Introduction on Jurisprudence

January 31, 2022

The goal of justice is security from injury. A man may be injured as=

  1. A man

As a man he may be injured in his body, reputation, or estate.

  1. A member of a family

As a member of a family he may be injured as=

  • a father
  • a son
  • a husband or wife
  • a master or servant
  • a guardian or pupil= This is considered as a family relation until the pupil can take care of himself.
  1. A member of a state

As a member of a state, a magistrate may be injured by disobedience, or a subject by oppression, etc.

A man may be injured=

  • In his body by wounding, maiming, murdering, or by infringing his liberty
  • In his reputation by falsely representing him as a proper object of resentment or punishment, as by calling him a thief or robber, or By depreciating his real worth and trying to degrade him below the level of his profession. A physician’s character is injured when we try to persuade the world he kills his patients instead of curing them.

He loses his business by such a report. However, we do not injure a man when we do not give him all the praise due to his merit.

We do not injure Sir Isaac Newton or Mr. Pope when we say=

  • that Newton was no better philosopher than Descartes, or
  • that Mr. Pope was no better poet than the ordinary poets of his time.

By these expressions we do not bestow on them all the praise that they deserve. Yet we do them no injury, because we do not throw them below the ordinary rank of men in their own professions.

Natural rights are those which a man has to the preservation of his body and reputation from injury. Civilians call them ‘iura hominum naturalia’. In his estate His rights to his estate are called acquired or ‘iura adventitia’.

These are of two kinds=

  1. Real

A real right is that whose object is a real thing and which can be claimed aquocumque possessore. Examples are are all possessions, houses, furniture.

  1. Personal

Personal rights are those that can be claimed by a lawsuit from a person, but not aquocumque possessore. Examples are all debts and contracts.

The payment or performance of these can be demanded only from one person. If I buy a horse and have him delivered to me, though the former owner sell him to another, I can claim him a quocumque possessore; but if he was not delivered to me I can only pursue the seller.

The four kinds of real rights are=

  • Property
  • Servitudes
  • Pledges
  • Exclusive privileges

Property is our possessions, which if any way lost, or taken from us by stealth or violence, may be redemanded a quocumque possessore.

Servitudes are burdens on another person’s property. I may be free to pass through a field belonging to another which lies between me and the highway,

If my neighbour has plenty of water in his fields and I have none in mine for my cattle, I may have a right to drive my cattle to his field.

Such burdens on the property of another are called servitudes. These rights were originally personal. When the adjacent property burdened with them passed through many hands, many lawsuits were needed to acquire them. This caused trouble and expense.

This induced legislators to make them real and claimable a quocumque possessore. Afterwards, the property was transferred with these servitudes upon it.

Pledges, which include all pawns and mortgages, are securities for something else to which we have a right. The laws of most civilized nations=

  • have considered them as real rights, and
  • give a liberty to claim them as such.

An example of exclusive privileges is the privilege of a bookseller to sell a book for a certain number of years and to hinder anyone else from selling it during that period. These rights are mostly creatures of the civil law. Though a few of them are natural.

An example is in a state of hunters before the establishment of civil government. If a man has chased a hare for some time, he has an exclusive privilege to hunt her. He can hinder anyone else from the hare with a fresh pack of hounds.

An heir also has an exclusive privilege of hindering anyone from his supposed inheritance while he is deliberating whether to take it and pay off the debts it is burdened with.

Personal rights are of three kinds, as they arise from contract, quasi contract, or delinquency.

The foundation of contract is the reasonable expectation, which the person who promises raises in the person to whom he binds himself; of which the satisfaction may be extorted by force.

Quasi contract is the right which one has to a compensation for necessary trouble and expense about another man’s affairs.

  • If a person finds a watch in the highway, he can claim a reward to defray his expenses in finding out the owner.
  • If a man lent me a sum of money, he has a right to the sum and the interest also.

Delinquency is founded on damage done to any person, whether through malice or culpable negligence. A person has a right to claim these only from a certain person.

The objects of these seven rights make up the whole of a man’s estate.

The origin of natural rights is obvious. Nobody doubts that a person has a right to=

  • have his body free from injury and
  • his liberty free from infringement unless there be a proper cause.

But acquired rights such as property require more explanation. Property and civil government very much depend on one another. The preservation of property and the inequality of possession first formed it.

The state of property must always vary with the form of government. The civilians begin with considering government and then treat of property and other rights. Others who have written on this subject begin with property and rights. They then consider family and civil government. There are advantages to each of these methods. But the advantage of civil law is preferable on the whole.