Assess the significance of Bell’s presentation of the absolute rights of individuals in §§ 2028–2057 of the Principles
Shakile Holden
The author is in his fourth year of his LLB studies at the University of Edinburgh. The author wishes to thank Dr John Macleod, Senior Lecturer in Private Law at the University of Edinburgh, for his inspiration and invaluable feedback. It is much appreciated!
This blog assesses the significance of Bell’s presentation of the absolute rights of individuals in §§ 2028–2057 of the ‘Principles.’[1] We should care about this because Bell provided a normative basis for why conduct is wrongful. Bell accounted for protection of our interests in our person by positing a class of absolute rights.[2] In doing this, he was re-ordering material as opposed to creating material. Nevertheless, we see a radical development as he posited ‘personality rights’ in our own person. Here, Bell highlighted and explained the characteristics of these rights – namely, they are enforceable against everyone,[3] but that they are non-patrimonial. Thus, there are limitations on what we can do,[4] but these putative rights are inherent in human beings.[5]
Ultimately, the significance of Bell’s presentation is straightforward: he does not seek to found on the capacity of these rights. Instead, he focuses on expounding the law rather than developing the law. Indeed, Bell explained why wrongs are wrongful[6] and provided objections to others’ conceptions of these rights. Bell’s account, for example, explains why Savigny’s account of ownership[7] regarding these rights is problematic.
In the Principles, Bell accounts for absolute and relative rights.[8] Traditionally, however, categories of offences (and obligations) in Delict, or quasi-delict, were a reflex of the Criminal law.[9] Bell’s radical development states that natural persons have an absolute right which remains abstract until it is infringed, thereby creating a relative right.[10] The foundation of wrongfulness is therefore rooted within Private Law. For Bell, absolute rights are acquired from birth; thus, these are rights that everyone has by virtue of being a natural person.[11] They are absolute because they are rights enforceable against everyone in the world.[12] These rights are split into three categories: personal safety and bodily integrity;[13] the right to liberty,[14] and a dignitarian right.[15] These rights, however, are qualified,[16] but this is necessary to deal with the fact that there can be conflict of these rights. For example, if violence has occurred an infringement of personal safety has transpired. The attackers right of liberty would therefore be restricted to protect our bodily integrity or threat of it. Alternatively, if the assailant went on a shooting spree killing people, it may be “absolutely necessary” for the Police to end the attackers limited right to life.[17] Thus, there are rules designed to protect bodily integrity, but there are risks. For example, one has not been wronged where trivial contact occurs, such as when someone brushes past or bumps into you. Here, you are not wronged unless they were negligent[18] or acted intentionally.[19]
Absolute rights can be contrasted with relative rights; the latter is enforceable against specific people.[20] For example, marriage rights are relative, in respect to the other spouse.[21] Other examples are contractual rights or employer liability.[22] To account for why we have these rights, Bell sought to explicate why wrongs are wrongful. Bell explained that, regarding the law of Delict, the way we protect these rights, or give recognition to them, is at the point of infringement.[23] Thus, where defamation occurs, one could seek a remedy of interdict to protect you. More commonly, in cases infringing bodily integrity, one is unaware of the threat until they are physically hit. This unwarranted attack is injurious to our bodily integrity; thus, we have a right to reparation. The purpose of Delict is therefore to protect you from wrongs and to provide you with reparation; this flowing from the wrongful act of the person who hit you. This consequently engages a relative right to repay you,[24] acting as compensation for the attack.
Since Bell’s rights are absolute, why does he not class these rights as real rights? Bell, most likely, did not want to say the object is a thing because real rights come from res – a right in a thing. They exist in reference to a thing. Here, absolute rights are different – they are rights in our own person. From these two classes (real rights and rights in our own persons) there lies a division: while all real rights are absolute (namely, enforceable against everyone) not all absolute rights are real rights. Some scholars use the distinction that Smith uses.[25] Smith distinguishes between personal (personality rights) and patrimonial rights. Real rights are things you own, whereas personal rights are rights in your own person. Like Bell, Smith asserted that personal rights are invested in a human being at birth.[26] In contrast, patrimonial rights are rights you acquire[27] – for example, you inherit or purchase property.[28] Hence, patrimonial rights are there to acquire, to trade with, and to dispose of.
However, regarding non-patrimonial rights – where you exercise your right over your own person – there are limitations. One can consent to touch, but not to assault or suicide,[29] except if one was engaging in sports. For example, one can consent to being punched in a boxing match or one can consent to being tackled whilst playing rugby. Notably, one’s right cannot be given up entirely; thus, there is an extent to which these rights can be waived. This, however, contravenes Savigny’s conception of what a right is. For Savigny, a right was authority of the will: the holder of the right decides what happens in respect of the object.[30] Thus, if one owns land, one has the authority to choose what materialises concerning that land. One could use the land for their own purposes, or could rent it out, or could sell it. One’s right to the land thereby allows one to exert control over its use and disposition. This is tantamount to a right of ownership. But, for Bell and Smith, they asserted that we do not own our bodies; that we are merely vessels.[31] Indeed, a right of ownership is deeply problematic if it was applied to bodily integrity. The law has reason to think that we should not give up these rights – a minimum core should be established. In my view, the moral basis for limiting non-patrimonial rights is due to a protective concern; it is in peoples’ best interests. It could be presumed that more freedom is better, and there are certain inalienable rights that we cannot waive. For example, the act of suicide and giving up one’s liberty. This view could be justified by virtue of having respect for bodily integrity and the sanctity of life; the value that humans have and individuals’ contributions to society. Furthermore, these rights could be considered essential to human dignity; consider, for example, privacy and reputation. Thus, Bell asserting that we do not have ownership over our bodies comes from, inter alia, protecting people from being exploited. However, in my view, this could also prevent others from suffering harm. For example, consider assisted suicide – observing a loved one or friend killing themself is likely to cause psychological harm to the observer.
The nature of these rights, particularly the conception of authority over the thing, creates tension with how the law operates. For Bell, we are not to think of this primarily as a sphere of control.[32] These rights matter, in a Hohfeldian sense, because they are correlative to duties. For example, the right of personal safety entails a correlative duty of others to protect your right.[33] The wrongfulness is thus explained by the position of others’ duties. Different Delicts correspond to different rights. These interests are protected by various bits of law sitting imperfectly together. For Bell, we ought to think of this more like the right of ownership rather than a right to payment. A duty to pay is specific: it means we only pay someone money they are owed. Ownership, contrarily, is more extensive; it consists of a bundle of duties, a conglomeration of entitlement. For example, to respect your property or the correlative duty to not negligently damage property, or to not put you out of possession of your property.
Like Bell, Stair stressed the importance of life, protective safety, and liberty in terms of freedom.[34] He enumerated on interests and conjured up a notion of three categories: obligation, liberty, and dominion.[35] Stair’s account of the law is much more theological, but liberty is not as developed as Bell: Stair worked out rights that we have in ourselves, powers we have, but claimed we can dispose of our own person. Stair also talked of real rights regarding content, enjoyment, and satisfaction in which we own,[36] but how is it possible to have a correlative duty to fulfil these interests? Thus, in my view, Bell’s presentation – and depth of analysis – was more developed and logical than Stair’s in this context.
In conclusion, the importance of Bell’s presentation is uncomplicated: he did not seek to found on the capacity of these rights. Rather, Bell was concerned about explaining the law as opposed to developing it. Bell ultimately accounted for absolute and relative rights; the nature and characteristics of these rights; why wrongs are wrongful and provided an objection to others’ conceptions of these rights. Bell’s account, for example, explains why Savigny’s account of ownership regarding these rights is problematic.
Notes:
[1] G J Bell, Principles of the Law of Scotland, 4th edn (1839 repr 2010) §§ 2028−2057.
[2] Ibid, § 2027.
[3] Ibid, §§ 939, 962-972; E C Reid, The Law of Delict in Scotland (2022) at para 2.03.
[4] Ibid.
[5] T B Smith, A Short Commentary on the Law of Scotland (1962), at p.260.
[6] Bell (n2) §§ 2028−2057.
[7] F C von Savigny, System of the Modern Roman Law vol 1 (trans W Holloway, 1867) at pp.271-274.
[8] Bell (n2) § 2027.
[9] J Blackie “Unity in Diversity: The History of Personality Rights in Scots Law” in N R Whitty and R Zimmermann, Rights of Personality in Scots Law: A Comparative Perspective (2009) 31.
[10] Bell (n2) § 2028.
[11] Ibid, §§ 2028−2057; Smith (n6) at p.260; Savigny (n8) at p.272.
[12] Bell (n2) §§ 939, 962-972; Reid (n4) at para 2.03.
[13] The right not to be killed or injured: see Bell (n2) §§ 2030, 2032.
[14] That is, the freedom to move around safely: see Bell (n2) § 2034.
[15] That is, for our honour and reputation to not be ruined or tainted by falsehoods: see Bell (n2) § 2043.
[16] Bell (n2) §§ 2028−2057.
[17] See the European Convention on Human Rights, Article 2(2), and Article 2(2)(a).
[18] Bell (n2) at §§ 2030, 2032, 2039.
[19] Bankton, An Institute of the Laws of Scotland vol I (1751, repr St Soc 41, 1993) 1.10.21-22; Gordon v Stewart (1842) 5 D 8; Ewing v Earl of Mar (1851) 14 D 314; Hunter v Canary Wharf Ltd [1997] AC 655, per Lord Hoffman at 70; Ashley v Chief Constable of Sussex Police [2008] UKHL 25, [2008] 1 AC 962 per Lord Scott at para [18]; McKie v Chief Constable of Strathclyde 2002 Rep LR 137 (affd 2003 SC 317) at 23-20 [10]; McCallum v Morrison [2023] SAC (Civ) 23 at para [31]; J Blackie, ‘From actio iniuriarum to Rights of Personality: The Historical Background in Scots Law’ in Niall Whitty and Reinhard Zimmermann (eds), Rights of Personality in Scots Law (Dundee, Dundee University Press, 2009) at 104–8; E C Reid, Personality, Confidentiality and Privacy in Scots Law (London, W Green, 2010), para 2.10; K M Norrie, “The actio iniuriarum in Scots Law: Romantic Romanism or Tool for Today” in in E Descheemaeker and H Scott (eds) Iniuria and the Common Law (2013), pp 52, 53, 54, 55, and 56; J Blackie, “The Protection of corpus in Modern and Early Modern Scots Law” in E Descheemaeker and H Scott (eds) Iniuria and the Common Law (2013), p.161; E C Reid, The Law of Delict in Scotland (2022) para 16.06.
[20] Bell (n2) at § 2027.
[21] Although matters may be complicated in terms of seduction. See, for example, Bell (n2) § 2033.
[22] See the doctrine of vicarious liability: M Morrison Supermarkets v Various Claimants [2020] UKSC 12 and Barclays Bank v Various Claimants [2020] UKSC 13; cf Bell (n2) § 2031.
[23] Bell (n2) § 2028.
[24] Ibid at §§ 2028, 2032.
[25] Smith (n6) at pp.260-264.
[26] Ibid, at p.260.
[27] Savigny (n8) at p.272.
[28] Note: these property rights are absolute.
[29] Savigny (n8) at p.273.
[30] Ibid, pp.271–274.
[31] Cf Smith (n6) at p.261.
[32] Indeed, this works for property rights, just not in this context.
[33] W N Hohfeld, “Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1913–1914) 23 Yale Law Journal 16.
[34] Stair, Institutions of the Law of Scotland, 2nd edn (1693) ed D M Walker (1981) 1.1.22–23; 1.2.1–5; 1.3.1–4; 1.9.
[35] Ibid at 1.1.22.
[36] Ibid at 1.9.4.
