“Where there is a legal right there is a legal duty”- Discuss in reference to their inter-relationship.
The Correlativity of Duties and Rights
Introduction
It is by and large accepted that rights and duties are connected in such a way that rights of one person necessitate the duties of another person. For example, if I have a right to payment of $100 by Smith, then Smith has a duty to pay me $100. This is called the correlativity of rights and duties. Though never thoroughly developed, it was suggested that the reverse correlation holds as well, that the duty of one person entails the rights of another person. This is called the correlativity of rights and duties.
The correlativity of rights and duties has met many criticisms, most particularly by David Lyons; nevertheless, the basic doctrine still stands. However, doubt has continued to grow about the plausibility of the reverse doctrine concerning the correlativity of duties and rights. Criticisms against the correlativity of duties and rights occur from counter examples showing the presence of a duty without a equivalent right. The most noted examples include (1) duties of obedience (such as obeying a traffic light at a deserted intersection), (2) duties of charity (where recipients have no valid claim), and (3) duties to collective entities (such as species preservation where token members have no valid claim).
Hohfeld’s scheme of duties and rights
In a celebrated article, published nearly a century ago, Wesley Newcomb Hohfeld endeavored to elucidate the various types of jural relations. Hohfeld’s scheme has been justly regarded as a seminal contribution to analytical jurisprudence, and has stimulated lively debate since. This Essay aims to refute one of Hohfeld’s fundamental and most influential theses: the axiom of right–duty correlativity. To do so, it employs the simplest refutation strategy in first-order logic, namely providing a valid counterexample. Part I discuss earlier attempts to do likewise, and explains why they failed. For the most part, previous illustrations of ostensibly standalone rights or standalone duties neglected relevant parties who could owe the correlative duties or hold the correlative rights, respectively. Part II puts forward a simple argument: There are abstract duties in private law that ban certain types of conduct without reference to specific victims. Those duties are not necessarily correlative with rights, although their breach may generate secondary duties with corresponding rights. In particular, tort law allows plaintiffs to recover for harm caused by breach of duty that occurred before they acquired legal personality. This is tantamount to recognizing duties that are not correlative with rights, and therefore invalidates the correlativity axiom. Some of Hohfeld’s early critic maintained that his analysis was problematical in so far as it held that every legal duty had a correlative right.The critics opined that while private law duties were normally correlative with rights, other duties were not. The emblematical cases of seemingly standalone duties are: (1) duties imposed by criminal law; (2) public law duties, such as the duty to pay taxes or to serve in the army; (3) duties imposed by public regulators ;( 4) duties to animals, plants, or non-living objects (such as monuments). The primary answer to any denigration that refers to criminal law duties derives from the fundamental perception of the term right. Along with this view, duties in civil law are generally correlative with rights because the law gives individuals whose interests are sheltered by such duties special control over the performance of those duties. To use Hart’s terms, in the area of conduct covered by the duty, the individual who has the right is a “small-scale sovereign” to whom the duty is owed. On the other hand, duties in criminal law are not correlative with rights, because they cannot be enforced or waived by the individuals whom they protect. This perception of rights has faced harsh criticism on various grounds, and has not prevailed in recent research.
Standalone Duties
According to the rival interest (benefit) theory, originating in Bentham, x has a right against y if y’s duty was imposed in order to protect or serve x’s interest. The person intended to benefit from the performance of a duty holds its correlative right. Understanding whether a certain right exists requires knowledge of the justification for imposition of the duty. Now, as long as theright is enforceable, its status as a Hohfeldian right is unaffected by the fact that x does not have the power to seek enforcement. The power to enforce a Hohfeldian right may be held by theright-holder, by someone acting as a fiduciary on behalf of the right-holder, or by a governmental agency.Under this perception, duties imposed by criminal law may be correlative with the victims’ rights, although victims are unable to enforce them. For example, the offender’s duty not to assault correlates with the victim’s right not to be assaulted. The interest theory thusascribes greater generality to Hohfeld’s analysis than the will theory.However, even the interest theory recognizes at least two types of criminal law duties that may not have correlative rights. The first category consists of duties to avoid self-harm.Bentham considered “self-regarding duty,” namely a duty imposed solely for the benefit of the agent on whom it is imposed, to be one of the two exceptions to right–duty correlativity.
Examples of duties of this type may include prohibitions of intentional injury, such as suicide, self-mutilation, or drug use, duties to reduce or eliminate physical danger, such as drivers’ duty to fasten their seatbelts, or cyclists’ duty to wear helmets, and any duty to abstain from idleness or prodigality. The second category consists of duties that do not benefit anyone. In Bentham’s own words: “obligations which are fulfilled by useless efforts or sufferings, the fruit of every law produced by tyranny, neglecting or despising the counsels of utility, and yield to the suggestions of caprice—unless the gratification of this caprice can be considered as a benefit.” From an interest theory perspective, if no one benefits from the fulfillment of a particular duty, no one has a correlative right.
Legal rights and duties
Legal rights are, clearly, rights which exist under the rules of legal systems. They raise a number of different philosophical issues. (1) Whether legal rights are conceptually related to other types of rights, principally moral rights; (2) What the analysis of the concept of a legal right is; (3) What kinds of entities can be legal right-holders; (4) Whether there any kinds of rights which are exclusive to, or at least have much greater importance in, legal systems, as opposed to morality; (5) What rights legal systems ought to create or recognize. Issue (5) is primarily one of moral and political philosophy, and is not different in general principle from the issue of what duties, permissions, powers, etc, legal systems ought to create or recognize. It will not, therefore, be addressed here.
A preliminary point should be mentioned. Do all legal systems have a concept of rights? Their use is pervasive in modern legal systems. We talk of legislatures having the legal right to pass laws, of judges to decide cases, of private individuals to make wills and contracts; as well as of constitutions providing legal rights to the citizens against fellow citizens and against the state itself. Yet it has been suggested that even some sophisticated earlier systems, such as Roman law, had no terminology which clearly separated rights from duties (see Maine (1861), 269–70 ). The question is primarily one for legal historians and will not be pursued here, but it may be remarked that it may still be legitimate when describing those systems to talk of rights in the modern sense, since Roman law, for example, clearly achieved many of the same results as contemporary systems. Presumably, it did so by deploying some of the more basic concepts into which rights can, arguably, be analyzed.
If rights and duties are connected to each other in a two-place relation, or in a three-place relation between different people, then one of both categories could perhaps be eliminated. It has thus been argued that right is redundant, for right is ambiguous, whereas duty is not. Right may denote both ‘the right against another’ and ‘the right to perform an action’, and this would make it necessary to refer to the corresponding duties anyhow: the duty to perform an act for someone else’s benefit and the duty not to interfere with someone else, respectively. Duty and penalty have also been identified as the only expressions required for a rational, legal code.
Duties of Obedience
Joel Feinberg describes the problem posed by duties of obedience as follows:
Many duties of obedience imposed by legal rules are not “owed” to other persons, but rather to some wholly impersonal authority like “the law” or a painted stop sign. When a traffic signal directs me to stop, it is difficult to find an assignable person who can plausibly claim my stopping as his own due. The original legislators of the traffic ordinance may be long dead, and if vision is clear and no other motorists are in sight, there is no other person to whose right of way I owe respect.
Two objections to this clarification may be anticipated. First of all, ethicists commonly argue that non-existent beings cannot have rights. Consequently, it does not make sense to say that a future (or perhaps non-existent) person’s rights are despoiled by my unsafe habits today. In reply, future reliant propositions are either true or false now.
For the second one, suppose that I am lucky (or careful) about running red lights and do so only when no motorist or pedestrian is present. If this continues my whole life, then I have never actually dishonored any person’s right. It would seem, then, that I would not have had a sense of duty to stop at those forsaken intersections, in spite of having developed bad habits. In retrospect, perhaps I did not have a duty to stop. Obedience for me would have been a matter of prudence, not duty. But this absolution could only be pronounced after my driving career is over, for only then could we assess that I never directly violated anyone’s rights. But, for realistic purposes (and in view of counter factual events), it must be assumed that my bad habits today are genuine threats to future motorists. Thus, I have an assumed duty of obedience.
Duties of Charity
A second and more significant counter illustration to the correlativity of duties and rights involves charity. The problem arises from its categorization as what Kant calls an imperfect duty. Accordingly, we all have a duty to be charitable, but it is up to us to decide when and to whom we should donate. Recipients of charity, then, have no right to anyone’s donation except in the unlikely condition that he or she is the only needy person in the world.
Keith Burgess-Jackson has recently offered a solution to the charity problem based on a distinction between (a) the duty to build up a particular virtuous character trait and (b) the duty to perform a specific virtuous action. He argues that only this second type of duty–the duty to perform a specific action–implies correlative rights. The duty of charity, however, is a duty of the first sort where we have a duty only to develop a charitable character trait. And this type of duty does not entail a correlative right. Burgess-Jackson’s suggestion, then, is that the correlativity of duties and rights should be understood to apply only to duties to perform particular actions. In this sense, the duty of charity presents no problem.
There are two problems with Burgess-Jackson’s solution. First, it requires the adoption of a virtue theory of morality, or at least in the case of charity. This would not find acceptance among those who believe that an agent’s intentional actions are the object of moral judgments, and not an agent’s character traits. A second and more vital problem with Burgess-Jackson’s theory is that it does not resolve the problem of charity for the correlativity thesis. The problem still remains that there is a duty to develop charitable character traits which entails no consequent rights.
Graduated Rights
A graduated right should be seen as a right which varies in strength from including much entitlement to little entitlement. This may be puzzled with a prima facie right which is “the right to X unless some stronger claim shows up.” For example, my prima facie right to play my stereo loudly remains valid unless it interferes with another person’s overriding right to privacy. With prima facie rights, the validity of my right depends on circumstances external to me, mainly the existence of a stronger right independent of my own. A graduated right, by contrast, is a right which varies in strength depending on conditions internal to the right holder. For example, prisoners have weak rights to free speech and movement given their personal condition of guilt and conviction for a crime. No prisoners, by contrast, have stronger rights to free speech given their innocence. Property rights provide good examples of graduated rights, mainly in marriage contracts or business partnerships where more than one person has ownership. Here my right as a partner to some property is weaker than it would be if I were sole owner. The right to life could also be viewed as a graduated right according to the extent to which a living thing exhibits signs of personhood (such as having beliefs, desires, memories and being self-aware).
Duties to Collections
A final counter example to the correlativity of duties and rights involves duties to collective groups, such as minorities, animal species or eco-systems. Several philosophers today argue for a direct duty to these groups as a whole. The problem is that rights bearers, as traditionally understood, must be individuals and not collections. For some types of collective rights this poses no problem since the right applies to each token in the class, rather than to the class type. Women’s suffrage, for example, secured the right to vote for each woman and not for the class of women.
Opponents of the doctrine of correlativity
Opponents of the doctrine of correlativity (and of the redundancy theory of right) have argued that there is no universal correlativity. This may be ‘proved’ by calling attention to ‘duties’ for which there would be no correlative rights, like ‘duties of status’, ‘of obedience’ and ‘of compelling appropriateness’ (with such specimens as ‘duties of perfection’ and ‘duties of love’). The discovery of such non correlative ‘duties’ is largely due to an ethical intuitionism or impressionism in which every alleged right and every alleged duty of every customary morality –bourgeois, proletarian or whatever– is put on the list of ‘genuine’ possibilities. In trying to dismantle the correlativity of rights and duties some ‘active rights’ (rights to do something) have also been listed as rights which would not fit the pattern of correlativity. As an example of an ordinary ‘active right’ which would not directly imply any specific obligation not to interfere, the right ‘to make a right turn on a red light in countries where traffic keeps to the right’ has been mentioned (even th<href=”#I3426″>o, or if, it is required when traffic allows). On this view an ‘active right’ need not be discretionary; as a matter of fact all choice may be ruled out.
In a more fruitful attack on the correlativity doctrine it has been argued that people usually read too much into that doctrine. From their correlativity it does not follow that statements about rights justify or explain statements about duties or obligations; only statements about ‘exercisable’ rights do this. Exercisable rights are on this account the only genuine ones, and having such a right implies that one has or should have a certain freedom of action, while others are obligated not to interfere with its exercise. On the other hand, ‘non exercisable’ rights would not be distinct from the duty with which they correlate.
We started with distinguishing a right from what is the right thing to do. Now, what is morally right to do, presuppose that people have the (moral) freedom to do this, and it implies that people can claim to do this on the basis of the particular morality in question? It is this causes many theorists on rights to confuse an ‘extrinsic’ right from an ‘intrinsic’ right in the sense of something that is the right thing to do according to a particular system (like turning to the right if this makes traffic run more smoothly). Parallel to this distinction we will have to differentiate ‘extrinsic’ duties or obligations and the ‘intrinsic’ ones which follow from what is the right thing to do (as in the utilitarian justification of duties). The former ones are, then, the correlatives of extrinsic rights and are duties which one can even have if their performance is contrary to, for example, collective goals. (The duty not to injure someone else and the duty not to interfere with someone else’s expression of free speech are good examples.) The latter duties are the correlatives of intrinsic rights, but do not derive from them: they rest on doctrinal principles, or are generated by a certain system of norms. A duty ‘of perfection’ is teleological a pleonasm, a duty ‘of love’ is, taken at face value, a psychological or physiological absurdity to be compared to a duty ‘not to be hungry’ or ‘to be talented’. Duties like those of ‘status’ or ‘obedience’ may be justifiable in a particular normative theory on the basis of the utility or other merits of a system in which someone has this status or can demand this obedience, one can only conceive of such duties if the acts in question are right or if the system is good on the basis of that very utility or those other merits of the total system. They are therefore intrinsic duties which do appear to correlate with intrinsic rights.
Conclusion
The goal of the paper has been to protect the correlativity of duties and rights by responding to the counter-examples of obedience, charity and duty toward species perpetuation. In dealing with each I have been noncommittal about whether all these specific duties even exist. For, the met ethical issue of correlating duties with rights must not depend on the normative issue of precisely which duties we have. The met ethical issue must be construed temporarily, so that if we have duties of obedience, charity or species preservation, then these are the entailing rights.
Regarding our duty to patiently wait at deserted stop lights, we do not truly have this compulsion, in which case the traffic laws should be rewritten so deserted stop lights could be treated as flashing red lights. There are further duties of obedience which should be retained to prevent us from forming bad habits and victimizing future right holders. Laws regarding the transportation and disposal of harmful wastes are one example. With charity, it is probable that the issue is only prudential once we go beyond our immediate social circle. Nevertheless, when charity becomes a duty, it is a graduated duty which is in proportion to the rightful claim that a recipient has on us. The issue of our duty toward species preservation is a recent one, and many theorists consider it is merely an indirect, and not a direct duty. But, there is rising interest in collective rights, and in our conceivably direct duties toward these groups as a whole. With the appropriate modifications, the above scheme for graduated species rights can make sense of minority rights to privileged treatment, as well as ecosystem rights, neither of which makes sense under traditional study.
References
1. See Marcus Singer, “The Basis of Rights and Duties,” Philosophical Studies, 1972, Vol. 23, pp. 48-57; David Braybrooke, “The Firm but Untidy Correlativity of Rights and Obligations,” Canadian Journal of Philosophy, 1972, Vol. 1, pp. 351-363; Joel Feinberg, Social Philosophy, (Englewood Cliffs: Prentice-Hall, 1973), p. 62; Rex Martin and James W. Nickel, “Recent Work on the Concept of Rights,” American Philosophical Quarterly, 1980, Vol. 17, pp. 165-167; Jack Donnelly, “How are Rights and Duties Correlative,” Journal of Value Inquiry, 1982, Vol. 16, pp. 287-294. Cf. Alan Gewirth, “Why Rights are Indispensable,” Mind, 1986, pp. 329-344.
2. Benn and Peters argue, for example, that “Right and duty are different names for the same normative relation, according to the point of view from which it is regarded,” Social Principles and the Democratic State, (London: George Allen, 1959), p. 89.
3. David Lyons, “The Correlativity of Rights and Duties,” Nous, 1970, Vol. 4, pp. 45-55.
4. See Richard Brandt, Ethical Theory, (Englewood Cliffs: Prentice-Hall, 1959), p. 440; Alan Gewirth, “Why Rights are Indispensable.”
5. Joel Feinberg, Social Philosophy, p. 63.
6. For example, on contract Arian theory, non-existent people cannot have rights since they cannot be parties to agreements. Their value would have only secondary consideration, insofar as we are affected by their well-being.
7. Keith Burgess-Jackson, “Duties, Rights and Charity,” Journal of Social Philosophy, 1987, Vol. 18, pp. 3-12.
8. In my resolution of the obedience problem above, I discuss the importance of avoiding bad habits. However, my account does not rely on a virtue theory, for it is ultimately the motorist’s intentional act of failing to stop which is the object of moral judgment, and not his habit.
9. David Hume, A Treatise of Human Nature, ed. Selby-Bigge, (Oxford: Clarendon Press, 1978), p. 583; Enquiries Concerning Human Understanding and Concerning the Principles of Morals, ed. Selby-Bigge and P.H. Nidditch, (Oxford: Clarendon Press, 1975), p. 227.
10. Joel Feinberg, Social Philosophy, p. 73.
11. Cf. Joel Feinberg, “Abortion,” in Matters of Life and Death, ed. Tom Regan (New York: Random House, 1986), pp. 267-270.
12. For legal purposes joint ownership of nondivisible property translates into full rights to a percentage of an object’s value. But reducing property to its resale or investment value does not fully explain the nature of property rights. It fails to account for the object’s access, use, or benefit to the owner(s), independent of the object’s monetary value.
13. Joel Feinberg, Social Philosophy, p. 66.
14. It would make little difference if each needy person in the world actually received the fraction of a cent I owe him. Since my duty is prima facie, the problem of distribution outweighs my particular obligation to those who slip through the world wide safety net.
15. J. Baird Callicott, “Non-Anthropocentric Value Theory and Environmental Ethics, American Philosophical Quarterly, 1984, Vol. 21, pp. 299-309. Holmes Rolston III, Richard Routley, and John Rodman hold views similar to Callicott’s.
16. Tom Regan makes this argument in The Case for Animal Rights, (Berkeley: University of California Press, 1983), p. 362.
17. Self-awareness (conceiving of oneself as existing in time) is often seen as the foundational criterion which confers a moral standing to a being. The concept traces back at least to Locke who described a person as an intelligent being who “can consider itself, the same thinking thing, in different times and places” An Essay Concerning Human Understanding, Bk. II, Ch. 29, Par. 9. On my analysis of species rights, self-awareness functions as an important prima facie criteria for preserving a species member. However, species endangerment is the foundational criteria which confers species rights. This is completely compatible with the view held by some, such as Peter Singer, that self-awareness confers the right to life (which would be a right separate from species rights).
Benn and Peters argue, for example, that “Right and duty are different names for the same normative relation, according to the point of view from which it is regarded,” Social Principles and the Democratic State, (London: George Allen, 1959), p. 89.
See id. at 9
See Simmonds, supra note 22, at 144.