IIc: Rights of the Individual (Transmission of Acquired Rights)
In release-and-reoccupation and in contracts, acquired rights sometimes undergo modification in the process of transmission, due to the interaction or at least relation of the two parties involve. However, it is also possible for rights to undergo modification due to the acts of a single party. As Rosmini notes, since a right is itself a relationship (between the one with the right and the one with the duty corresponding to the right), this can occur in two ways, depending on which individual engages in the modifying act, either the person with the acquired right or the person with the relevant duty.
Someone who has a right can only do two things affecting his acquired right on his own. He can abandon the right or destroy his title ot it, or he can offer or promise it to someone else. The first is only a modification of a right in a very loose sense, and is not what Rosmini has in mind. The second obviously modifies the right, because to offer your acquired right is to make for the person to whom it is offered a right to accept the offer (which Rosmini thinks is, strictly speaking, a particular form of jural freedom with respect to that particular right). If they accept it, you have an ordinary transmission of right, but if they don't, you have, as we say, put the offer of that right on the table as something they freely could have accepted.
Far more extensive and significant are the modifications of rights that arise on the side of those who are obligated to respect those rights. Such an obligation is a negative one -- it's just the requirement not to injure -- so one might wonder how it could create a channel for modifying another person's right. Rosmini begins by distinguishing two kinds of freedom: innocuous freedom, through which we acquire rights, and jural freedom, through which we exercise them. Innocuous freedom can involve four kinds of actions:
(I.1) Acts with which we occupy anything that is free. These don't modify another person's rights; you just restrict the innocuous freedom of others, since now they have to work around your occupancy.
(I.2) Acts with which another's good are used, without causing any problem for the one with the right. These also don't modify another person's rights.
(I.3) Acts of beneficence without harm to the benefactor. These do create duties, but in general create moral duties of gratitude, not jural duties, the kinds of duties corresponding to rights.
(I.4) Acts of beneficence which cause some harm to the benefactor, thus in some way infringing on another's right, but which are undertaken out of necessity. These do create a modification of rights, but forming a jural obligation of recompense in the beneficiary; since the beneficiary has the jural duty of recompense, the benefactor has the right to the recompense.
In the case of jural freedom, there are two kinds of actions:
(II.1) Acts exercising one's own right. These can only modify another's rights with their consent, in ways that involve transmission of rights.
(II.2) Acts with which another's right is unknowingly disposed of. For instance, if you accidentally carry off something that belongs to someone else, you have a duty to restore it, and the person to whom it belongs has a right to have it returned.
There is, however, another kind of modification of rights that can occur due to the actions of a single person, namely, when someone engages in a kind of wrongdoing that violates the rights of others. Such a person is not acting out of either innocuous freedom or jural freedom, but are violating their own duties. These are modifications associated with punishment and penalty. These modifications open up functions of the already existing acquired rights associated with defense of the right. As Rosmini puts it, "Harmful acts, therefore, provide an occasion for an owner to exercise certain functions of his right over which he certainly possessed moral power prior to the injury, but which depended upon the injury for their actuation" (p. 424). These can sometimes lead to further modifications under different conditions, as the person engaging in the harm develops the secondary obligation to desist from harm, to make reparation and recompense for injury, and so forth, each of which draws out a secondary right, all of which are "activated functions of my right" (p. 424). There are two general such functions: defense and satisfaction. The first is concerned with what we are usually thinking of when we say that a right is inviolable or that a right should not be violated; the second with the fact that when you violate another's right, you owe them for it.
All of these take on an interesting aspect when one turns to societies. Societies, insofar as they function as individuals, have individual rights, just as their members do. Civil society, for instance, has the same rights of occupation and so forth that we have been discussing; it is in this sense a jural person. As such, its rights have the latent functions of defense and satisfaction, and when those rights are violated, this modifies its rights so as to develop a right to defend itself and receive reparation and recompense for the violated rights. Rosmini is very insistent that considered as a jural person, civil society's individual rights work exactly the same, and are no more fundamental or important, than the individual rights of its members. (Anything else is despotism, although it has to be remembered that this is only when talking about individual rights, as things can get more complicated when we get to social right.) Thus if civil society injures the right of one of its members, the member will also have rights of defense and satisfaction with respect to it. If another individual could not do it to you, neither can civil society; for instance, Rosmini argues that civil society has no right to restrict trade in the sense of "competition through honest means" (p. 439), for precisely the same reason your neighbor doesn't. This is quite general:
Civil society may indeed restrict innocuous freedom by prior occupancy, but not by laws and force. This is a part of common right, and any other person can do the same. The only difference is that civil society, that is, its government, must do this for the common good; individuals as such can do it for their individual good, just as they can do it for the common good. (pp. 441-442)
Likewise, civil society has no right to defend or demand satisfaction for its own individual right that goes beyond that which you or I do; that is to say, it does have a right, but it is exactly the same right. If you or I cannot, in principle, defend or demand satisfaction for our rights in some way, then civil society cannot defend or demand satisfaction for its rights in that way. And just as you or I, civil society is restricted to what is reasonable and proportionate in light of its good and the relevant circumstances.
In any case, the right of defense has two components: "simple defence of rights under attack without harm to others" and "harm to others when defense of our rights is necessary" (p. 456). As every right is justified by its 'law', not its 'title', this must be justified by the relevant moral law, which is justice, and when anyone is defending their rights, they can only do so in a way appropriate to a minister of justice. Self-defense and civil punishment have the same ultimate justification and the same ultimate limits -- for instance, neither you nor civil society can ever deliberately harm an innocent person even in order to defend yourselves from harm, and both must be guided by what is necessary rather than what is convenient. If justice is the law for the right of defense, in fact, necessity is the title.
The right to satisfaction arises from the fact that when our rights are injured, this creates a debt, and thus a further duty of satisfying the debt. There are several ways this can be done; the natural way is to return what was taken, but where this is not fully possible, we have developed various kinds of compensation, both literal and symbolic.
All of this concerns individual right, but human beings are not mere individuals; we are members of societies. Likewise, while societies can be jural persons with individual right, this is not the only relation they have to right. To have a full understanding of the rights human beings can have, we will have to look not merely at individual right but also social right.
to be continued
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Antonio Rosmini, The Philosophy of Right, Volume 2: Rights of the Individual, Cleary & Watson, trs., Rosmini House (Durham, UK: 1993).
