Page:The Green Bag (1889–1914), Volume 18.pdf/85

 THE GREEN BAG

THEORY AND DOCTRINE OF TORT1 BY MELVILLE M. BIGELOW §i. LEGAL RIGHT judge and jury, in a particular case may THE sphere of action of a citizen, in his decide. As a matter of fact, most cases in relation to the law, is found in his the higher courts are cases in which the rights, privileges in the sense of permis judges must decide the question of right. sions, and duties. What a citizen may law Such indeed, is the complexity of human fully do is determined by his legal rights affairs that even "natural" rights, so-called, and privileges; what he must do is deter and rights already strictly defined, may be mined by his legal duties. These duties, drawn in issue so as to raise a question however, only correspond to the rights and which must wait upon the decision of the privileges of others; hence a man's rights judge in regard to the law of it. But it is important to know what governs and privileges, limited as they are by like the judge; for he is not permitted to decide rights and privileges in others, express the a case arbitrarily. What then does, in fact, extent of his sphere of action as a citizen or at least, in theory, influence and deter under municipal law. But it will be found mine the decision in regard to the particular important to consider duties independently, right? Some of the influences, it is plain, in any endeavor to state the law of torts; may be of a personal or a sub-legal nature, indeed, it would be fairly out of the question such as the judge's own views of political to state the law adequately in terms alone economy, politics, ethics, the pressure of of legal right. public opinion,1 or whatever else of the kind It is of first importance then to get a the case may suggest. Such things must clear conception of the meaning in law of always be taken into account. These, how right, privilege, and duty, as these terms ever, are usually (though not always) minor are to be understood. Legal rights are of influences. The greater influence, the para two orders; those of the first or highest order mount influence, in cases in which it comes are available ordinarily as a general ground of action or defense, those of the second into play, may be called the influence of order only as defense, or as a very Jimited the dominant force in society, so far as there ground of action. The term "legal right" is such an influence and in proportion to its is, however, commonly used of rights of the power; law being conceived to be the re first order, while those of the second are sultant of the dominant force in conflict commonly called, or at any rate treated, as with other social forces — the dominant privilege in the sense of mere permission. force as deflected by the conflict. The dominating force in society may be That distinction will be followed in this equality of dealing and of access to the op book; the present section will deal with portunities of life, as (apart from slavery legal right accordingly, as right of the first and the position of the dependent classes) order, to be called the higher legal right, or it was in America until in recent times; it full legal right, or simply legal right. may be inequality, as it is now; it may be What is meant by "legal right?"1 The some more special force, as has been the general answer is, whatever the judge, or 1 In advance of publication in the 8th ed. of the writer's work on the Law of Torts to be con cluded in the March number of the GRBEN BAG. 2 Several paragraphs are now taken in sub stance from Lecture III in Centralization and the Law; that lecture being by the present writer.

1 See Dicey, "Law and Public Opinion in England." According to Professor Dicey's ad mirable work, public opinion influences the law. This differs from the resultant of the dominating force, spoken of infra, in that the latter, as here conceived, is the law.