Personal Rights and Real Rights

The division of rights into personal right, real right, and right to actions is, like many other divisions, intended to systematize the mass of unorganized material. But this division utterly confuses rights which presuppose such concrete relations as the family or the state with those which refer to mere abstract personality. An example of this confusion is the classification, made popular by Kant, of rights into Real Rights, Personal Rights, and Personal Rights that are Real in kind. It would take us too far afield to show how contorted and irrational is the classification of rights into personal and real, a classification which lies at the foundation of Roman law. The right to actions concerns the administration of justice, and does not fall under this branch of the subject. Clearly it is only personality which gives us a right to things, and therefore personal right is in essence real right. A thing must be taken in its universal sense as the external opposite of freedom, so that in this sense my body and my life are things. Thus real right is the right of personality as such. In the interpretation of personal right, found in Roman law, a man is not a person till he has reached a certain status (Heineccii “Elem. Jur. Civ.,” §lxxv.). In Roman law personality is an attribute of a class and is contrasted with slavery. The so-called personal right of Roman law includes not only a right to slaves, a class to which probably belong the children, not only a right over the class which has been deprived of right (capitis diminutio), but also family relations. With Kant, family relations are wholly personal rights which are real in kind.—The Roman personal right is not the right of a person as such, but of a special person. It will be afterwards shown that the family relation is really based upon the renunciation of personality. It cannot but seem an inverted method to treat of the rights of persons who belong to definite classes before the universal right of personality.—According to Kant personal rights arise out of a contract or agreement that I should give or perform something; this is the jus ad rem of Roman law which has its source in an obligation. Only a person, it is true, can perform a thing through contract; and further, only a person can acquire the right to such a performance. Yet we cannot, therefore, call such a right personal. Every sort of right is right of a person; but a right, which springs out of contract, is not a right to a person, but only to something external to him, or to be disposed of by him; and this is always a thing.

Source: Hegel, Georg WF. The Philosophy of Right (1835)

The distinction between real and personal rights can be based on the manner in which real and personal rights are enforced. That would entail an application of the personality doctrine. In such a case, emphasis is more readily placed upon the obligations of persons other than the holder of the right to respect (in the case of real rights) or to execute (in the case of personal rights) the right. In terms of the personality doctrine, real rights distinguish themselves from personal rights by the fact that they operate vis-à-vis all persons generally and not only against particular individuals (or groups of persons). As the personality doctrine supports the absoluteness of real rights in the context of enforceability, it shows preference for a scope description of ownership.

The distinction between real and personal rights can also be based on the objects of the rights as portraying the essential difference between real and personal rights. This would entail an application of the classical theory of rights. In such a case, emphasis is placed on the object of the right rather than on its absoluteness or relativity. A definition of ownership in terms of its nature and identity is usually based on the classical theory of rights.

Source: Mostert, Hanri. Concept of Property in Constitutional and Private Law