8.1.2 |
THE CORRELATIVITY OF RIGHTS AND DUTIES |
Do rights, indeed, always correlate with duties as many a
theorist on rights suggests? Some of those who hold that they
do, have used this correlativity to identify rights: they are
mere correlatives of duties. Others have qualified that view
while accepting the correlativity itself. They have defined a
right as the correlative of a relative duty ('relative' in
that it is the duty to one or more persons other than oneself or
the state); or as the correlative of a conditional duty
('conditional' in that the possessor of the right may choose not
to exercise it.)
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 these
two 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.
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 noncorrelative '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
tho, 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 so. 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,
'nonexercisable' rights would not be distinct from the duty
with which they correlate. The right to turn right on a red
light would be exercisable if one were allowed to wait before
the light even if no traffic were approaching from the left
or ahead, while someone else would be waiting behind the 'right-holder'.
Only then would it correspond to a duty by others
not to interfere. However, if one has the right 'to turn on a red
light if traffic allows' and if one must turn on a red light
if traffic allows (and there is someone impatiently waiting
behind the 'right-holder'), then the right is nonexercisable and
does not contain an element of full freedom.
We started
this chapter with distinguishing a right from what is
the right thing to do.
Now, what is morally right to do presupposes that people have the (moral)
freedom to do the (morally) right thing, and implies that people can claim
to do it on the basis of the particular morality in question.
It is this what causes many theorists on rights to confuse an
'extrinsic' right (one extrinsic to the ideas on the basis of which
acts of the type concerned are called "right") and an 'intrinsic'
right in the sense of a right to something that is the right thing to
do according to the system under consideration (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' duties 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 ones are the correlatives of intrinsic rights, but they do not
derive from them: they rest on (first-order)
doctrinal principles, or are generated by
a specific system of values and/or norms.
A duty 'of perfection' is
teleologically 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.
