8.2.4 |
THE SPECIAL INTRINSIC RIGHT-DUTY CONSTELLATION |
The basic member of a special right-duty constellation is
an obligation generated by a particular act or in a particular
situation.
(See
figure I.8.2.4.1 for a schematic
representation of this constellation.)
With the first party's particular act, or the particular situation it is
in, some special relationship has been formed between this party and a
certain other party.
The first party's duty is basically a duty to perform a doxastically right
act, or an activating duty.
As a special duty it is also called "an obligation".
(No distinction
is often drawn at all between 'duties' and 'obligations' in
everyday language and theories of right. Some theorists refuse
to employ the word duty for 'special obligations'. We shall
use the word obligation in the qualified sense of special
duty, so that we keep one term, duty, for everything that
is on the other side of the same coin as the one on which rights
are found.)
The 'right' matching the duty of the person(s) first addressed
is the special half-right to perform a 'right' act in
terms of the doctrine concerned. The right correlated with the
same duty, but now in the other party related to the first
party in a special way, is a right against the first party itself.
Just as in the case of general, intrinsic
constellations where the duty was activating, it is also a
passive right, a 'positive right', a 'right of recipience' and a
'claim right'. There are important differences tho with the
advantaged party in an intrinsic general right-duty constellation.
First of all, the question whether the second party in a
special constellation is advantaged or not, does not matter: it
has a right to the first party's performance (which may,
physically speaking, be an omission), whether it will benefit
the second party or not. Or, it has a special right to (accept)
the consequence(s) of the first party's act, even when
these consequences would be harmful. (If it does not have this
right, then on the basis of a general duty to do 'good' or not
to do 'bad', also to oneself.) Hence, the second party may be a
recipient party, but what it has a right to receive is not
necessarily advantageous.
Another significant difference with an advantaged party's
general right is that a recipient party does not have to
exercise its special right. It does not have to accept the
first party's performance or its consequences, it may
release this party from its obligation. In that the recipient
party has the liberty to accept or not to accept, its right
could be termed "discretionary" and "exercisable". (Just as
with other pairs of rights traditionally distinguished, so
these terms do not fit our scheme very well.) This also means
that there is no direct duty, no direct obligation,
corresponding to the recipient party's right.
There are, of course, indirect rights and duties again which
are associated with the party's membership of the particular
institution(s) in terms of which the first party's action
and obligation are defined in the first place. Hence, the
first party's indirect right(s) are the accompanying
right(s) of membership, and the recipient party's indirect duty
or duties, the accompanying duty or duties of membership of the
same institution or system (which may be a whole community).
Since the direct duty and right are not general, there is no
reciprocity in the strict, theoretical sense, but because of the
existence of indirect, accompanying rights and duties, the
situation is practically the same in this respect as in general
right-duty constellations. It seems not necessary to introduce a
proviso to the effect that the recipient party must belong to a
category of beings which are able to discharge obligations.
We may assume that a being which is able to perform (or omit) a
particular kind of act in terms of the institution (like making
or not making a promise) is also able to perform (or omit) the
ensuing obligatory act in terms of the same institution (like
keeping or breaking a promise).
Conceptually speaking, a person may come under a duty or
obligation towards other living beings in two fundamentally
different ways. Firstly,
'e may voluntarily create a new
situation
'imself by entering into a contract
or by making an agreement with one or more other persons; a promise is
such an example. 'E may also voluntarily participate in certain
cooperative undertakings with institutionally defined roles. Such
roles are associated with certain duties and rights which may be
described in terms of tasks, functions, powers, privileges, and
so on. Secondly, the person in question may get unintentionally
or involuntarily involved in a situation which results in a
'special relationship' with one or more particular other living
beings or systems (such as ecosystems). For example, 'e may just
happen to be the only one around. Or, 'e may be partially
responsible because of something 'e caused, albeit not intentionally.
It is also possible that 'e has become involved in
such a relationship because of what someone else did, and which
has now to be returned. (Whether all these kinds of obligation
are really to be recognized is a question of the particular
normative doctrine espoused. Even if one conceptually acknowledges
such right-duty situations, it is possible and preferable
to explain duties in unintended situations by referring to a
general right-duty constellation which generates a 'duty in
personam' in a specified context.)
Like general intrinsic rights and duties, special rights and
duties are not fundamental, altho the doctrinal principles on
which they are believed to rest ultimately are not seldom
expressed in deontological terms, hardly different from the
content of the first party's obligation itself.
A primary special duty does not follow from a doctrinal
principle in vacuo. It is only engendered if the first
party performs a certain kind of act, or if it gets
involved in a certain kind of situation. And it is a different
matter altogether whether this party should have performed
this act to start with. Thus, it is one thing to say that a person
A, who has promised to person B to do X, is obligated to keep
'er
promise and therefore to do X; it is quite another
thing to say that person A should promise to do X, or should do
X, whether 'e promised it or not.
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