BOOK II. JUS. OF RIGHTS AND OBLIGATIONS. 105. CHAPTER I. RIGHTS IN GENERAL. WE have seen (94) that Rights are defined by Positive Laws; but we have seen also, that according to the Conception of Rights (78), they are to be conformable to the Supreme Rule of human action. The Law assigns to each person his Rights; but the Law also aims at giving to each person what it is right he should have. legally fixed, is also intended to be morally right. Jus has for its object to conform to the idea of Justice. That which is ་ Hence it appears as if Law must depend upon Morality; whereas we have previously stated (90) that we must treat of Rights before we treat of Duties. We must explain this apparent inconsistency. Law must be considered, in the first place, as positively and peremptorily fixed; it judges everything according to its own legal Rules and Definitions. But these Rules and Definitions may change from time to time; and in the course of the moral cultivation and education of man, of which we have spoken (104), do change. Men change their Rules, with the view of making them more nearly conformable to the Supreme Rule of human action. They endeavour to determine Rights more rightly; to make Laws more just. And thus, for the moment, at any time, Morality depends upon Law; but in the long run, Law must be regulated by Morality. The Morality of the individual depends on his not violating the Law of his nation; but the National Law must be framed according to the National view of Morality. The moral offence of coveting my neighbour's goods, as well as the crime of stealing, extends to everything which the Law determines to be his goods. But the Law which gives him everything, and leaves me to starve, may be an unjust Law; and if so, may be altered by the progress of time, and by the improved Morality of the legislative body. 106. Hence, in the first place, we must consider the Law as fixed and given; and this we shall do in the present Book. But even in presenting the Law under this aspect, we shall find indications of that moral aim, which, as we have said, the Law has. We shall often find expressions of the Legislator, or of the Jurists who comment upon the Law, which imply that they could not conceive a Law which did not aspire to be just. We shall find Reasons given for Laws, all of which depend upon the Supreme Reason for a Law, that it is right. 107. Of the Systems of Law actually established in the world, two especially deserve our notice, and may throw light upon our subject, if we follow them into some detail; namely, the System finally established in the ancient world, and the System actually established in our own country. The former Body of Law was that which prevailed when the whole civilized world was one single State; the latter is that which prevails in the State in which we live. I speak of the Roman Law, and the English Law. These two Systems of Law are those in which we are most interested, as past and present realities. They are the Laws of two nations, both of them eminent for the clearness of their jural perceptions, and their vigorous habits of jural action. We may also take some examples of Laws from the Laws of the Jews; for these are of importance, in consequence of their antiquity, their authority, and their influence upon Christians. And for the reason just mentioned, we shall take into our review some of the Comments of Jurists, as well as the Decrees of Legislators. 108. In order conveniently to survey the legal Definitions of Rights, we must divide Rights into their kinds, and arrange them in order. The Division and Arrangement of Rights in different Codes, and different Jurists, have been various. We shall have before us the Division and Arrangement which are most suited to our purpose, if we take those Classes of Rights to which we have been led by our survey of the Springs of Human Action. Of these Classes, the principal are, as we have said (80), the Rights of Personal Security, the Rights of Property, the Rights of Contract, the Rights of Marriage, and the Rights of Government. To these we might add, as has been said, other Rights, arising from less simple and universal springs of action, as the Right to Freedom of Opinion, and the Right to Reputation. But these are less important; and we shall for the most part confine our attention to the Fire Principal Classes of Rights which we have mentioned. In the Roman and in the English Law, all the five Classes of Rights are, for the most part, clearly and fully established; and the same is the case in all communities, in which Law has made any considerable advance. In rude and turbulent conditions of Society, it may happen that some of these Rights are very imperfectly defined, and very precariously held; or it may be, that from a portion of the community some of them are withheld altogether. Thus, in countries where Slavery exists, the Slave has not the Rights of Personal Security. The constraint which Slavery implies, is of itself an entire violation of the Rights of Security. And the Slave is further |