Page:Some Fundamental Legal Conceptions as Applied in Judicial Reasoning.pdf/15

30 The strictly fundamental legal relations are, after all, sui generis; and thus it is that attempts at formal definition are always unsatisfactory, if not altogether useless. Accordingly, the most promising line of procedure seems to consist in exhibiting all of the various relations in a scheme of "opposites" and "correlatives," and then proceeding to exemplify their individual scope and application in concrete cases. An effort will be made to pursue this method:

Rights and Duties. As already intimated, the term "rights" tends to be used indiscriminately to cover what in a given case may be a privilege, a power, or an immunity, rather than a right in the strictest sense; and this looseness of usage is occasionally recognized by the authorities. As said by Mr. Justice Strong in People v. Dikeman:

"The word 'right' is defined by lexicographers to denote, among other things, property, interest, power, prerogative, immunity, privilege (Walker's Dict. word 'Right'). In law it is most frequently applied to property in its restricted sense, but it is often used to designate power, prerogative, and privilege, * * *." Recognition of this ambiguity is also found in the language of Mr. Justice Jackson, in United States v. Patrick:

The words "right" or "privilege" have, of course, a variety of meanings, according to the connection or context in which they are used. Their definition, as given by standard lexicographers, include [sic] "that which one has a legal claim to do," "legal power," "authority", "immunity granted by authority," "the investiture with special or peculiar rights."

And, similarly, in the language of Mr. Justice Sneed, in Lonas v. State: "The state, then, is forbidden from making and enforcing any law which shall abridge the privileges and immunities of citizens of the United States. It is said that the words rights, privileges and immunities, are abusively used, as if they were synonymous."