Page:Some Fundamental Legal Conceptions as Applied in Judicial Reasoning.pdf/19

34 ", or obviously inaccurate paraphrases, no great harm would be done; but unfortunately the identity of terms seems irresistibly to suggest an identity between the ideas expressed by them."

Curiously enough, however, in the very chapter where this appears,—the chapter on "Rights,"—the notions of right, privilege and power seem to be blended, and that, too, although the learned author states that "the correlative of * * * legal right is legal duty," and that "these pairs of terms express * * * in each case the same state of facts viewed from opposite sides." While the whole chapter must be read in order to appreciate the seriousness of this lack of discrimination a single passage must suffice by way of example:

"If * * * the power of the State will protect him in so carrying out his wishes, and will compel such acts or forbearances on the part of other people as may be necessary in order that his wishes may be so carried out, then he has a 'legal right' so to carry out his wishes."

The first part of this passage suggests privileges, the middle part rights (or claims), and the last part privileges.

Similar difficulties seem to exist in Professor Gray's able and entertaining work on The Nature and Sources of Law. In his chapter on "Legal Rights and Duties" the distinguished author takes the position that a right always has a duty as its correlative; and he seems to define the former relation substantially according to the more limited meaning of "claim." Legal privileges, powers, and immunities are prima facie ignored, and the impression conveyed that all legal relations can be comprehended under the conceptions, "right" and "duty." But, with the greatest hesitation and deference, the suggestion may be ventured that a number of his examples seem to show the inadequacy of such mode of treatment. Thus, e. g., he says:

"The eating of shrimp salad is an interest of mine, and, if I can pay for it, the law will protect that interest, and it is therefore a right of mine to eat shrimp salad which I have paid for, although I know that shrimp salad always gives me the colic."

This passage seems to suggest primarily two classes of relations: first, the party's respective privileges, as against A, B, C.