8.2.2 |
THE EXTRINSIC RIGHT-DUTY CONSTELLATION |
As illustrated in
figure I.8.2.2.1 the basic member
of an extrinsic right-duty constellation is the first party's
general right to do or not to do something. Because it
is a right to do or not to do, to act or to omit, it does not
directly correspond to any duty of the first party itself.
(If it did, it would be either a right to do or a right
not to do.) Such a right which does not depend on someone
else's acting or duty to act is a kind of permission we shall
henceforth call "an active right". (Some have also called it
"a right of action" or "right in the active voice".) It belongs
to the traditional class of 'negative rights' in that it is a
right to a nonaction or forbearance by others. These 'negative
rights' are said to correlate with 'negative duties', that is,
(nonactivating) duties not to act or to forbear. Typical of an
active right such as that of the first party in this constellation
is also the element of liberty in it: the freedom to do or
not to do as one pleases, or as one judges best. For
those recognizing right elements it would therefore be a 'liberty
right'. If the right to X or not to X, when the right-holder has
a free choice, is called "a discretionary right", then the
extrinsic right of the first party is such a discretionary
right. (It is contrasted with a 'mandatory right', when only one
way of exercising it is permitted.) A discretionary right is an
'exercisable right'.
Since the primary element is a general right, like all rights
and duties in this constellation, it is a 'right against
the world at large', that is, not against any particular individual
or group. Furthermore, it is a right the bearer has (or would
have), conceptually speaking, even if the act or omission
'e has a right to is not justifiable
on the basis of a particular, teleological or other, doctrine. It is
this kind of active, extrinsic right which is, indeed, a trump over
specific goals, and which includes the right to be 'moral' or
'immoral' in terms of a specific normative doctrine (but not in
terms of the principle or set of principles on which the justification of
the extrinsic right itself rests).
The duty with which the first party's right to do or
not to do something may be said to correlate is the duty not to
interfere. Since this is a duty not to do something, we shall
refer to it as a 'nonactivating duty'. (It is a 'negative
duty' in traditional terminology.) Now, this duty is the duty
of the other party playing a role in the same constellation,
namely all individuals or groups meeting or dealing with the
first party. We shall call this "the coexistent party",
and as it is not a definite individual or group, it may
be conceived of, again, as 'the world at large'. It is this
extrinsic duty of the coexistent party which enables the first
party to exercise its right.
Does the second party in an extrinsic right-duty constellation
have any right itself? Yes and no. Yes, because the
coexistent party has the 'right' not to interfere, and solely by
the principle(s) of the extrinsic constellation itself nobody
can force it to interfere with the first party's freedom
of action. If forced to, the coexistent party, or every one of
its members, can even claim that it has the 'right' not to
interfere. On the other hand, the 'right' is mandatory and
nonexercisable, or only a 'half-liberty'. Some theorists have not
been willing to consider such a 'right' a genuine right at all.
Unless it is a right to something advantageous (in an intrinsic
general constellation), we ourselves shall label such a direct
'right' "a half-right". Since this half-right is nonactivating
(like the corresponding same-party duty), it should not be
referred to as a 'right of action' or 'active right',
altho it
is not passive in the traditional sense either. For us it is
merely a question of definition whether a half-right is a right
in the first place, because the one or the other choice of
definition does in no way alter our conceptual frame of
reference. Whether or not the coexistent party is believed to
have a direct right, it ought not to interfere with the
first party's right. And this norm is what counts in the
end.
The coexistent party may not have any full, direct right as a
coexistent party, indirectly it has the same right to do or not
to do something as the first party. This is because the
right is general and applies to all: it is reciprocal. Moreover,
as there is no direct, same-party duty corresponding to this
discretionary right, the reciprocity is unconditional, for the
duty and right can be reciprocated for all concerned. This
reciprocity entails that the primary right-holder has the
indirect, general duty not to interfere with others either.
The direct duty, the nonactivating half-right and the indirect
right and duty in an extrinsic right-duty constellation
all derive from the first party's extrinsic right; they
are created by this right, as it were. But what does this right
itself derive from, except, maybe, from a more general or
abstract, extrinsic right of the first party? If it does
not in turn derive from another extrinsic right, it is fundamental
and based on or justified by means of one or more
nondoctrinal, normative principles. That is why it is extrinsic:
extrinsic to a particular doctrine and its principles. For
example, if a fundamental extrinsic right is somehow combined
with a teleological or deontological system, it is extrinsic to
that system. (If not, then it would be intrinsic by definition.)
We will see later that the only sensible interpretation of
nondoctrinal in this context is metadoctrinal. Every
extrinsic active right to do or not to do something rests
ultimately on one or more metadoctrinal normative principles.
|