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:
- 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-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.
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