Secondly, it should be noted that, in law, property rights can be ofmany different types. Although ownership is obviously one of the mostimportant, another major class is that of possession, whether temporaryor relatively permanent. For example, the right to use a car which onehas hired for a week or to live in a certain house for the rest ofone’s life. Yet other types, falling short of either ownership orpossession, could be, for example, to walk across the local farmer’sfield or have one’s next-door neighbour maintain his side of the jointgarden wall.
The details of property rights vary from jurisdiction to jurisdictionperhaps more than those of almost any other types of right. Further,many jurisdictions have different rules relating to property rights inland (and its fixtures) as opposed to all other types of entity. Forthese details reference should be made to specialist books in thejursdiction. (Cf. Hume 1740, Book III, Section III, where hediscusses the notions that, in his view, lie behind rules ofoccupation, prescription, accession and succession, by which propertymay be acquired. He points out that not infrequently one cannotsensibly claim that a rule of particular content is better than one ofsomewhat different content. The important thing is, rather,that some legal rule on the matter exists.)
Some of the essays touch on themes to which little attention has been paid, such as Bentham's identification of the forms of mysitification protecting the law from criticism; his relation to Beccaria; and his conversion to democratic radicalism and a passionate admiration for the United States.
Almost all of the on this web site attempt to portray all points of view on a given topic. We also try to avoid criticizing the religious beliefs of any group, except when it obviously hurts other people. The often deviate from the standards that we use. Quite often, they will express a single opinion and reject all other interpretations of the Torah, Christian Scriptures, Qur'an, etc. as being in error and without merit. Read them with care.
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Address the business side of your legal activities with solutions to manage, track and analyze matters, finances, critical processes, relationships and performance.
Legal rights are, clearly, rights which exist under the rules of legalsystems or by virtue of decisions of suitably authoritative bodieswithin them. They raise a number of different philosophical issues.(1) Whether legal rights are conceptually related to other types ofrights, principally moral rights; (2) What the analysis of the conceptof a legal right is; (3) What kinds of entities can be legalright-holders; (4) Whether there any kinds of rights which areexclusive to, or at least have much greater importance in, legalsystems, as opposed to morality; (5) What rights legal systems oughtto create or recognise. Issue (5) is primarily one of moral andpolitical philosophy, and is not different in general principle fromthe issue of what duties, permissions, powers, etc, legal systemsought to create or recognise. It will not, therefore, be addressedhere.
A preliminary point should be mentioned. Do all legal systems have aconcept of rights? Their use is pervasive in modern legal systems. Wetalk of legislatures having the legal right to pass laws, of judges todecide cases, of private individuals to make wills and contracts; aswell as of constitutions providing legal rights to the citizens againstfellow citizens and against the state itself. Yet it has been suggestedthat even some sophisticated earlier systems, such as Roman law, had noterminology which clearly separated rights from duties (seeMaine (1861), 269–70 ). The question is primarily one forlegal historians and will not be pursued here, but it may be remarkedthat it may still be legitimate when describing those systems to talkof rights in the modern sense, since Roman law, for example, clearlyachieved many of the same results as contemporary systems. Presumably,it did so by deploying some of the more basic concepts into whichrights can, arguably, be analysed.
The position of many important writers on legal rights is difficultto ascertain on this point, because it is not one they addresseddirectly. Hohfeld (1919), for example, confined his discussion entirelyto legal rights and never mentioned moral ones. Hart did write aboutmoral rights (1955, 1979) as well as legal ones (1973, 1994), but not in away that allows for much direct comparison. Bentham (1970 ) wroteextensively about the analysis of legal rights, but, notoriously,thought that the idea of natural moral rights was conceptualnonsense.
Before analyzing the theory of legal positivism and the views of H.L.A. Hart in details, it is primarily necessary to point out that he produced a dramatic impact on the development of philosophical thoughts and views on the problems of understanding and identification of law to the extent that he is considered one of the most prominent philosophers working in this domain in the 20th century (Russel 1997).
Speaking about his views and theories, it should be said that he paid a lot of attention to the correlation of law and morals that is perfectly illustrated in his article “Positivism and the Separation of Law and Morals” where he is discusses the correlation between moral laws and legal norms and he critically evaluates the works of such significant figures in the development of philosophic views on the problem of identification of law as Justice Holmes, Jeremy Bentham and John Austin.