Part 1: Justice

Introduction

 

  • 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.
    2. 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.
    3. 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:
    1. In his body
      1. By wounding, maiming, murdering, or
      2. By infringing his liberty
    2. In his reputation
      1. By falsely representing him as a proper object of resentment or punishment, as by calling him a thief or robber, or
      2. By depreciating his real worth and trying to degrade him below the level of his profession.
        • A physician’s character is injured when [6] 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’.
    3. In his estate
      1. His rights to his estate are called acquired or ‘iura adventitia’.
      2. These are of two kinds:
        1. Real
          • A real right is that whose object is a real thing and which can be claimed a quocumque possessore.
          • Examples are are all possessions, houses, furniture.
        2. Personal
          • Personal rights are those that can be claimed by a lawsuit from a person, but not a quocumque 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:
    1. Property
    2. Servitudes
    3. Pledges
    4. 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, [7]
    • 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.

[8]

  • 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 quite evident.
    • 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.

 

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