That Legal Personality of a Human Being

Legal Personality of a Human Being

The idea that a man could have a right which, as natural, inalienable, and indefeasible, had some kind of sanctity and validity transcending that of ordinary positive law led philosophers to speculate about what kind of thing a right might be. What sort of assertion is it to say that X has a right to R, and what kind of criteria would have to be satisfied for such a proposition to be true?

Juristic theories of rights. Many philosophers and jurists have treated questions about the nature and criteria of rights as if they asked what facts were referred to when one said "X has a right to R." Spinoza, for instance, tried to give a consistent account, in terms of power, of all instances where rights were ascribed. Thus a man's natural right amounted to the power he could exercise over another; a sovereign's right was the power he exercised by virtue of the combined power of all the individuals who were prepared to support him; and the individual's legal rights were the powers he had by virtue of the sovereign's support in upholding the law. Again, T. H. Green described an individual's right as "a power of acting for . . . what he conceives to be his own good, secured to an individual by the community."

A right, however, is not and does not necessarily imply a power (except, perhaps, in the sense of a legal competence like, for instance, the power to make a will). For a man may have rights he is powerless to enforce if the courts are corrupt or his opponents too powerful to risk offending. One might say perhaps that his rights are hypothetical powers -- what he would be able to achieve if he were able and chose to appeal to the courts and if the courts acted according to the law. But this would be the same as saying that his rights are the powers he would enjoy if he had his rights. Rights, in other words, may explain why persons have the powers they do, but they are not identical with these powers.

A right is commonly said (by Paul Vinogradoff, for instance) to be a claim upheld by the law. As in the case of "power," however, there is an ambiguity between the positive and the normative sense of "claim." If by a claim were meant a demand actually made, it might be objected both that men possess rights to things they never claim, and that it makes sense to talk of the rights of infants incapable of demanding anything. On the other hand, "to have a claim," as against "to make a claim," means that if one were to make a demand, it would be justified or, at least, defensible. But as with "power," this would then locate the concept not in the language of description but in that of norms. Vinogradoff may well be right in saying that ...