quaesitum is defined as quod, speciali titulo acquisitum, non ex sola libertate naturali obtinet.1

The historical and utilitarian schools between them have demolished the idea of legal rights apart from the State or organised society, but there still remains the question whether rights within the State can be properly described as "natural," "guaranteed" or "acquired." It is not surprising that there are differences of opinion on the matter, for the whole conception of a legal right is itself being dismissed by some from juristic thought as a "metaphysical hypothesis "2; or is described as at the best merely a piece of "social machinery" without any absolute worth. But it seems to be agreed by those writers who are content to make the most of the terms actually in common use that the term "right," in its strictest sense, is the correlative of duty-an affirmative claim against another or others.1

Human personality is itself a check to the encroachments of the State upon the individual; for, though restrictions must in the common interest be placed upon his potential freedom of action, a certain irreducible minimum must be left over to him if the State itself is to continue. It is inferred from this that a man has a right to “natural liberty." Such a right is however purely negative; it is nothing but the absence of a duty and is not an affirmative claim. Consequently Salmond, like Hobbes, speaks of "liberties "5 in this connection, and Hohfeld, less satisfactorily, of "privileges. But it has been doubted whether a matter of fact acquires jural

116

1 See Mayer, op. cit., I. 12; also Burlamaqui, op. cit., 73. Blackstone of course treats property as absolute."

""

2 Duguit, Traité de droit constitutionnel, I. 64 ff., 130.

3 Pound, Introduction to the Philosophy of Law, 97; cf. Buckland, op. cit., 58.

4 Hohfeld, Fundamental Legal Conceptions, 71; Salmond, Juris

prudence, § 74.

Op. cit., § 75.

6

Op. cit., 48, 60.

significance simply because it is left unmolested. "The fact that I can do as I please until some superior force or irremovable obstacle hinders me is a merely natural fact, and law has nothing to say to it."1

The so-called guaranteed right is often something more than merely negative: a demand for free elementary education is not a demand to be left alone. It is "natural" only in the sense that a society has come to the conclusion that its recognition is essential to the common weal. It is guaranteed in that the forces of public opinion are marshalled behind it how far the guarantee is legally effective depends, as Dicey has shown, upon the attitude of the courts of the State to the Constitution and to enactments of the ordinary legislative body passed in violation of it. Where the provisions of the Constitution will be enforced against the State organs, there is no great harm in treating the State as bound so long as the Constitution is allowed to remain unaltered for law is essential to the State and the State can only act through human agents.

But some guaranteed rights are no more than vague enunciations of general principles of good government, e.g. equality before the law. What is the relation of these principles to concrete claims, of rules of law to the rights flowing from them? It is in the attempt to solve this question that the idea of the ius quaesitum has received much attention,

1 Pollock, First Book of Jurisprudence, 62. See also Kohler, Philosophy of Law (trans.), 84, "the idea of a claim against an innocent passer-by who has not disturbed me at all is monstrous." Cf. Holmes, Common Law, 214. See Herd v. Weardale [1915] A.C. 67.

"

* The German Constitution is particularly rich in such declarations. § 164 declares that the "independent middle class in agriculture, industry and commerce shall be encouraged by legislative and administrative measures. Jellinek displays the faith of the continental jurist in written constitutions when he declares that to Englishmen the "rule of law" is "objektives nicht subjektives Recht," a body of general principles of law, not a system of concrete rights. Die Erklärung, 39.

particularly in connection with the retrospective operation of statutes.1 To Savigny a definite person and a special title are the essential characteristics of acquired rights. He distinguishes such rights from the "abstract powers" of all men or all of a class of men the natural liberty of earlier writers; and from mere expectations grounded on existing statutes, which are liable to be defeated by new statutes. Legislation making duelling a crime or altering the canons of inheritance does not take away acquired rights: on the other hand no one should be prejudiced by being deprived of a concrete right based on a legal transaction.2 Ihering, unlike Savigny, bases the conception of a legal right on the material element, the interest, rather than on the formal element, the will. But he admits that all legally protected interests are not rights. A protected interest, e.g. one safeguarded by a protective tariff on imports, may be merely the reflex-action (Reflexwirkung) of a rule of law and not a true right. For the test Ihering is driven back to the formal element. The discussion still continues but jurists are far from agreement. It is, however, generally admitted that rules as to the form of the government and those relating to judicial procedure do not create "acquired" rights, so that many guaranteed rights are not within this class. Beyond this all is vague. In general erworbene Rechte or droits acquis seem to be identical with rights in the strict sense: but the failure to demonstrate the process by which legal principles result in concrete claims, or, in the German phrase, by which objective law becomes a subjective right, does not diminish the difficulty of giving a satisfactory definition of a legal right. This

1 Meyer, Der Staat u. die erworbenen Rechte; also Lassalle, op. cit., I. 61, 159.

2 System, viii. 384-6.

3 Geist d. römischen Rechts, III. 328. "Recht " is "Selbstschutz des

Interesses."

has led Duguit to abandon the whole conception of a legal right: all he will admit is that law is social in origin but individual in application.1

The conclusion seems to be that "natural" rights are not rights at all, but merely physical powers, that "guaranteed" rights may or may not be guaranteed, and that, whatever "acquired" may mean, the word is equally applicable to all rights; and the consideration of the development of this aspect of the theory of rights may lend support to the view that the doctrine of the sovereignty of the State, like that of the natural rights of man,2 is only a phase in the evolution of legal ideas.

1 See his Traité de droit constitutionnel, I. 130-145; and Planiol, Droit Civil, §§ 241-243. The English word "vested" is more restricted than "acquired," for it is also used in opposition to "contingent." The upholders of the "will" theory of rights seem now to lay stress on the will of the "legal order "rather than on that of the individual entitled to the right. See Windscheid, Pandekten (ed. Kipp), I. § 37. Dernburg, Pandekten, I. § 33.

2 Kohler, op. cit., 242.

Roman Law in Modern Cases in

English Courts

BY DAVID T. OLIVER, LL.M.

FELLOW AND LECTURER OF TRINITY HALL, AND MONRO LECTURER IN ROMAN-DUTCH LAW AT GONVILLE AND CAIUS College.

A RECENT Writer1 has said that "the whole story of the influence of the Corpus Juris upon the growth of English Law throughout its development, has yet to be written"; and Mr. (now Lord Justice) Scrutton, in concluding his Yorke Prize Essay2 which has gone far to supply the material for the story, makes a similar remark. Much new light is being thrown on this subject by Professor Holdsworth in his great History of English Law, but a full estimate of Roman influence cannot be made until the earlier authorities and reports have been subjected to a detailed and critical examination. Whether the results obtained would repay the labour of investigation may, perhaps, be a matter of doubt. Such an examination, however, would certainly show that much Roman Law is "secreted in the interstices of procedure," even in the Common Law system.

It is of course admitted that much of the law administered in the Ecclesiastical Courts is of Roman paternity, although the filiation is indirect through the medium of the Canon Law, and in modern times it has become mainly statutory. A considerable part of the law administered in Admiralty Courts is also, either directly or indirectly, derived from Roman Law, but this also has, in modern times, been either

1 W. Senior, Doctors' Commons and the Old Court of Admiralty. 2 The Influence of the Roman Law on the Law of England.