8.2.1 |
A CONSTRUCTIONAL CLASSIFICATION OF RIGHTS
AND DUTIES |
When it is stated that
exercisable rights impose a duty
on others, it is the right and the correlative duty of two
different parties which is being talked about.
When it is suggested that
nonexercisable rights cannot be
distinguished from the duty with which they correlate (and when
it is assumed that there always must be such a corresponding
duty), it is the right and the corresponding duty of one and the
same party which is being referred to.
Altho this distinction
between exercisable and nonexercisable rights is, like practically
all other kinds of right traditionally distinguished, far
too simplistic, it tells us one thing we should do: that we
should look at the different kinds of parties involved in
every kind of system to which a certain right or duty belongs,
and that we should examine what is the right (if any) and what
is the duty (if any) of that particular (kind of) party in that
particular (kind of) system.
And then, it is one thing that there is no duty correlating with a certain
right of the same person, or vice versa, and quite another thing that
there would be no duty of any party correlating with a certain right of a
party in the same total system of rights and duties.
A discussion about the (possible) universal
correlativity of rights and duties does not make
sense if this correlativity is confined to one and the same person or
party.
But when it is extended to 'both' parties in a right-duty situation (as is
done in the case of exercisable rights), the question arises immediately
whether there are always only two parties, and whether these parties are
always of the same character.
It now turns out that the distinction between
extrinsic and
intrinsic rights and duties
is very useful but not sufficient. A second distinction
is needed: that between general and special rights and
duties. A special right is (traditionally) defined as a right of a
definite person or party that has some special relationship
with another definite person or party. It is agent-relative. For
example, if A (who has the duty) promised something to B (who
has the right), the special relationship is that of a personal
promise. (In the event that the relationship is one between
persons, a special right and duty may also be called "in
personam".)
General rights and duties are the rights and duties of an
indefinite party. (They are also called "in rem", and are
non-agent-relative.) All extrinsic rights and duties are of
this type, for one does not have such a right or duty because
one is a person or living being A or B that is involved in a
special deal or relationship with a person or living being C or D.
Intrinsic rights and duties, however, are either general or
special.
When we analyze the classes of addressees which are party to the
extrinsic, to the intrinsic, general and to the special right-duty
situations, we find that they are all three of a dissimilar character.
Even the number of parties involved is not necessarily the same.
Thus we have every reason to divide right-duty systems or right-duty
constellations into three types.
(Note that these 'constellations' are not
constellations of right elements
but of rights and duties themselves.)
The first right-duty constellation is the one of rights and duties which
are general and extrinsic.
Since extrinsic rights and duties are general by nature, this system may
simply be referred to as
'the extrinsic right-duty constellation'.
The second constellation is the one of rights and duties which are general
and intrinsic.
It may variously be called "the intrinsic general" or
"the general intrinsic right-duty constellation".
The third constellation is the one of rights and duties which are special
and intrinsic,
'the special intrinsic right-duty constellation', or
'the special right-duty constellation' for short.
Together, these three systems lead us to acknowledge seven types of
parties with their rights or duties.
They are:
in an extrinsic right-duty constellation:
- the first party's right (and reciprocal duty),
- the coexistent party's duty
(half-right, and reciprocal right);
in an intrinsic general right-duty constellation:
- the first party's duty (half-right and
indirect rights),
- the advantaged party's right (direct 'duty' and
indirect duties),
- the disadvantaged party's duty (half-right and
indirect right(s) ); and
in a special right-duty constellation:
- the first party's obligation (half-right and
indirect right(s) ),
- the recipient (party)'s right (and indirect duty
or duties).
This classification of rights and duties is a constructional
one, not some intuitionist-conventionalist
medley of real or alleged (sorts of) rights and duties with the
characteristics they might have or fail to have.
We will see that nevertheless most, if not all, traditionally
distinguished categories of rights, even pseudorights, fit in with
this pattern of right-duty constellations. Usually tho, they can
only partially be accommodated, because certain types of right to
be recognized on our construction have been overlooked or
neglected. We will see, too, that the three distinct right-duty
constellations lead to different procedures of justification for
the rights and duties involved; and that, conversely, a certain
type of justificatory theory only applies to a certain type of
right-duty constellation.
