Thomas Mautner 124 Initially and innately, people have liberty only. Rights of the three other types are acquired, chiefly by agreements. Incidentally, that other kinds of rights presuppose libertas was also emphasised by Kant and “rediscovered” by Hart.^" Pufendorf offers a general definition of rights in this sense of moral power, an active moral quality: Potestas est qua quis aliquid legitime et cum effectu morali agere potest. Qvi effectus est, ut alteri adferatur obligatio aliqvid exeqvendi, aut actiones ab altero exercitas admittendi, vel non impediendi, aut ut valeat in altcrum conferre facultatemaliqvid agendi aut habendi, quae antea aberat.^® The sovereign realms and the moral powers associated with them are not determined by any antecedent higher law. Rather, they provide a structure from which laws in the sense of rules of conduct can be read off. The rules do not give rise to rights. On the contrary, the rights give rise to them. The above account of some of the elements of a right-based moral theory relies on the lucid and persuasive analyses of Karl Olivecrona, another great jurisprudentialist of whom the University of Lund can be proud.^® As noted by every writer on the subject since antiquity, the words ius and its vernacular equivalents had many different senses. Even when used for an attribute of persons, Pufendorf observed, the word does not always signify an active moral quality in a person, but a passive one. He explains that the difference between them is that the former enables a person to act, the latter enables a person to have, suffer, admit or receive. There are three different passive senses of the word: (1) The right to receive, e.g. a gift, when there is no power to demand nor any obligation on another person to render. (2) The right to receive something which is merited or deserved, when the other party’s failure to render would not constitute an injury. (3) The right to receive something when the other party is obliged to render by a law which prescribes a penalty, so that the recipient is able to compel performance.-® Of these, the third is the one of most interest to us. A right in this sense is reducible to obligations imposed by laws which lay down rules of conduct. A person who has rights in this sense only, is certainly no sovereign; he is a considerably less dignified creature, merely able to manipulate the legal machinery to his advantage. The crucial point of difference is that the source of the other party’s obligation does not lie within him. This is the Hart p. 175: “. . . if there are any moral rights at all, it follows that there is at least one natural right, the equal right of all men to be free.” 18 Pufendorf (1688) 1, 1, 19. 19 See Olivecrona (1971) pp. 275—296 and (1977). -9 Pufendorf (1688) 1, 1, 20.
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