REVIEWS: Rights of Personality in Scots Law: A Comparative Perspective by Niall Whitty and Reinhard Zimmermann (eds)
| DOI | http://doi.org/10.1111/j.1468-2230.2010.00823_3.x |
| Published date | 01 September 2010 |
| Date | 01 September 2010 |
| Author | Eric Descheemaeker |
NiallWhitty and ReinhardZimmermann (eds),Rights of Personality in Scots Law:
A Comparative Perspective
,Dundee: Dundee University Press, 2009, 614 pp,
hb d50.00.
Rights of personality are not, as a legal category, unknown to English lawyers;
but it is fair to say that they remain an elusive, ill-de¢ned and ill-mapped concept
south of the Border.This should not come as a surprise given that they remain,as
Whitty and Zimmermann’s new edited collection reminds us, under-conceptua-
lised even in the civilian tradition in which they originated.This volume, which
focuses on Scots law but makes numerous inroads into other civil law jurisdic-
tions and into English law, is a welcome opportunity to re£ect from an English
perspective on the category and its signi¢cance. The present review, rather than
attempting to discuss all twelve contributions within the book, focuses instead
on three speci¢c issues that the book considers and that are also important from
the outside perspective of English law: the contentof the categoryof ‘personality
rights’ ; the nature of the injury su¡ered when theyare violated; and the dual nat-
ure of the law of defamation.
1.‘Rights of personality’su¡ers as a legal category from the disease of concep-
tual instability which, though recurrent in the l aw, is striki nglydevelopedhere. In
one sens e,a ll rights which attach to a person ^ th ati s to say, al l rights known to the
law ^ could be describ ed as rights of the perso nality.This meaning would, how-
ever, be so broad as to be useless. Among rights attaching to the person, the
Romans identi¢ed the twin classes of rights in rem and in personam: rights in rem
were proprietary rights, which for the Romans could only reside in ta ngible assets
(but we would have no di⁄culty extrapolating them to intangible assets); while
rights in personam were personal rights ^ obligations from the perspective of the
debtor.What they left un identi¢ed and unmapped a re the superstructural rights
^ all primary ^ which are not directly realisable in court but are transformed,
when they are wronged, into secondary rights and correlative duties (typ ically, a
personal duty to pay compensation for the harm caused, but sometimes another
type of personal duty ^ for instance, to giveback or give up a gain ^ and occasion-
ally a proprietary right).
The concept of rights of personality emerged from modern attempts, starting
with Donellus, to map out thi s third class of rights. For this reason, it i s invariably
assumed that such rights are di stinct from rights in personam and in rem ^ a distinc-
tion often rephras ed in the opposition between ‘patrimonial’ rights and personal-
ity rights, recategorised as ‘extra-patrimonial’. These distinctions give rise,
however, to two di⁄culties. First, a right in personam or in rem need not be patri-
monial (in the sense of freely transferrable for money), while a personality right
need not be extra-patrimonial (in the sense that the law forbids such transfers).
Second, the distinction between proprietary r ights and personality rights
depends on how broadly a thing, or res (into which a right in rem resides) is con-
strued. A proprietary right can res ide in a thing tangible (a book) or i ntangible (a
work of art, information); but entities such as reputation or dignity have almost
never been regarded as res which can be owned. Had they been so regarded, the
whole category of personality right s would have been swallowed up by rights in
rem ^ and therefore by the law of property, in the narrower sense of the term.
Reviews
898 r2010The Authors. Journal Compilation r2010The Modern Law Review Limited.
(2010) 73(5) 883^902
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