第5章 GENERAL DEFINITIONS, AND DIVISIONS(5)

Freedom is independence of the compulsory will of another; and in so far as it can coexist with the freedom of all according to a universal law, it is the one sole original, inborn right belonging to every man in virtue of his humanity.There is, indeed, an innate equality belonging to every man which consists in his right to be independent of being bound by others to anything more than that to which he may also reciprocally bind them.It is, consequently, the inborn quality of every man in virtue of which he ought to be his own master by right (sui juris).There is, also, the natural quality of justness attributable to a man as naturally of unimpeachable right (justi), because be has done no wrong to any one prior to his own juridical actions.And, further, there is also the innate right of common action on the part of every man, so that he may do towards others what does not infringe their rights or take away anything that is theirs unless they are willing to appropriate it; such merely to communicate thought, to narrate anything, or to promise something whether truly and honestly, or untruly and dishonestly (veriloquim aut falsiloquim), for it rests entirely upon these others whether they will believe or trust in it or not.* But all these rights or titles are already included in the principle of innate freedom, and are not really distinguished from it, even as dividing members under a higher species of right.

*It is customary to designate every untruth that is spoken intentionally as such, although it may be in a frivolous manner a lie, or falsehood (mendacium), because it may do harm, at least in so far as any one who repeats it in good faith may be made a laughing-stock of to others on account of his easy credulity.But in the juridical sense, only that untruth is called a lie which immediately infringes the right of another, such as a false allegation of a contract having been concluded, when the allegation is put forward in order to deprive some one of what is his (falsiloquim dolosum).This distinction of conceptions so closely allied is not without foundation; because on the occasion of a simple statement of one's thoughts, it is always free for another to take them as he may; and yet the resulting repute, that such a one is a man whose word cannot be trusted, comes so close to the opprobrium of directly calling him a liar, that the boundary-line separating what, in such a case, belongs to jurisprudence, and what is special to ethics, can hardly be otherwise drawn.

The reason why such a division into separate rights has been introduced into the system of natural right, viewed as including all that is innate, was not without a purpose.Its object was to enable proof to be more readily put forward in case of any controversy arising about an acquired right, and questions emerging either with reference to a fact that might be in doubt, or, if that were established, in reference to a right under dispute.For the party repudiating an obligation, and on whom the burden of proof (onus probandi) might be incumbent, could thus methodically refer to his innate right of freedom as specified under various relations in detail, and could therefore found upon them equally as different titles of right.

In the relation of innate right, and consequently of the internal mine and thine, there is therefore not rights, but only one right.

And, accordingly, this highest division of rights into innate and acquired, which evidently consists of two members extremely unequal in their contents is properly placed in the introduction; and the subdivisions of the science of right may be referred in detail to the external mine and thine.

C.Methodical Division of the Science of Right.

The highest division of the system of natural right should not be-as it is frequently put- into "natural right" and "social right,"but into natural right and civil right.The first constitutes private right; the second, public right.For it is not the "social state" but the "civil state" that is opposed to the "state of nature";for in the "state of nature" there may well be society of some kind, but there is no "civil" society, as an institution securing the mine and thine by public laws.It is thus that right, viewed under reference to the state of nature, is specially called private right.

The whole of the principles of right will therefore fall to be expounded under the two subdivisions of private right and public right.