Natural Rights on the Threshold of the Scottish Enlightenment

9. Natural Rights and Agreements

77 u chapter 9 u Natural Rights and Agreements1 [Pufendorf distinguished between absolute duties which every man owes to every man (not to harm others, to recognize others as equals, and to be useful to others, so far as it is convenient) and hypothetical duties, which presuppose particular conditions or arrangements. Carmichael comments:] Our author’s method relies heavily on the distinction [between “absolute ” and “hypothetical” duties]. But he does not explain it with sufficient clarity nor apply it at all skillfully. And since there is the same variety of obligations or duties as of rights to which they correspond, in place of this distinction one may substitute the analysis which we give in the next note [I.9.1.i] and again in the appendix annexed to this treatise.2 [I.6.1.i] Kinds and creation of rights To achieve a clearer conception of the nature of agreements, we must argue some central points on a broader basis. In the first place we must recognize that perfect rights which belong or may belong to individual men, are either natural or adventitious, depending on the foundations on which they rest. Nature herself has endowed each man with natural rights; adventitious rights arise from some human action or other event. Among natural rights are the right of life, the right of physical integrity, the right of 1. From the notes to bk. I, ch. 9, “On the Duty of Parties to Agreements in General ”; bk. I, ch. 10, “On the Duty of Men in the Use of Language”; and bk. I, ch. 11, “On the Duties Involved in Taking an Oath.” 2. See ch. 23, below. 78 natural rights chastity, and the right of simple reputation; I mean the right to have all these things. I add the liberty, or power, of ordering one’s actions as one pleases within the broad limits of the common divine laws, as well as the closely related ability to use in common things which are by nature positively common , as also of acquiring any other adventitious rights by appropriate means. All of these are sanctioned by the general precept of natural law, by which every man is forbidden from violating any of these rights in another, that is, of attacking without a special foundation of right any of the good things given above which belong to someone else. Adventitious rights are either real or personal. Real rights are concerned with having, possessing, using, etc., some thing (rem); personal rights, with obtaining some thing or service from another person. To real rights, equally as to natural rights, there corresponds from the other side an unlimited obligation not to disturb the owners of these rights in the exercise of them. And to personal rights there correspond limited obligations to render to individuals those things or services which they have a right to require of us. Both real and personal rights are created, transferred, and abolished in various ways. Among the many ways by which personal rights are created or abolished, and by which rights of both kinds are transferred from one man to another, one stands out as particularly prominent. This is mutual consent on the part of the person by whom a right is transferred and on the part of the person by whom it is acquired, both being signified by appropriate signs. I say is transferred, because the actual creation and abolition of a personal right lies in a kind of transfer. For a perfect personal right (which is the only thing that we are speaking of here)3 is simply a certain particle of a man’s natural liberty which is transferred to another man by some act or event, and takes on the character in this man of a personal right valid against the other, by force of which he may require him to do or not to do anything which, in his judgment , it is in his power to do or not to do. That same right, when it returns 3. It will be argued in the following chapter that real rights (rights to property) are perfect rights which are not created by agreement or individual consent: see below, ch. 10, pp. 92–96. natural rights and agreements 79 to its natural subject and is consolidated with the rest of his natural right, loses its character as a personal right and recovers the name of natural...