Page:Some Fundamental Legal Conceptions as Applied in Judicial Reasoning.pdf/18

Rh for the latter is of the same content or tenor as the privilege; but it still holds good that, as regards Y, X's privilege of entering is the precise negation of a duty to stay off. Similarly, if A has not contracted with B to perform certain work for the latter, A's privilege of not doing so is the very negation of a duty of doing so. Here again the duty contrasted is of a content or tenor exactly opposite to that of the privilege.

Passing now to the question of "correlatives," it will be remembered, of course, that a duty is the invariable correlative of that legal relation which is most properly called a right or claim. That being so, if further evidence be needed as to the fundamental and important difference between a right (or claim) and a privilege, surely it is found in the fact that the correlative of the latter relation is a "no-right," there being no single term available to express the latter conception. Thus, the correlative of X's right that Y shall not enter on the land is Y's duty not to enter; but the correlative of X's privilege of entering himself is manifestly Y's "no-right" that X shall not enter.

In view of the considerations thus far emphasized, the importance of keeping the conception of a right (or claim) and the conception of a privilege quite distinct from each other seems evident; and more than that, it is equally clear that there should be a separate term to represent the latter relation. No doubt, as already indicated, it is very common to use the term "right" indiscriminately, even when the relation designated is really that of privilege; and only too often this identity of terms has involved for the particular speaker or writer a confusion or blurring of ideas. Good instances of this may be found even in unexpected places. Thus Professor Holland, in his work on Jurisprudence, referring to a different and well known sort of ambiguity inherent in the Latin "Ius," the German "Recht," the Italian "Diritto," and the French "Droit,'"—terms used to express "not only 'a right,' but also 'Law' in the abstract,"—very aptly observes:

"If the expression of widely different ideas by one and the same term resulted only in the necessity for * * * clumsy"