See Scott v. Moragues
the
affect the
not affect
does not
If
this does
York, this
to York,
to A to go to
promise to
has made aa binding promise
If BB has
B
and B
"right" and
A an
an additional "right"
description of A's
gives A
right. Such promise gives
A's right.
as
an
"contract" to be described as
the "contract"
cafise the
would not cause
It would
"duty." It
an additional "duty."
"bilateral."
"bilateral."
operative
future operative
1<'There
There are
these future
advantageous classifications of these
are various advantageous
With
478. With
facts
(1921) 478.
Contracts (I92I)
on Contracts
Cases 01~
See Corbin, Cases
"conditions." See
called "conditions."
facts called
comnew comagreements, new
the
business agreements,
and business
affairs and
human affairs
of human
complexity of
increasing complexity
the increasing
jural
of jural
binations
combinations of
new combinations
and new
courts and
the courts
by the
considered by
daily considered
are daily
binations are
congeneral conand general
relations
complex and
old complex
why the old
reason why
one reason
This isis one
recognized. This
relations recognized.
for
and for
problem and
of aa problem
cepts
analysis of
for the
the analysis
adequate for
longer adequate
no longer
are no
law are
the law
of the
cepts of
clear
its solution.
solution.
of its
statement of
clear statement
"The
said: "The
E. 579,
579, itit isis said:
N. E.
137 N.
App.) I37
11'In
In Michaels
Ind. App.)
(1922, Ind.
Pontius (I922,
Michaels v.v. Pontius
HeinOnline -- 33 Yale L.J. 513 1923-1924
YALE LAW
LAW JOURNAL
JOURNAL
YALE
In certain
certain fields
fields of
of the
the law
law the
the term
term "vested
"vested right"
right" has
has played
played aa part
part
In
of some
some importance,
importance, but
but itit is
is not a term
term that
that yields
yields easily
easily to
to definition.
of
In the
the law
law of
of property,
property, "vested"
"vested" is contrasted
contrasted with
with "contingent,"
"contingent," as
as
In
of vested
vested and
and contingent
contingent remainders.
remainders. A
A "remainder,"
"remainder,"
in the
the case
case of
in
however, is
is aa complex
complex interest
interest consisting
consisting of
of many
many jural
jural relations,
relations, not
not of
of
however,
requires aa full
full analysis
analysis that
that will
will not
not be
be attempted
attempted
simple "right."
"right." ItIt requires
aa simple
not mean
mean solely
solely an
an unconditional,
uncondition~l,present
present
here. A
A "vested"
"vested" right does not
here.
constitutional law, perhaps,
perhaps, a "vested"
"vested" right
right is one
one that
that
right. In constitutional
under prevailing
prevailing constitutions
constitutions is
is not
not subject
subject to
to confiscation;
confiscation; but
but this
this is
is
under
true of
of many conditional
conditional future
future rights.
rights. Doubtless,
Doubtless, rights
rights are
are "vested"
"vested"
true
great a degree
degree of
of uncertainty
uncertainty as
as to
to the
the occurrence
occurrence
when there
there is not
not too
too great
when
of
the
necessary
conditions
in
the
future.
The
exact
line
can
be-picked
picked
can
be
line
The
of the necessary conditions in the
out
only
by
empirically
collecting
the
decided
cases.
decided
the
out only by empirically collecting
Absolute duties.
duties. The term
term "absolute"
"absolute" when
when applied
applied to duties is somesomeAbsolute
applied
times
given
a
meaning
different
from
any
that
is
given
it
when
applied
when
any that
a meaning different
times
to rights. It
It is sometimes
sometimes said
said that
that while
while a right never
never exists
exists without
without
to
correlative duty, certain
certain duties
duties can
can exist
exist without
withouf any correlative
correlative
its correlative
1 7 a Such duties are said to be
rights.l7
be "absolute,"
"absolute," not meaning
meaning that such
Such duties
rights
duties are not relations
relations with other
other persons,
persons, but meaning
meaning that
that such other
other
duties
persons do not have rights
rights that are correlative
duties. Examples
correlative to the duties.
persons
the duty to abstain
abstain from cruelty to animals
animals or from certain
certain
given are the
immorality, and
and duties
duties to a child yet unborn. It
It is believed
believed that
acts of immorality,
this distinction
distinction is unsound and that such use of the term "absolute"
"absolute" is
if
unfortunate. The matter
matter is of practical
practical importance, chiefly because
because if
unfortunate.
there is inconsistency
language in this matter
matter there is also
also an unclear
unclear
inconsistency of language
concept behind
behind the term.
The concept behind the term "duty"
"duty" seems to be that societal pressure
certain conduct by him-that the agents of an
an
is put upon B to induce certain
organized
conduct
disadvantage if he does not conduct
organized society will act to B's disadvantage
himself as desired. This societal
societal action is taken-that
taken-that is, "duties"
"duties" are
created-for
satisfaction of human interests and
created-for the protection and satisfaction
-
.
pmperty in question [fixtures],
[fixtures], having been placed on the leased premises in
property
of
prospecting for oil, and operating the wells drilled thereon, gave the owner of
prospecting
the land covered
lease an inchoate right thereon. If the lease is still in
covered by the lease.
force,
force, this right may be terminated by a removal of the property from the
reasonable time thereafter,
premises before the expiration thereof, or within aa reasonable
. by the lessee, or someone deriving a right to do so from it; but if this is not
done it will ripen into a vested right. The
The owner of the land, therefore, has an
interest in
in preserving the property, which gives him and those claiming through
convert
seek to convert
him a right of possession
against mere trespassers, who may seek
possession as against.
the same to
valueless.Y'
thereby render such inchoate right value1ess.!~
use, and thereby
own use,
their own
to their
present rights
This means that the lessor has aa property
property interest, including present
against
to their extinguishment by
liability to
also a liability
he has also
but he
against third persons; but
severance
the lessee.
severance by the
Law
ITa
Elements of Law
Markby, Elements
412; Markby,
1869) 67, 412;
(3d ed.
ed. 1869)
Jurisprudence (3d
Austin, Jurisprudence
"a See Austin,
Trans.
(Hastings' Trans.
(6th
,of Law (Hastings'
Theory >of
General Theor.y
5o; Korkunov, General
1905) sec.- ISO;
(6th ed. 1905)
1909)
197, 2II.
211.
1909) 197,
HeinOnline -- 33 Yale L.J. 514 1923-1924
RIGHTS AND
AND DUTIES
DUTIES
RIGHTS
515
(
o
desires. The
The rules
rules determining
determining the
the action
action of
of the
the officials
officials of
of society
societyare
are
desires.
designedfor
forthis
this purpose.
purpose. ItIt appears,
appears, therefore,
therefore, that
that itit would
would be
be possipossidesigned
blein
in all
all cases
cases to
to point
point out
out some
some human
human interest
interestto
to be
beprotected.
protected. Such
Such
ble
an interest
interest isis an
aninterest
interestof
ofmen.
men. ItItmay
may be
be the
the interest
interest or
or desire
desire of
of one
one
an
of
class
specified
man
alone,
or
of
several
specified
men,
or
of
some
class
of
some
of
or
men,
specified
of
several
or
alone,
man
specified
there
cases
these
of
unspecified
men,
or
of
all
men
generally.
In
any
of
these
cases
there
any
In
generally.
men
all
of
or
men,
unspecified
may be
be more
more or
orless
less difficulty
difficulty in
in'identifying
the man
manor
men in
in question;
question;
or men
identifying the
may
seem
it
would
but
in
the
last
case
where
they
are
the
most
numerous
it
would
seem
numerous
most
the
are
but in the last case where they
interests
factual
that
there
is
the
least
difficulty.
These
men
with
the
factual
interests
the
with
men
that there is the least difficulty. These
to be
be protected
protected are
are the
the men
men with
with the
the "rights."
"rights." In
In the
the case
case of
of aa "duty
"duty
to
interests
common
the
to
the
state"
or
"to
society,"
the
"interest"
includes
the
common
interests
to the state" or "to society," the "interest" includes
of all.
all. Each
Each member
member has
has his
his interest
interest and
and that
that interest
interest isis protected.
protected.
of
If that
that is
is what
what we
we mean
mean by
by "right,"
"right," then
then each
each has
has aa "right."
"right." ItIt isis
If
merely aa case
case where
where many
many persons
persons have
have rights
rights against
against one
one and
and the
the one
one
merely
has aa duty
duty to
to each
each of
of the
the many.
many. Like
Like many
many other
other "obligations"
"obligations" to
to joint
loint
has
joint and
and several
several obligees,
obligees, the
the obligor's
obligor's duty
duty to
to each
each can
can be
be satisfied
satisfied
or joint
and extinguished
extinguished by
by aa single
single performance.
performance.
and
Where the duty
duty is
is owed
owed to
to one
one particular
particular person,
person, that
that person
person has
has aa
Where
special interest,
interest, one
one in
in which
which others
others do
do not
not participate.
participate. It
It therefore
therefore
special
looms large
large in
in his consciousness,
consciousness, and he
he itit is who
who makes
makes complaint
complaint of
of
looms
its infringement.
infringement. Where
Where the duty
duty is owed
owed to each
each of many-as
many-as where
where
its
person is cruel
cruel to
to his own beast-the
beast-the breach
breach does
does special injury
injury
some person
and little
little to them
them if
if they
they are well
only to those who witness the cruelty, and
hardened. In such cases,
cases, the many
many may
may have special
special officers
officers appointed
appointed
purposes of detection
detection and
and complaint.
for purposes
It
constantly remembered
speaking of "rights"
"rights" and
remembered that in speaking
It must be constantly
"duties"
we
dealing
with
physical
objects.
are merely
merely
We
objects.
dealing
not
are
"duties"
of
stating that somebody's interests will be promoted
promoted by legal coercion
coercion or'
another person and that such coercion
coercion by societal
societal action is obtainable.
It
interest to be that
"right" so as to require the interest
It is quite possible to define "right"
of
one
specific
person
exclusively,
and
at
the
same
"duty"
to define "duty"
time
of one
unspecified
so as to include cases where the interests are those of many unspecified
individuals.
some duties can be made
individuals. By such a definitional process, 'some
to appear "absolute"-not correlative
correlative to rights; but there will nevertheless
every instance be human individuals whose interests are being
theless in every
promoted
societal coercion of the duty-bearer.
promoted by the societal
caused by certain
Primary
"right" is caused
of aa "right"
rights. The existence of
Primary rights.
operative
not be conduct
may not
may or may
there mayor
operative facts. Among these facts there
not,
is not,
there is
If there
by
duty. If
legal duty.
of aa previous legal
B amounting to aa breach of
by B
such aa breach,
is such
the
if there is
"primary"; if
to be "primary";
said to
question is said
in question
right in
the right
if
the
"remedial." Thus, if
"secondary" and "remedia1."
to be "secondary"
said to
B is said
against B
the right against
right
BB promises
A's right
lent, A's
money lent,
for money
future date for
at aa future
$ioo at
A $IOO
to pay A
promises to
tresnot tresand
shall not
B shall
that B
right that
A's right
Likewise, A's
"primary." Likewise,
are "primary."
duty are
B's duty
and B's
described.
so
is
pass
on
A's
land
or
that
B
shall
not
negligently
injure
A
is
so
described.
A
injure
negligently
not
shall
B
that
or
land
A's
on
pass
his
breaks his
But
or breaks
A or
injures A
negligently injures
or negligently
land or
A's land
on A's
trespasses on
B trespasses
if B
But if
19
HeinOnline -- 33 Yale L.J. 515 1923-1924
5 I6
YALE LAW
LAW JOURNAL
YALE
contract with A, there is a right to damages in A and a new correlative
"secondary" and "remediaL"
"remedial."
duty in B. This right and this duty are "secondary"
differences between
There are two substantial differences
between the primary
primary right and
secondary right and duty. First, in order
duty and the secondary
order to make the
operative fact is added to those facts.
secondary right, one new operative
facts· that
created
created the primary right. Secondly, the performance required
required of B
to satisfy the societal
societal command is a different performance.
performance. In the case
of a money debt, payment of the principal sum would extinguish the
primary right and duty. After breach, interest (damages)
(damages) must be
paid as well as principal. In the case of a tort, B's primary
primary duty
requires
secondary duty
requires a forbearance to act so as to harm A, while his secondary
after commission of the tort requires
requires the payment of reparation
reparation to A.
In some cases, on breach of his primary duty by B, that duty is
secondary duty substituted. This means.
means that the
extinguished and the secondary
performance originally
originally required of B is no longer required at all. It
may not even
even be permitted. Such would be the case where B has com"vital" breach of a contract to build and A
A has acted upon the
mitted a "vital"
breach as final. In other
other cases, after breach, the primary
primary and secondary
duties exist together, the punitive
punitive action of society being directed toward
performance due and an additional performance
securing the original
original performance
performance
by way of damages. This is true in the case of money debts and also
in the case·
case.of
of breaches of contract where time is not of the essence.
essence.
The conduct
conduct required of B by the law is exactly
exactly what
what it was before
before the
breach, although
although it can now occur only at a later time; and the legal
sanctions
sanctions are unchanged. This is what
what is meant by the statement
statement that
the primary right and duty still exist.
The "enforcement"
"enforcement" of A's right and B's duty means the application
application
of the sanction-the
sanction-the penalty-by
It is only in rare
penalty-by societal
societal agents. It
cases that this application causes B to perform
perform exactly
exactly as and when his
duty required. An injunction or a decree for specific performance
performance in
in
equity comes
comes near it at times; but the decree sometimes
sometimes fails of its
purpose, and even when it succeeds, the performance
performance is delayed and
halting. This is true also in the case of a judgment
of
judgment in an action of
debt. Occasionally
Occasionally the breach of a primary right may be successfully
prevented by an injunction or by a police officer. The
declaratory
prevented
The' declaratory
judgment
sometimes has the same effect.
judgment no doubt sometimes
The foregoing may be equally
equally true of both primary
primary and remedial
rights. Hanging
Hanging a murderer does not prevent his particular
particular crime.
A judgment for damages does not prevent breach of the contract
contract duty,
and it may equally fail to cause B to
to, pay the damages adjudged. That
That
"society" is omnipotent.
the sanction fails merely shows that not even "society"
Nevertheless,
Nevertheless, the agents of that society acted according
according to their habit;
habit;
their behavior
behavior was as predicted, in aid of A and against B.
The judgment or decree
decree of a court is a new and additional operative
It is sufficient
sufficient of itself to create a right and duty. Generally,
fact. It
HeinOnline -- 33 Yale L.J. 516 1923-1924
RIGHTS
RIGHTSAND
AND DUTIES
DUTIES
serves toto liquidate
liquidate and
and make
make certain
certain that
that which
which before
before was
was
itit serves
unliquidated
and
uncertain.
Sometimes
the
performance·
required
by
by
required
performance
the
Sometimes
unliquidated and uncertain.
the
judgment
is
different
from
that
required
by
either
the
primary
or
or
primary
the
either
by
required
that
the judgment is different from
the
secondary
duty.
Even
if
not,
it
has
a
legal
operation
in
other
other
in
operation
legal
a
the secondary duty. Even if not, it has
respects different
different from
from that
that of
ofthe
thepre-existing
pre-existingfacts.
facts.
respects
A
and
B
and
other
litigants
may
have
rights
against societal
societal officers
officers
A and B and other litigants may have rights against
but
there
and
agents.
These
might
also
be
called
"remedial"
rights;
there
but
rights;
and agents. These might also be called "remedial"
is
little
usage
to
warrant
it.
The
jural
relations
of
administrative
administrative
of
is little usage to warrant it. The jural relations
officers with
with other
other citizens
citizens form
form the
the subject
subject matter
matter of
of administrative
administrative
officers
We shall
shall not
not deal
deal with
with them
them here,
here, nor
nor with
with the
the jural
jural relations
relations
law. We
law.
between citizens
citizens and
and judicial
judicialofficers.
officers.1818
between
VARIETIES OF
OF SOCrETAL
SOCffiTAL SANCTIONS
SANCTIONS
VARIETIES
The next
next matter
matter for
for consideration
consideration isis the
the character
character of
of the
the societal
societal
The
sanction. What
What kinds
kinds of
of penalties
penalties justify
justify us
us in
in saying
saying that
that A
A has
has aa
sanction.
are
There
that
B
has
the
correlative
jural
duty?
There
are
jural
right
and
jural right and that B has the correlative jural duty?
has
differences in
in the
the severity
severity of
of the
the penalty,
penalty, even
even after
after its
its application
application has
differences
right has
has become
become present,
present, unconditional,
unconditional, and
and
become certain
certain and
and the
the right
become
of
manner
immediately
enforceable.
There
are
differences
in
the
manner
of
the
immediately enforceable. There are differences in
administering
the
penalty
and
in
the
officers
by
whom
it
administered.
administered.
is
administering the penalty and in the officers by whom it
It is
is upon
upon these
these differences,
differences, often
often aa difference
difference in
in degree
degree alone,
alone, that
that the
the
It
should
We
definition
and
classification
of
jural
rights
largely
depend.
We
should
jural rights largely depend.
definition and classification
follow judicial
judicial usage,
usage, and
and even
even popular
popular usage,
usage, so far
far as
as this is not
not
follow
and
inconsistent
or
vague
and
therefore
not
suitable
for
clear
thinking
and
thinking
clear
suitable
inconsistent or vague and therefore
approach is by considering
specific
accurate expression.
expression. The best approach
considering in specific
accurate
is
cases
the
consequences
to
an
individual
of
his
failing
to
do
that
which
is
which
do
cases the consequences to an individual
said
to
be
his
duty.
said to be his
In criminal
law, penalties
wrongdoing vary all the way from
penalties for wrongdoing
criminal law,
In
death
and
physical
torture
down
to
a reprimand.
reprimand. If
If society commands
death and physical torture
or
to
forbear
under
penalty
o'f
death
or
imprisonment
or flogB
to
act
imprisonment
of
B to act or to forbear under
ging
or
a
money
fine
or
even
a
reprimand
by
the
court,
do
not
hesiwe
ging or a money fine or
tate
to
say
that
B
is
under
a
legal
duty
to
act
or
to
forbear.
Within
tate to say that B
these
legal duty does not depend upon the weight
the legal
least, the
at least,
limits, at
these limits,
of
the
penalty.
In
each
of the penalty
infliction of
howeirer, the infliction
of the penalty. In each case, however,
to
involves
affirmative
action,
by
a
representative
of
society,
detrimental to
society,
a
involves affirmative action,
B.
In
the
law
of
torts
and
contracts
the
penalty
for
wrongdoing
wrongdoing
is
for
penalty
the
B. In the law of torts and
by
usually
money
damages,
this
too
involving
affirmative
action
by
judicial
action
affirmative
usually money damages,
jural
the jural
of the
and
existence of
Again the existence
"the law." Again
officers of "the
executive officers
and executive
all
at
is
It
duty
does
not
depend
upon
the
size
of
the
penalty.
It
is
not
at
all
penalty.
duty does not depend upon the size of the
"
other
of other
There isis some
use of
some use
and some
rights and
of rights
varieties of
other varieties
of other
recognition of
some recognition
"There
of
adj
ective modifiers.
rights, of
"dynamic" rights,
and "dynamic"
"static" and
of "static"
heard of
has heard
writer has
The writer
modifiers. The
adjective
general
rights
"in
possession"
and
rights
"in
action,"
but
he
is
unaware
of
any
general
any
of
unaware
is
he
but
action,"
"in
rights
and
rights "in possession"
chattel
usage
physical chattel
not aa physical
"right" isis not
meanings. AA "right"
definite meanings.
any definite
or any
sort .or
the sort
of the
usage of
to
be
held
or
thrown;'
nor
is
it
electricity
or
energy.
There
is
merely
a
unia unimerely
is
There
energy.
or
electricity
it
is
nor
to be held or thrown;
certain
in aa certain
formity
acts in
he acts
that ifif he
inform BB that
to inform
us to
enabling us
behavior enabling
human behavior
of human
formity of
acts
manner
so acts
that ifif BB so
inform AA that
to inf.orm
and to
him, and
get him,
will get
law will
the law
of the
minions of
the minions
manner the
the
briefly
more briefly
This isis more
A. This
compensate A.
perhaps compensate
and perhaps
punish BB and
will punish
minions will
the minions
expressed
A.
to A.
duty to
has aa duty
that BB has
and that
against BB and
right against
has aa right
that AA has
saying that
by saying
expressed by
IS
HeinOnline -- 33 Yale L.J. 517 1923-1924
518
YALE LAW
LAW JOURNAL
JOURNAL
YALE
uncommon for
for "punitive"
"punitive" damages
damages to be
be awarded
awarded in
in addition
addition to
to
uncommon
"compensatory," both sorts being equally "punitive" in
broader
"compensatory," both sorts being equally "punitive" in its broader
sense as
as far
far as
as the wrongdoer isis concerned
concerned ;19
;19
and statutes
statutes frequently
frequently
and
20
allow
double
or treble damages.
damages.2o
However, the
the passage
passage of aa statute
statute
allow double or
However,
trebling the
the damages
damages recoverable
recoverable for
for aa wrongful
wrongful act
act has
has no effect
effect whatwhattrebling
ever upon
upon the
the duty
duty itself
itself the
the breach
breach of
of which
which is the wrong
wrong complained
complained
ever
of. It
It creates
creates no new
new duty, but
but merely adds aa new
new sanction to the
the
of.
existing
duty.
existing duty.
Inasmuch as
as the
the existence
existence of
of jural right
right and duty
duty means
means nothing
nothing
Inasmuch
except
that
organized
society
affords
a
systematic
remedy
or
remedies
except that organized society affords a systematic
or remedies
through its
its judicial
judicial and
and its
its executive
executive or
or administrative
administrative officers,
officers, legislalegislathrough
tive
action
that
abolishes
all
remedy
and
all
sanction
also
abolishes
the
tive action that abolishes all remedy and
also
right and
and the
the duty.
duty. Legislation
Legislation that abolishes only
only some
some of the
right
remedies-part but
but not
not all
all of
of the sanction-does
sanction-does not
not abolish
abolish the
the right
, remedies-part
or the
the duty.
duty. The abolition of imprisonment
imprisonment for
for debt
debt materially changed
or
the remedy,
remedy, but
but it
it did not
not extinguish the debt-the jural duty of the
the
debtor. However,
However, since
since some
some remedies
remedies are
are more
more effective than others
debtor.
for enforcing
enforcing and
and securing performance of duty, a legislative change
change
for
in remedies
remedies may
may gravely
gravely affect the value or advantage of a right to its
in
possessor and
and the burden of aa duty to its bearer.2211 Our national constipossessor
tution deprives
deprives the
the States
States of
of power
power to extinguish certain rights, privitution
leges, and
immunities, but
not of
of power
leges,
and immunities,
but not
power to vary existing remedies
within reasonable
reasonable.. limits. Legislation that affects only the procedure
within
procedure
by which
which the
the existence
existence of
by
of facts is established or the existence of jural
relations is
is ascertained,
ascertained, no doubt also affects the value of rights,·
rights, duties,
relations
and other
relations;
but usually
usually not
not so directly as does a change
and
other jural
jural
relations;
but
22
of remedy.
remedy.22
"Modern humanitarians often distinguish
distinguish between
between revenge
revenge and
prevention,
111 Modern humanitarians often
and prevention,
between
punishment and
For our
between punishment
and reparation.
reparation. For
our present purpose these distinctions
are
one person
person suffers
suffers harm
harm at the hands of another
are immaterial.
immaterial. When
When one
another he
he
tends to
react violently.
violently. His
His survival
survival and
and prosperity
prosperity depend largely upon the
tends
to react
future
prevention of
harm. His
are aroused,
he feels
feels indignation.
future prevention
of such
such harm.
His emotions
emotions are
aroused, he
indignation.
will be
. This
This indignation
indignation will
be described
described by
by his
his neighbors
neighbors as
as "righteous"
"righteous" if
if they seem
seem
to
threatened with
to be
be threatened
with similar
similar harm.
harm. Therefore,
Therefore, they take steps
steps to prevent
prevent the
harm by
about serious
serious consequences
consequences to
harmdoer and
harm
by bringing
bringing about
to the
the harmdoer
and by proclaimproclaiming
consequences will
ing that
that similar
similar consequences
will follow
follow future
future harm
harm of
of the same sort. Thus,
"sanction" is
is established
and aa "law"
"law" is made. Whether
aa "sanction"
established and
Whether the "consequences"
"consequences"
should
determined by
should be
be light
light or
or heavy
heavy is
is to
to be
be determined
by their
their effectiveness
effectiveness to secure
secure the
desired
desired object.
object. But
But compensatory
compensatory damages
damages are
are awarded
awarded for
for the
the same
same general
general
reasons
are punitive
fines, and
imprisonment-to prevent
reasons as
as are
punitive damages,
damages, fines,
and imprisonment-to
prevent similar
similar
harms in
to prevent
war.
harms
in the
the future
future and
and to
prevet;lt private
private war.
"Thus,
gives treble
""
Thus, Conn.
Conn. Gen.
Gen. Sts.
Sts. 1918,
1918, sec.
sec. 6144,
6144, gives
treble damages
damages against
against aa thief
thief
or
6145, double
or receiver
receiver of
of stolen
stolen goods
goods iri
iIi favor
favor of
of the
the owner;
owner; sec.
sec. 6145,
double damages
damages
to
to one
one injured
injured by
by forgery;
forgery; sec.
sec. 6146,
6146, treble
treble damages
damages for
for wilful
wilful removal
removal of
of a
bridge;
bridge; sec.
sec. 6147,
6147, treble
treble damages
damages for
for injury
injury to a milestone
milestone or
Dr guidepost;
guidepost; sec.
sec.
6148,
6148, treble
treble damages
damages for
for aa vexatious
vexatious suit.
suit. See
See also
also the
the Sherman
Sherman Anti-trust
Anti-trust
law
and laws
laws giving
giving remedies
remedies for
for infringement
infringement of
of Patents
Patents and
and Copyrights.
Copyrights.
law and
'For example, see note
21 For example, see
note 9,
9, supra.
supra.
'This
""
This indicates
indicates that
that distinctions
distinctions between
between "substantive
"substantive law"
law" and
and "adjective
"adjective
law,"
law," or
or between
between "substance"
"substance" and
and "procedure"
"procedure" are
are not
not soso· fundamental
fundamental as
as is
is
HeinOnline -- 33 Yale L.J. 518 1923-1924
RIGHTS AND
AND DUTIES
DUTIES
RIGHTS
not necessary
necessary to
to the
the existence
existence of
of aa jural
jural duty
duty that
that the
the sanction
sanction
ItIt isis not
or penalty
penalty should
should consist
consist of
of affirmative
affirmative action
action by
by an
an officer.
officer. Suppose
Suppose
or
not kill;
kill; ifif BB
the only
only rule
rule of
of law
law against
against homicide
homicide isis this:
this: Thou
Thou shalt
shalt not
the
shall kill
kill A,
A, BB shall
shall be
be outlaw,
outlaw, and
and anyone
anyone (X)'
(X)'isis privileged
privileged to
to kill
kill him
him
shall
and to
to seize
seize his
his goods.
goods. Surely
Surely this
this would
would be
be sufficient
sufficient to
to create
create aa
and
"duty" not
not to
to kill.
kill. The
The denial
denial of
of the
the usual
usual forms
forms of
of protection,
protection, the
the
"duty"
extinguishment of
of "personal"
"personal" and
and "property"
"property" rights
rights possessed
possessed by
by B
B
extinguishment
the
before his
his wrongful
wrongful act,
act, is
is itself
itself aa sanction
sanction and
and aa penalty.
penalty. Even
Even ifif the
before
(X) who
who hunts
hunts the
the outlaw
outlaw to
to his
his death
death should
should not
not be
be
individual (X)
individual
the
that
regarded
as
a
societal
agent,
the
fact
that
the
rule
provides
that
the
provides
rule
societal agent, the fact that the
regarded as
sheriff and
and other
other peace
peace officers
officers will
will not
not act
act against
against X for
for killing
killing B
B
sheriff
a
penalty
as
operates
as
a
heavy
penalty
and
a
preventive.
It operates
operates as a penalty
operates as a heavy penalty and a preventive. It
in spite
spite of
of the
the fact
fact that
that BB may
may escape
escape from
from X.
X. Any
Any criminal
criminal may
may
in
that
The
one
penalty
that he
he cancanescape
from
jail
or
from
the
hangman.
penalty
one
escape from jail or from the hangman. The
not escape
escape is being
being "outlaw."
"outlaw."
not
if aa neutral
neutral merchant
merchant vessel
vessel is ordered
ordered
According
to
international
law if
international law
According
to stop by a belligerent
belligerent vessel
vessel looking
looking for contraband,
contraband, the latter
latter is
is
the
obey
not
she
does
privileged
to
fire
at
and
to
former
if
if
she
not
obey
the
former
the
sink
and
to
at
privileged to
command. Disobedience
Disobedience makes
makes the
the neutral
neutral an "outlaw"
"outlaw" to
to this
this extent.
command.
creation
the
and
of
security
creation
The
extinguishment
of
the
neutral's
security
of
right
neutral's
The extinguishment of
of a legal
legal privilege
privilege in the
the belligerent
belligerent to send
send death
death and destruction
destruction seem
seem
to be
be an ample
ample sanction
sanction for legal
legal duty and
and to justify
justify our
our saying
saying that the
neutral is under aa "duty"
"duty" to heave
heave to when
when commanded:
commanded; In this
neutral
if
the neutral
instance
the
privilege
only
temporary;
neutral ship
ship runs
temporary;
is
only
to
fire
privilege
the
instance
escapes, the privilege
privilege of sinking her
her would not survive
survive and no
and escapes,
further penalty
penalty for her
her disobedience will
will be assessed.
Roman law, and perhaps
perhaps also by our own, certain claims
claims were
By the Roman
enforced only by giving to the claimant
claimant a "lien"
"lien" on goods in his possesenforced
23
property interest, called a "lien,"
"lien," in the
The creation of a property
sion. 23
claimant marks
marks an,equal
subtraction from the property
property interest
interest of the
an-equal subtraction
claimant
legislation
often believed; and yet reasonable distinctions can be drawn. Thus legislation
may directly create or extinguish rights and duties or other jural relations.
Such
"substantive." Secondly, legislation may effect some change
Such law is surely "substantive."
in remedies without creating .or
extinguishing any jural relation between private
or extinguishing
legislation must, however, affect the jural relations
citizens A and B. Such legislation
between each of
of these individuals and the societal officers charged with adminChanistering remedial law. It gives to A or takes from him a right that the Chancellor shall issue an injunction or that the
B. This legislashall arrest B.
the sheriff shall
"remedial."
called "remedial."
tion is also
although falling within aa sub-class called
"substantive," although
also "substantive,"
v. Hanssen
Hanssen
Jones v.
[This seems to have been overlooked by the
& JOlles
in Pusey
Pusey &
the court in
JOURNAL,
LAW JOURNAL,
33 YALE LAW
(1923) 33
(1923)
Ct. 454; COMMENTS (1923)
491, 43
43 Sup. C,t.
S.491,
(1923) 261 U. S.
193.]
the burden
as by
by changing the
only, as
procedure only,
affect procedure
193.] Thirdly, legislation may affect
of
witness or by limiting
competent witness
party a competent
proof or by making an interested party
of proof
relation
cross-examination.
any jural
jural relation
extinguish any
This seems not to create or extinguish
cross-examination. This
between any
parties.
litigating parties.
any two
two litigating
by law,
.." "Leaving
not recognised
recognised by
obligations, not
moral .obligations,
of account merely moral
out of
"Leaving out
were
Most were
not
enforceable. Most
were equally enforceable.
enforce were
law would enforce
the law
which the
all which
not all
not
did not
the law did
which the
in which
cases in
enforceable
few cases
Were aa few
action, but there were
enforceable by action,
cases
ways. There were cases
allow
indirect ways.
in indirect
enforcement in
allow enf.orcement
but did
did allow
an action
action but
allow an
action.
by action.
not by
retention, not
in
of retention,
by way
way of
only by
be enforced
enforced only
could be
claim could
which aa claim
in which
HeinOnline -- 33 Yale L.J. 519 1923-1924
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benefited by
by the claimant's
claimant's service.
service. This
This lien is created
created immeimmeone benefited
service, and before
before the party
party served
served can
can be said to
diately upon the service,
committed a breach
breach of duty. Therefore
Therefore it is
is not a "penalty"
"penalty" for
for
have committed
breach. It
It is
is nevertheless
nevertheless a means
means taken
taken by society
society for "enforcing"
"enforcing"
breach.
the payment
payment of a claim,
claim, and it can be
be said with
with some
some reason
reason to
to amount
amount
the
"right" and aa "duty."
"duty." Doubtless,
Doubtless, some
some would
would
the recognition
recognition of a "right"
to the
here deny
deny the propriety
propriety of using the latter
latter terms, and would
would prefer
prefer to
to
here
saying that
that the
the party
party benefited
benefited owes nothing
nothing
describe the situation by saying
describe
and is under
under no duty, that
that he has merely lost
lost that part
part of his property
and
claimant but
but has
has the "power"
"power" to
commensurate with the
the "lien"
"lien" of the claimant
commensurate
destroy the lien
lien and to
to recreate
recreate his own original
original property
property interest
interest by
by
destroy
making
making a valid
valid tender.
"duty" to
to a surety not
not to give an extension
extension of
of
Is a creditor under a "duty"
time to
to the principal
principal debtor? It
It seems
seems proper to say that
that he
he is; but
sanction or societal
societal penalty
penalty for breach
breach of such a duty is the
the only sanction
creditor's rights against the surety, and no
extinguishment of
of the creditor's
extinguishment
affirmative
action is taken by any
any officer
officer against
against the creditor. Such a
affirmative action
surety and more
penalty operates,
operates, however, more beneficially
beneficially to the surety
detrimentally
creditor than would
would a judgment
judgment for money
money
detrimentally to the creditor
damages. Indeed, the rule has been severely
severely criticised
criticised because
because it penalpenalizes the creditor severely in cases where his action
action may have caused
caused the
24
surety no loss whatever.
whatever.24
under a "duty"
"duty" to his bank to examine
examine returned
returned
Is a depositor under
cancelled checks
checks and
and to notify
notify the bank
bank in case
case he detects forgery?
forgery? His
cancelled
been held
failure to do so has be('n
held to extinguish
extinguish his right to the sum paid
paid
25
This is certainly
certainly a
check in his name. 25
out by the bank on a forged check
severe penalty for non-action.
Thus a defendant in a real action could resist the claim unless reimbursed for
certain expenses, but could not recover
recover them by independent
independent action. There
againsi a bona
was the same right where a creditor
creditor sought to enforce a pledge
pledge against
. . The holder in commodatum or deposit had this right of retenfide holder . . ..
of
actio contraria,
tion apparently
apparently before
bef.ore he acquired an actio
contraria, and at the beginnings of
it seems, the only
contract of pledge this right of retention
the caatract
retention of the res was, it
(1921) 407.
right conferred by it." Buckland, Roman Law (1921)
407•
Redinan (1876)
••" See Cockburn, C. J., in Swire v. Redman
(1876) L. R. Ii Q. B. Div. 536.
It
argued that the creditor's
creditor's right against the surety is merely a
It might be argued
conditional one, the conditioning
conditional
conditioning fact being his own forbearance
forbearance to extend the
payment to the principal
time of payment
principal debtor; that society does not make it the
creditor's duty to forbear to extend the time, but merely puts it in his power to
acquire
acquire a right against the surety
surety by so forbearing. One answer to this is that
such is not the language of the parties or their actual intention. The surety
makes a promise to the creditor for a consideration. He regards himself as
regard him. His duty is conditional
bound
bound by a jural duty and the courts
courts so 'regard
conditional
upon the failure of the principal debtor to pay at maturity; but it is not regarded
forbearance to extend the time of payment. An extension
as conditional
conditional upon forbearance
extension
of time is regarded as increasing
increasing the surety's risk that the debtor will not pay
and as an injurious act, the penalty for which
which is the extinguishment
extinguishment of the
surety's existing duty to the creditor.
his Bank (1922)
os See Arant, Forged
Forged Checks-The Duty of a Depositor
Depositor to his
(19ZZ) 31
598.
YALE LAW
JouRNAL , 59S.
YALE
LAW JOURNAL,
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RIGHTS AND DUTIES
5 21
Suppose that X represents to A that certain
certain goods are his own and
induces
induces A to buy them, while the real owner B stands by observing the
the
misrepresentation
"duty" to A to
misrepresentation and its effect. Is B under a legal "duty"
warn him as to the true ownership?
is;
ownership? It
It may properly be said that he is;
the "estoppel,"
"estoppel," the extinguishment
extinguishment of B's property
property interest, is the
societal penalty inflicted
inflicted for his wrongful silence. So also, if X falsely
represents to A that he is the agent of B, with B's knowledge,
knowledge, it is said
26
Yet the only penalty
A.26
penalty is
to be B's "duty" to speak the truth to A.
that silence
silence operates
operates as a ratification.
ratification.
A husband and father is said to be under a duty to support
support his wife
and children. Affirmative
Affirmative sanctions
sanctions have been invented
invented to enforce this
"power" created
sanction exists in the "power"
created in third
duty; but an operative sanction
persons to create
necessaries furnished to wife or child.
create a duty to pay for necessaries
The duty of a child to obey its parent is sanctioned by creating
creating the
privilege
privilege to spank.
In the immediately
sanction
immediately foregoing cases, the societal penalty
penalty or sanction
of
consists in the creation of new and detrimental jural
jural relations
relations by rule of
law alone without any affirmative
Clearly
affirmative judicial or executive action. Clearly
distinguishable from these are the cases where a person's non-action
non-action is
followed, not by injurious
injurious physical
physical or jural deprivations,
deprivations, but
but- only by a
affirmative gain. Thus if B discovers
failure to make some possible affirmative
gold on the public domain, he is under no duty to pick it up. He has
the legal power to make it his own; on his failure to exercise that power
power
the law
law takes nothing from him. Again, B is under no duty to advertise
his wares or to make offers, even though the result is that he makes
makes no
sales. For the same reasons, he is under no duty to accept offers made
to him.2277 When A has broken his contract
contract with B, and B can, by
said
stopping work, easily prevent his loss from increasing, it is often said
that B is under a "duty
damages." It
It has been judicially
"duty to mitigate damages."
judicially
28
there is no such duty.
duty.28
B's failure to mitigate
observed, however, that there
his loss is not penalized by society. B's right to damages
damages was created
created
and the amount computed
computed as of the time of A's final breach. Thereafter B's failure to discontinue
discontinue work changes in no respect
respect his jural
jural
action;
money by reason of his action;
relations with A. Of course, B is losing money
" "The person with whom the agent dealt ,will
will so obviously be de{;eiv~d
deceived by
..
by
assuming
assuming the professed agent was authorized
authorized to act as such, that the principal
is under a duty to undeceive
Contracts (I92O)
see. 278.
undeceive him." 1i Williston, Contracts
(1920) sec.
acceptance in the offeree; his failure to use
.., The offer creates a power of acceptance
it may prevent his making a gain, but this is not a societal
societal sanction. The same
is true of many jural powers. The holder of a life insurance
insurance policy is generally
generally
under no duty to pay the premium, although only by so doing can he create a
right to payment
the. same way the holder of a negotiable
payment by the company. In the,
negotiable
instrument
instrument is under no duty to give notice to an indorser; the latter has undertaken a conditional duty, and the holder has power, by fulfilling the condition,
condition,
to make the duty unconditional.
unconditional. ,
v. Vandine
" Burch, J., in Rock v.
Vandine (1920)
(i92o) 106
io6 Kan. 588, lSg
i89 Pac. 157. See
"Burch,
See also
also
Scrutton, L. J., in Payzu v. Saunders
[igi9, C. A.] 2 K. B.
Sallnders [1919,
B. 581, 596.
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but so
so also
also does
does he
he lose
lose money
money when
when he
he throws
throws itit into
into the
the sea,
sea, yet
yet he
he isis
but
under no
no duty
duty not
not to
to throw
throw itit there.
there. A
A creditor
creditor loses
loses a valuable
valuable right
right
under
when he
he releases
releases his
his debtor,
debtor, but
but this
this loss
loss is
is not
not aa societal
societal penalty
penalty for
for
when
doing a wrongful
wrongful act.
act. Hanging
Hanging is
is aa societal
societal penalty
penalty for
for murder;
murder; a
doing
suicide may
may reach
reach the
the same
same result
result by
by hanging
hanging himself,
himself, but
but he
he is
is not
not
suicide
being penalized
penalized by society.
society.299
being
The criterion
criterion of
of jural
jural rights
rights and
and duties that
that is
is here
here adopted
adopted seems
seems
The
to be
be quite
quite inconsistent
inconsistent with
with any
any "sanction
"sanction of
of nullity."
nullity." It
It is readily
readily
the adopted
adopted criterion
criterion is
is not
not a necessary one,
one, all
all others
others
admitted that the
admitted
being "untrue."
"untrue." It
It is suggested
suggested merely
merely as
as a criterion
criterion that
that works,
works, one that
that
being
convenient and
and in harmony
harmony with
with generally
generally prevailing
prevailing usage. The
The usual
usual
is convenient
distinctions between
between "void"
"void" and "illegal"
"illegal" contracts
contracts sustain
sustain it. A promise
promise
distinctions
w~thout consideration
consideration is void,
void, but there
there is no
no duty
duty not to
to make
make it. The
without
of such
such aa promise
promise has
has no
no effect
effect whatever
whatever upon
upon the
the action
action of
of
making of
officers of
of the law. Certain
Certain contracts
contracts of
of wagering
wagering or
or in restraint
restraint of
of
officers
times been unenforceable
unenforceable and
and void. Their
Their making
making is
is
trade have at times
breach of
of jural
jural duty, however,
however, unless the law
law goes further and
not a breach
declares that they
they will invalidate
invalidate other
other agreements
agreements made
made in connection
connection
other penalty. If
If "nullity"
"nullity" is included
included among
among
with them or affixes some other
and duty
duty would be
be greatly
greatly enlarged
enlarged
sanctions, the fleld
field of right and
jural sanctions,
without advantage.
advantage.
without
societal sanction or penalty need not consist
consist of affirmative
affirmative action
- The societal
action
by "officers
and yet it must be such as to affect
affect their action
"officers of the law"; and
somehow and
and disadvantageously
disadvantageously to the wrongdoer. Otherwise, we
should have no distinction between legal
legal rights and duties and moral
moral
rights and duties. In a number
number of instances above, the sanction conbecame
of the wrongdoer:
sisted in a change in the jural
jural relations
relations ofwrongdoer: he became
"outlaw" or
lost his
his property
property rights or he became
"outlaw"
or he
he lost
became bound by a
contract. These changes in jural relations
relations mean in every instance that
that
would
otherwise would
the action of "officers
"officers of the law" will not be what it otherwise
have been. If
conduct will not be affected in any manner, we may
If their conduct
be talking morality but we are not talking law. A parent who loves to
to
accomplishments of his offspring may find that his
lie about the accomplishments
neighbors shun his presence;
presence; but the police will not arrest him, the
judge will not award damages, he has lost none of his jural rights as to
to
ostracising him his fellow
It is true that in socially ostracising
person or goods. It
citizens
citizens are penalizing his conduct, often more severely than when the
penalty is applied by the judges and the police. In each case the penalty
It
is intended to discourage conduct regarded as undesirable socially. It
is usage alone that justifies us in restricting the field of the law and
a
..' The act of
societal
crime and there may be various societal
of suicide may itself be aa crime
the attempt.
attempt. See
for succeeding
succeeding in the
even for
penalties for attempting suicide or even
CoL. L. REV.
REv. 379.
(903) 3 COL.
Mikell.
Murder? (1903)
Mikell, Is
Is Suicide
Suicide Murder?
when attacked appears not to be aa duty.
"duty" to retreat when
manner the "duty"
In like manner
but the person
Failure to
deprivation; but
by any
any jural deprivation;
to retreat is not punished by
back.
attacked
retreating of gaining the jural privilege of hitting back.
has the
the power by retreating
attacked has
HeinOnline -- 33 Yale L.J. 522 1923-1924
RIGHTS AND
AND DUTIES
DUTIES
RIGHTS
jural rights
rights and
and duties
duties to
to the
the field
field of
of action
action of
of certain
certain recognized
recognized
jural
societal agents.
agents.30so
societal
Action by
by an
an irregular
irregular mob
mob should
should never
never be
be regarded
regarded as
as action
action by
by
Action
societal agents,
agents, in spite
spite of
of the
the fact
fact that
that in
in some
some instances
instances their
their feelings
societal
and actions
actions will
will be
be approved
approved by
by nearly
nearly the
the whole
whole population.
population. Such
Such
and
action isis so lacking
lacking in
in uniformity
uniformity that
that in
in general
general it
it cannot
cannot be
be predicted,
predicted,
action
is confessedly
confessedly contrary
contrary to
to the
the accepted
accepted rules,
rules, and
and it is generally
generally
it is
disapproved of
of by the
the majority
majority of
of people
people within
within the
the legislative
legislative territerridisapproved
toriallimits.
limits.
torial
It is
is sometimes
sometimes doubted
doubted whether
whether international
international law is properly
properly to
to be
be
It
regarded as law, and
and it is
is suggested
suggested that rights and
and duties recognized
recognized by
by
regarded
that system
system fall within
within the
the moral
moral and
and not
not the
the jural
jural field.
field. This is
is because
because
that
lack of organization
organization in international
international or world
world society
society and
and because
because
of the lack
sanctions of international
international law are
are perhaps
perhaps less effective
effective than are
the sanctions
those applied
applied within
within the separate
separate nations. -Organization,
-Organization, however,
however, is
is not
not
those
The Foreign
Foreign Offices
Offices operate
operate with great
great regularity
regularity as
as societal
societal
lacking. The
Commissions and other special
special international
international
Mixed Oaims
Claims Commissions
agents. Mixed
courts act in the same
same capacity
infant
capacity with frequency. We have the infant
courts
League of Nations, The Hague
Hague Court, and
and the
the new World Court; and
League
almost
addition there
there have
have been
been international
international congresses
congresses from time almost
in addition
immemorial. There
There is
is no
no regularly
regularly *organized
'organized police force, but we
we
immemorial.
can point to examples of a posse comitatus.
of
comitatus. There exists a body of
can
which are
are as nearly certain to be obeyed'
obeyed" as are
are the rules
rules, some of which
national law. It
national law,
It is not easy, even within the field of national
of national
draw the exact boundary
boundary line between
between morality and law, between
between
to draw
jural rights and duties. It
It may be that the
moral rights and duties and jural
international field; but
drawing of this line is more difficult in the international
but
drawing
the same tests are to be applied, and it is believed that there are suf..
"recognized societal
"ItIt is possible for individuals to exclude action by "recognized
agents"-the
executive or administrative
prevent
administrative officers-and thus prevent
agents"--the judicial and executive
moral rights
the existence of jural
jural rights and duties although expressly creating moral
and duties. In Rose &
v. Cromptoll
Crompton [1923, C. A.] 2 K. B. 261, the
& Frallk
Frank Co. v.
parties drew up a writing involving large sales of goods between England and
America, covering a period of years. One paragraph was as f'Ollows:
follows: "This
arrangement
entered into, nor is this m~orandum
memorandum written, as a formal
arrangement is not entered
Dr
or legal agreement, and shall not be subject to legal jurisdiction in the Law
Courts
it is only a definite expresbut it
the United States or England, but
either of the
Courts either
sion and record of the purpose and intention of the three parties concerned to
which they each honorably pledge themselves with the fullest
confidence, based
fullest confidence,
of
by each of
on past business with
with each other, that it will be carried through by
It was held
co6peration." It
and friendly cooperation."
loyalty and
the three parties with mutual loyalty
283) that "the
that action would not lie for aa breach. Bankes, L.
L. J.;
J., said (p. 283)
document
pledge, and that all legal consequences and
honorable pledge,
is only an honorable
document is
ist Dept.)
(1913, 1st
Cunningham (1913,
Straus v. CUllnillgham
remedies are
excluded from it." In Straus
are excluded
made
was made
composition agreement was
1014, aa compositiDn
159
Supp. 1014,
i44 N. Y. Supp.
App. Div.
Div. 718, 144
159 App.
obligation," but the
whereby the creditors released the debtor from "all legal
legal obligation,"
Smith
See also
also Smith
obligation." See
and continued "his moral obligation."
latter expressly reserved and
(1gI)
Martin (1911)
8o; MOllroe
Monroe v. Martill
Pac. 80;
Calif. App.
App. 503, 174 Pac.
Macdonald (1918) 37 Calif.
v. Macdo1lald
S.E.
E. 341.
73 S.
137 Ga.
Ga. 262, 73
137
HeinOnline -- 33 Yale L.J. 523 1923-1924
YALE LAW
LAW JOURNAL
JOURNAL
YALE
ficient organization,
organization, sufficient
sufficient sanction,
sanction, and
and sufficient
sufficient certainty
certainty in
in
ficient
prediction to
to justify
justify existing
existing usage
usage of
of the
the term
term "intemationallaw."
"international law."
prediction
BREACH OF
OF DUTY
DUTY CONSISTS
CONSISTS OF
OF CONDUCT,
CONDUCT, NOT
NOT OF
OF ITS
ITS CONSEQUENCES
CONSEQUENCES
BREACH
It isis of
of importance
importance to
to observe
observe that
that the
the "command"
"command" of
of society
society is
is
It
always
directed
to
the
act
of
and not
not to
to its
its consequences.
consequences. B's
B's breach
breach
always directed to the act of BB and
of duty
duty occurs
occurs at
at the
the time
time of
of his
his act
act or
or forbearance
forbearance to
to act,
act, not
not afterafterof
wards.
There
is
no
breach
of
duty e%
ex post
post facto,
facto, depending
depending upon
upon the
the
wards. There is no breach of duty
consequences. To
To act
act or
or not
not to
to act,
act, that
that is
is the
the question
question for
for B
B to
to
consequences.
answer. The
The name
name that
that we
we apply
apply to his
his act,
act, the
the epithets
epithets that
that we
we hurl
hurl
answer.
at B,
B, and
and the
the amount
amount of
of the
the penalty
penalty to
to be
be enforced
enforced against
against him
him may
may all
all
at
depend
upon
the
consequences
of his
his act.
act. But
But as
as already
already observed,
observed, aa
depend upon the consequences of
change in
in the
the amount
amount of
of aa penalty
penalty does
does not
not change
change the
the duty,
duty, and
and the
the
change
existence
of
duty
does
not
depend
upon the
the size
size of
of the
the penalty.
penalty.
existence of duty does not depend upon
Suppose that
that B
B shoots
shoots at
at A.
A. This
This is
is called
called an
an "assault"
"assault" at
at once;
once;
Suppose
it
will
be
called
"battery"
when the
the bullet
bullet hits
hits A,
A, and "homicide"
"homicide" when
it will be called "battery" when
A dies
dies aa week
week later.
later. The
The character
character of
of B's
B's act,
act, whether
whether physical
physical charA
acter
or
jural
character,
is the
the same
same whether
whether A
A dies
dies or not. B's
B's act is
acter or jural character, is
complete, finished.
finished. But
But the
the societal
societal action
action to
to be
be caused thereby
complete,
depends, for
for various
various reasons,
reasons, upon
upon the
the subsequent
subsequent event.
event. The
The act of
depends,
B
was
either
a
breach
of duty
duty when
when he
he fired
fired or
or it
it was
was not.
not. The same
B was either a breach of
is true
true if
if we
we regard
regard B's
B's act
act from
from the
the standpoint
standpoint of the law of
of torts
is
instead
of
the law
law of
of crimes.
crimes. B's
B's act
act is aa tort,
tort, irrespective of the
instead of the
amount of
of injury
injury to.
to A,
A, if
if there
there is
is any
any injury
injury at all. And yet the size
amount
of
the
compensatory
penalty or
sanction depends upon the subsequent
subsequent
of -the compensatory penalty
or sanction
suffering of
of A.
suffering
Duty
to use
care. It
It will
be observed
observed that
that in the foregoing case there
Duty to
use care.
will be
is
both
and aa civil
civil sanction,
sanction, involving affirmative
is both aa criminal
criminal and
affirmative action by
officers of
of the
law against
against B,
officers
the law
B, from
from the moment of his action. A much
harder case
for analysis
analysis can
field of
of negligence.
harder
case for
can be
be found
found in
in the
the field
negligence. Is
there aa legal
legal duty
duty on
be careful?
careful? Is it B's duty to A not to be
there
on B
B to
to be
be
negligent?
Able thinkers
thinkers have
negligent? Able
have certainly
certainly answered
answered these
these questions
questions in
the
negative. They
They say
B is
is legally
the negative.
say that
that B
legally privileged
privileged with respect
respect to A
to
as negligent
to be
be as
negligent as
as possible,
possible, provided
provided no
no harm
harm comes
comes to A, that B's
B's
only duty
the duty
duty not
only
duty to
to A
A is
is the
not to
to cause
cause him
him harm.
harm. It
It is difficult
difficult to
combat
combat these
these views;
views; and
and yet
yet an
an effort
effort will be made to do so.
We
We must
must first
first exclude
exclude the
the question
question of
of B's
B's "duty
"duty to society"
society"
(so
(so called).
called). Negligent
Negligent conduct
conduct is
is sometimes
sometimes made
made criminal
criminal irrespecirrespective
tive of
of consequences,
consequences, aa sanction
sanction being
being provided
provided that amply
amply establishes
establishes
the
the legal
legal duty
duty not
not to
to be
be negligent
negligent in
in the
the forbidden
forbidden way.
way. A test case
case is one
one
where
where we
we can
c~n assume
assume that
that B
B owes
owes no
no duty
duty whatever
whatever to society,
society, but
but
where
where A
A can
can get
get damages
damages if
if and
and only
only if
if he
he is hurt. Can
Can B
B commit
commit a
breach
breach of
of duty
duty to
to A
A by
by negligent
negligent conduct
conduct even
even though
though A is
is not
not hurt
hurt
at
at all?
all?
Suppose
that B
B shoots
shoots aa gun
gun where
where shooting
shooting is
is not
not forbidden
forbidden by
by law.
Suppose that
A
A is
is in
in the
the vicinity,
vicinity, as
as B
B knows.
knows. B
B negligently
negligently shoots
shoots in
in such
such aa direcdirection
tion that
that if
if A
A steps
steps forward
forward the
the bullet
bullet will
will hit
hit him,
him, and
and will
will not
not hit
hit him
him
HeinOnline -- 33 Yale L.J. 524 1923-1924
RIGHTS
RIGHTS AND
AND DUTIES
DUTIES
if he
he does
does not
not step
step forward.
forward. Should
Should we
we make
make B's
B's duty
duty not
not to
to aim
aim in
in
if
that direction
direction and
and pull
pull the
the trigger
trigger dependent
dependent on
on the
the subsequent
subsequent act
act of
of
that
A? B's
B's act
act is
is identical,
identical, whether
whether A
A steps
steps forward
forward or
or not.
not. He
He was
was
A?
equally negligent,
negligent, whether
whether A
A isis hit
hit or
or not. ItIt was
was A's
A's known
known position
position
equally
that made
made B's
B's act
act negligent,
negligent, and
and not
not A's
A's stepping
stepping forward
forward after
after B
B
that
pulled the
the trigger.
trigger. If
If A is
is hit,
hit, money
money damages
damages show
show that
that B
B committed
committed
pulled
breach of
of duty
duty to
to him when
when B
B acted.
acted. This
This was
was a duty
duty not
not to
to pull
pull the
the
aa breach
trigger as and
and when
when he did.
did. If
If A is
is not hit, there
there will
will be no
no money
money
trigger
damages. Can it be
be that
that neither
neither B nor
nor anyone
anyone else
else can
can determine
determine
damages.
whether or
or not
not he
he is committing
committing a breach
breach of
of duty until
until the subsequent
subsequent
whether
A?
fortuitous action
action of A?
fortuitous
Three solutions
solutions of
of the
the problem
problem suggest
suggest themselves:
themselves: (i)
(I) B's duty
duty
Three
to pull the
the trigger
trigger is
is dependent
dependent on
on matter
matter ex
ex post facto. If A steps
steps
not to
forward B's act was
was wrongful;
wrongful; if
if A
A does not step forward
forward B's act
act was
was
forward
not wrongful.
wrongful. During
During the seconds
seconds of
of time
time after
after firing no one can
can
not
tell whether
whether it
it was
was wrong
wrong or
or not. (2)
(2) B was
was under
under no
no duty
duty not
not to
to fire
tell
did; but after firing it was his duty
duty to run with the bullet and
as he did;
prevent it from hitting
hitting A. (3)
(3) B was under a duty
duty to A not to fire
prevent
when he did, irrespective
irrespective of whether
whether A is hit
hit or
or not.
as and when
Perhaps something
be said for each
each solution, and each
each has its
something can be
Perhaps
difficulties. The second
second seems
seems absurd;
absurd; and the third will
will be
be adopted
adopted
difficulties.
reasons following. The
The purpose
purpose of
of the societal
societal
rather than the first for reasons
command is the practical
practical one of influencing
condqct of B
B so as to
to
influencing the condtict
command
make the
the world a safer place for A. The command
command to B is to act with
proper care at the time when he has physical power
power to affect
affect results.
There would
cases where
where it would not be negligent
negligent to start
~tart
would indeed be cases
a body in motion, but where on learning of A's proximity it would
would be
be
negligent not to run after the moving
moving body and stop it. There is no
negligence, however, in not running after a bullet. The forbidden
negligence,
negligent act is the act that starts the bullet. The common form of
of
negligent
expression is that it was B's duty not to shoot, to act carefully and not
expression
negligently, a duty that is breached
tlle
breached when he acts. This is also the
determined
prevailing judicial form of expression.851' B's duty can be determined
conduct
ab initio
initio by comparing his proposed action with the standard of conduct
set by the law-that of the reasonably prudent man. The character
character
and the amount of the penalty
peIlalty may indeed be determined
determined by matters
facto
ex post
facto;
but
the
standard
is
determined,
not
by these ex p"Ost
post facto
standard
post facto;
consequences
consequences
in
the
specific
case,
but
by
previous
consequences
in
consequences
similar cases.
if the bullet does
Is there a penalty of any character or any amount if
no harm to A? The definition of legal duty adopted herein requires
some
our problem
for breach. The third solution of our
societal penalty for
some societal
of sanction
sanction
cannot
can find
find some sort of
cannot be accepted, therefore, unless we can
or
In the case under disit. In
case where A is not hit.
the case
or penalty, even in the
T. L.
L. R.
A.) 40 T.
(1923, C. A.)
CanalNa'lJ.
Nav. (1923,
v. Birmingham
Birmingham Canal
rob Edwards
Edwards 'lJ.
'Thus, in Job
I1Thus,
have
negligence you must haveto get
get negligence
"I appreciate that to
L. J., said: ''1
88, 92,
Scrutton, L.
92, Scrutton,
HeinOnline -- 33 Yale L.J. 525 1923-1924
YALE LAW
LAW JOURNAL
JOURNAL
YALE
cussion, physical
physical compulsion
compulsion lis
quite possible,
possible, even
even before
before A
A isis hit,
hit,
is quite
cussion,
are
not.
The
command
to
B
is
,to
forbear
to
although
money
damages
to
forbear
is
to
to
B
command
The
are
not.
damages
money
although
shoot,
and
it
would
be
physically
enforced
if
a
policeman
happened
to
be
to
be
happened
policeman
if
a
enforced
be
physically
shoot, and it would
near enough.
enough. A
A court
court of
of equity
equity would
would grant
grant an
an injunction
injunction ifif circumcircumnear
2 It is not feasible
332
stances
permitted.
feasible
to
send
out
a
policeman
with
with
policeman
a
out
to
send
not
It
is
stances permitted.
between
every
man
carrying
a
gun
in
the
woods
or
to
get
an
injunction
between
injunction
an
get
to
or
woods
in
the
gun
every man carrying a
rifle shots;
shots; but
but in
in the
the fortunate
fortunate cases
cases where
where the
the sanction
sanction happens
happens to
to be
be
rifle
duty to
to be
be careful,
careful, but
but II think
think that
that aa landowner
landowner has
has aa duty
duty to
to take
take reasonable
reasonable
aa duty
care not
not to
to allow
allow his
his land
land to
to' remain
remain aa receptacle
receptacle for
for aa thing
thing which
which may
may cause
cause
care
damage to
to his
his neighbors."
neighbors."
damage
In Burke
Bltrke v.
v. Cook (1923,
(1923, Mass.)
Mass.) 141
141 N.
N. E.
E. 585,
585, in
in defining
defining "gross
"gross negligence"
negligence"
In
the court
court says:
says: "It
"It amounts
amounts to
to indifference
indifference to
to present
present legal
legal duty
duty and
and to
to utter
utter
the
forgetfulness of
of legal
legal obligations
obligations so
so far
far as
as other
other persons
persons may
may be
be affected.
affected. It
It isis aa
forgetfulness
heedless and
and palpable
palpable violation
violation of
of legal
legal duty
duty respecting
respecting the
the rights
rights of
of others."
others."
heedless
It should
should be
be observed
observed that
that definition
definition depends
depends on
on usage. Where
Where usage
usage isis
It
doubtfull)r
desirable to
to mould
mould usage.
usage. By
By adopting
adopting aa particular
particular
xr conflicting, it is desirable
doubtful
definition we
we are
are not
not attaining
attaining any
any "ultimate
"ultimate reality"
reality" or
or the
the "nature
"nature of
of things."
things."
definition
We are
are merely
merely passing
passing judgment
judgment upon
upon what
what usage
usage renders
renders the
the best
best service.
service.
We
drawing the
the line, in
in the
the diminuendo of
of societal
societal sanctions,
sanctions, and
and restricting
restricting
In drawing
jural rights
rights and duties
duties to
to cases
cases on one side
side of the line, itit is
is not
not to
to be
be supposed
suppl)sed
jural
that it is
is a necessary
necessary line
line or
or an
an inevitable
inevitable classification.
classification. It
It is believed,
believed, howhowthat
useful to draw
draw the
the line
line and
and to adopt
adopt definitions
definitions so as to justify
ever, that it is useful
the greatest possible
possible amount
affil)unt of
of judicial
judicial and
and popular
popular usage,
usage, while
while at the
the same
the
avoiding vague
vague or conflicting
conflicting usage.
usage.
time avoiding
32
as the writer knows,
knows, this
this has not been
been established
established by
by decisions.
decisions. The
2 So far as
general principle
principle is well established,
established, however,
however, that threatened
threatened irreparable
irreparable injury
general
prevented by injunction. "It
"It is not
not necessary, before a writ
writ to prevent
prevent
will be prevented
a wrong can
can issue, that the
the wrong
wrong should
should actually
actually have
have been
been committed."
committed." Pop(1858, C. C. S.
s. I1.
n. N. Y.)
Y.) 4 Blatchf. 184, i87,
penhusen v.
v. N. Y.
Y. Comb Co. (1858,
i87 , Fed.
penhusen
Cas. No. II, 281.
See also Vicksburg Waterworks
(igol)
Vicksburg (1901)
Waterworks Co. v. Vicksburg
Cas.
(1834, Ch.) 3 Mylne &
185 U. S. 65,
22 Sup. Ct. 585.
585. In Earl
Earl Ripon v. Hobart
Hobart (1834.
65, 22
K. 169,
Lord Brougham
Brougham said:
said: "Pmceeding
practical views of human
human
"Proceeding upon practical
169, 176, Lord
imminent that rio prudent
affairs, the law will guard
guard against risks which are so imminent
prudent
person would incur them, although they do not amount to absolute certainty of
damage. Nay, it will go further, and according to the same practical
practical and
rational view, and, balancing
chances of
balancing the magnitude of the evil against the chances
its occurrence,)t
occurrence, it will even provide against a somewhat less imminent probability
in cases
it be done, would be vast and overwhelming."
cases where the mischief, should it
The storage of gunpowder or other dangerous substance where negligent acts
or natural processes are likely to cause irreparable
prevented by
irreparable injury will be prevented
Ves. 617; Hepburn
injunction. See Crowder
Hepburn v. Lordan
Lordan
(1816, Ch.) 19 Yes.
v. Tinkler
Tinkler (1816,
Crowderv.
688.
Ch.Div. 688.
28 Ch.
(1884) L. R. 28
Fletcherv. Bealey (1884)
(1865,
345; Fletcher
& M. 345;
Ch.) 22 Hem. &
(I865, Ch.)
C.153,
153, 160,
I6o, Lord Halsbury
14 A.
A. C.
H. L.)
L.) 14
Board (188g,
(1889, H.
v. Local
Local Board
In Cowper
Essex v.
Cowper Esse:>:
fears
that he once
once said 'the fears
said: "It is doubtless attributed
attributed to Lord Hardwicke that
nuisance.'
create aa nuisance.'
will not create
of
of mankind,
mankind, though they may be reasonable ones, will
is not now
it is quite clear that itit is
did say
say so it
But if
really did
Hardwicke ever really
if Lord
Lord Hardwicke
of aa large
large
existence of
reasonable. The existence
assumed to be reasonable.
fears are
are assu~ed
if the
the fears
the law, -if
be a
been held to be
collection
of explosive matter in the vicinity of aa town has been
collection of
neglithe fact that occasional neglinuisance.
recognizes the
of mankind
mankind recognizes
good sense
sense of
nuisance. The good
it
not think
think it
do not
life ....
human life.
incidents of human
of the ordinary
ordinary incidents
is one of
gence is
• •• I do
works
of sewage
sewage works
establishment of
of the
the establishment
complain of
who complain
to tell people
people who
answer to
is any
any answer
....
nuisance ••••
sewage works become aa nuisance
in
if and
and when the sewage
that if
neighborhood that
in their
their neighborhood
such wl)rks
injunction."
restrained by injunction."
works can be restrained
HeinOnline -- 33 Yale L.J. 526 1923-1924
RIGHTS AND
AND DUTIES
DUTIES
RIGHTS
practicable, itit isis also
also available
available for
for A's
A's benefit.
benefit. Neither
Neither the
the police
police nor
nor
practicable,
the
Chancellor
is
required
to
permit
B's
act
and
to
await
results
before
the Chancellor is required to permit B's act and to await results before
acting against
against B.
B. Even
Even in
in cases
cases where
where no
no policeman
policeman isis at
at hand
hand and
and aa
acting
bill
in
equity
is
impracticable,
there
is
one
sort
of
societal
penalty
that
bill in equity is impracticable, there is one sort of societal penalty that
infallibly exists
exists from
from the
the time
time of
of B's
B's negligent
negligent act
act and
and before
before AA isis
infallibly
hurt. BB becomes
becomes at
at once
once an
an insurer
insurer of
of AA against
against loss;
loss; he
he isis under
under aa
hurt.
conditional
duty
to
pay
loss
if
it
occurs.
As
already seen,
seen, the
the sanction
sanction
conditional duty to pay loss if it occurs. As already
of aa legal
legal duty
duty may
may consist
consist of
of some
some detrimental
detrimental change
change in
in jural
jural relarelaof
tions. The
The position
position of
of an
an insurer
insurer is
is detrimental
detrimental in
in fact
fact and
and in
in law.
law. A
A
tions.
promise to
to be
be an
an insurer,
insurer, creating
creating aa conditional
conditional duty
duty to
to pay
pay money,
money, is
is aa
promise
sufficient "consideration"
"consideration" in
in the
the law
law of
of contracts,
contracts, even
even though
though the
the event
event
sufficient
constituting
the
condition
may
never occur
occur and
and the
the money
money never
never have
have
constituting the condition may never
to be
be paid.
paid. It
It involves
involves what
what we
we call
call "risk."
"risk." That
That itit is
is detrimental
detrimental to
to
to
carry such
such aa risk
risk everyone
everyone knows.
knows. It
It causes
causes the
the bearer
bearer of
of the
the risk
risk to
to
carry
set aside
aside aa reserve
reserve fund,
fund, to
to re-insure
re-insure at
at considerable
considerable cost,
cost, to
to alter
alter his
his
set
investments. The
The instant
instant that
that B
B negligently
negligently shoots
shoots he
he becomes
becomes the
the
investments.
bearer
of
this
risk, this
this conditional
conditional duty, as
as aa penalty
penalty for
for his rash
rash act.
act.
bearer of this risk,
That it
it is
is aa real
real penalty,
penalty, his
his own
own conduct
conduct often
often at once
once attests.
attests. He
He
That
stands
aghast
at the
the chance
chance of
of harm
harm and
and the chance that he will be
stands aghast at
reduced to
to beggary
beggary by
by aa heavy
heavy judgment.
judgment. He
He runs
runs away, even before
reduced
he
knows
the
result of
of his
his act.
act. He
He knows
knows that
that he
he has
has done
done wrong.
he knows the result
The duty
duty of
of B
B to
to forbear
forbear from
from negligent
negligent acts
acts is
is not
not aa conditional
conditional
The
duty; it
it is
is instant
instant and
and unconditional.
unconditional. The time has come for instant
instant
duty;
action, without
without waiting
for aa single
single new operative fact. It
It is the paraction,
waiting for
ticular penalty
penalty called
called compensation
compensation to
to A that is conditional on a future
ticular
uncertain event.
event. This
uncertainty weakens
weakens the
the sanction, but it does
uncertain
This uncertainty
not wholly
wholly eliminate
eliminate it.
secondary and remedial duty to pay damnot
it. B's
B's secondary
ages to
to A
is indeed
indeed subject
subject to
precedent-A must be
ages
A is
to aa condition precedent-A
harmed;
but
B's
primary
duty
to
forbear
from
negligent shooting
harmed; but B's primary duty to forbear
shooting is
subject
to
no
condition
precedent,
nor
will
it
be
discharged
by any
subject to no condition precedent, nor will
condition
subsequent.
condition subsequent.
The
The reasoning
reasoning in
in the
the foregoing
foregoing problem
problem suggests
suggests an answer
answer for
for
another
question
in
the
law
of
negligence.
Suppose
that
B
another question in the law of negligence. Suppose that negligently
negligently
fired
that A
forward into
fired and
and that
A negligently
negligently stepped
stepped forward
into the bullet. Does
Does B
have
the
legal
privilege
of
harming
A
in
those
cases
where
A
is
have the legal privilege of harming A in those cases where is guilty
of
of contributory
contributory negligence?
negligence"? The
The answer
answer to this is no. Here
Here again
again
the
command
of
society
is
directed
the command of society is directed to B
B and his acts,
acts, not to conseconsequences.
quences. The
The particular
particular penalty
penalty called
called compensation
compensation to A
A may be
be conconditional
not
only
on
harm
to
A
but
on
ditional not only on harm to A but on the
the absence
abs~nce of
of contributory
contributory
negligence.
negligence. No
No doubt
doubt society
society will
will forcibly
forcibly prevent
prevent B's
B's act
act when
when pracpracticable,
without
regard
to
A's
contributory
ngeligence;
ticable, without regard to A's contributory ngeligence; and
and again
again B
B will
will
occupy
occupy the
the position
position of
of an
an insurer
insurer from
from the
the instant
instant he
he negligently
negligently shoots,
shoots,
his
his duty
duty to
to pay
pay damages
damages being
being conditional
conditional on
on A's
A's not
not negligently
negligently
contributing
(within
the
doctrine
contributing (within the doctrine of
of "the
"the last
last clear
clear chance").
chance").
HeinOnline -- 33 Yale L.J. 527 1923-1924