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MODEL OF NEUTRAL-INCLUSIVITY
BOOK OF INSTRUMENTS
RIGHT-DUTY CONSTELLATIONS
THE BASICS OF HAVING A RIGHT

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 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.

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 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, '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 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 this, and it implies that people can claim to do this on the basis of the particular morality in question. It is this what 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 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.


©MVVM, 41-57 ASWW
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