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MODEL OF NEUTRAL-INCLUSIVITY
BOOK OF INSTRUMENTS
RIGHT-DUTY CONSTELLATIONS

8.2 

SEVEN PARTIES WITH THEIR RIGHTS AND DUTIES

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 would 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.

Talking 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 most 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 which 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 which is involved in a special deal or relationship with 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.)

Together, the extrinsic, the intrinsic general and the special right-duty constellations lead us to acknowledge seven types of conceptual right-duty sets. They are:

in an extrinsic right-duty constellation:

  1. the first party's right (and reciprocal duty),
  2. the coexistent party's duty (half-right, and reciprocal right);

in an intrinsic general right-duty constellation:

  1. the first party's duty (half-right and indirect rights),
  2. the advantaged party's right (direct 'duty' and indirect duties),
  3. the disadvantaged party's duty (half-right and indirect right(s) ); and

in a special right-duty constellation:

  1. the first party's obligation (half-right and indirect right(s) ),
  2. the recipient (party)'s right (and indirect duty or duties).

This classification of rights and duties is a constructional one, not some intuitionist-impressionist array of alleged sorts of rights or duties with the characteristics they might have or not have. We will see that most (if not all) traditionally distinguished categories of rights, even pseudorights, fit in this pattern of right-duty constellations. Usually tho, they can only partially be accomodated, 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.


©MVVM, 41-57 ASWW
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