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Waldron on Special Rights in rem
Published online by Cambridge University Press: 13 April 2010
Extract
Jeremy Waldron's analysis of right-based arguments for private property makes use of the distinction drawn by H. L. A. Hart between special and general rights. Special rights, according to Hart, “arise out of a special transaction between individuals, or out of some special relationship in which they stand to each other.” As a result, “both the persons who have the right and those who have the corresponding obligation are limited to the parties to the special transaction or relationship.” Thus if A has consented to pay me $9.99 for the sale of a particular item, the right I have acquired over the $9.99, which is presently deposited in A's bank account, is a special right. Correlative to my right over the money she owes me, A now has a duty to pay her debt. The duty that has been generated is limited to the party of the special transaction, and so the duty belongs to no one but A. Thus, a special right is a right in personam (or ius ad rem). It is a right directed against a particular person and not against the world at large.
- Type
- Articles
- Information
- Dialogue: Canadian Philosophical Review / Revue canadienne de philosophie , Volume 33 , Issue 2 , Spring 1994 , pp. 183 - 190
- Copyright
- Copyright © Canadian Philosophical Association 1994
References
Notes
1 Waldron, Jeremy, The Right to Private Property (Oxford: Clarendon, 1988), p. 106Google Scholar. Compare with Hart, H. L. A., “Are There Any Natural Rights?” in Theories of Right, edited by Waldron, Jeremy (Oxford: Oxford University Press, 1989), pp. 77–90.Google Scholar
2 Hart, “Are There Any Natural Rights?”, p. 84.
3 Ibid., p. 88.
4 Hegel, following Kant, designates iura in rem as ‘real rights’ and iura in personam as 'personal rights', and traces this distinction back to Roman law (compare with G. F. W. Hegel, Philosophy of Right, par. #40). Richard Tuck, however, believes that “the notion of ius ad rem [or personal right] would have been utterly incomprehensible to the Roman jurist,” and attributes to Johannes Bassanius, a twelfth-century lawyer, the introduction of the distinction between iura in rem and iura in personam (Tuck, Richard, Natural Rights Theories: Their Origin and Development [Cambridge: Cambridge University Press, 1979], p. 14)CrossRefGoogle Scholar. Thomas Collett Sandars, while acknowledging that the distinction is first drawn by mediaeval jurists, thinks that it was drawn “on the analogy of terms found in the writings of the Roman jurists.” Accordingly, in his edition of Justinian's Institutes, Sandars defines them thus: “A real right, a ius in re, or, to use the equivalent phrase preferred by some later commentators, ius in rem, is a right to have a thing to the exclusion of all other men. A personal right, ius ad rem, or, to use a much more correct expression, ius in personam, is a right in which there is a person who is the subject of the right, as well as the thing as its object, a right which gives its possessor a power to oblige another person to give or procure, or do or not do something” (Sandars, Thomas Collett, The Institutes of Justinian [Westport: Greenwood, 1970], pp. xlviii–xlix).Google Scholar
5 Waldron, The Right to Private Property, p. 108.
6 Ibid., pp. 108–9.
7 Ibid., p. 140.
8 Nozick, Robert, Anarchy, State and Utopia (New York: Basic Books, 1974), p. 238.Google Scholar
9 Waldron, The Right to Private Property, p. 254.
10 Ibid., p. 109.
11 Ibid., p. 108.
12 Ibid., p. 267.
13 Ibid., p. 232.
14 Compare with Tully, James, A Discourse on Property: John Locke and his Adversaries (Cambridge: Cambridge University Press, 1980), p. 61CrossRefGoogle Scholar. The notion of inclusive rights has been studied by Macpherson, C. B. (See Democratic Theory: Essays in Retrieval [Oxford: Clarendon, 1973], pp. 123–25).Google Scholar
15 Waldron, The Right to Private Property, p. 156. Similarly, Macpherson recognizes that it is not possible simultaneously to maintain inclusive and exclusive general rights to property. His view is that, in order to remain consistent, Locke simply “transform[s] the natural right… to such property as needed for subsistence” into a natural exclusive right to unlimited appropriation (Macpherson, C. B., The Political Theory of Possessive Individualism [Oxford: Clarendon, 1975], p. 231, my emphasis)Google Scholar. Indeed, if labour is the absolute property of an individual, for which he owes nothing to society, then Macpherson is right in asserting that in Locke “the individual right of appropriation overrides any moral claims of the society” (ibid., p. 221). In other words, a person's general right to exclusive appropriation is addressed in rem, voiding other individual claims made on the basis of inclusive general rights.
16 Nozick, Anarchy, State and Utopia, p. 238.