The grounds for rejecting the criteria of the Roman law have been
shown above. Let us begin afresh. Legal duties are logically
antecedent to legal rights. What may be their relation to moral
rights if there are any, and whether moral rights are not in like
manner logically the offspring of moral duties, are questions
which do not concern us here. These are for the philosopher, who
approaches the law from without as part of a larger series of
human manifestations. The business of the jurist is to make known
the content of the law; that is, to work upon it from within, or
logically, arranging and distributing it, in order, from its
stemmum genus to its infima species, so far as practicable. Legal
duties then come before legal [220] rights. To put it more
broadly, and avoid the word duty, which is open to objection, the
direct working of the law is to limit freedom of action or choice
on the part of a greater or less number of persons in certain
specified ways; while the power of removing or enforcing this
limitation which is generally confided to certain other private
persons, or, in other words, a right corresponding to the burden,
is not a necessary or universal correlative. Again, a large part
of the advantages enjoyed by one who has a right are not created
by the law. The law does not enable me to use or abuse this book
which lies before me. That is a physical power which I have
without the aid of the law. What the law does is simply to
prevent other men to a greater or less extent from interfering
with my use or abuse. And this analysis and example apply to the
case of possession, as well as to ownership.
Such being the direct working of the law in the case of
possession, one would think that the animus or intent most nearly
parallel to its movement would be the intent of which we are in
search. If what the law does is to exclude others from
interfering with the object, it would seem that the intent which
the law should require is an intent to exclude others. I believe
that such an intent is all that the common law deems needful, and
that on principle no more should be required.
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