The Correlativity of Rights and DutiesAuthor(s): David LyonsSource: Noûs, Vol. 4, No. 1 (Feb., 1970), pp. 45-55Published by: WileyStable URL: http://www.jstor.org/stable/2214291 .

Accessed: 15/06/2014 10:25

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact support@jstor.org.

.

Wiley is collaborating with JSTOR to digitize, preserve and extend access to Noûs.

http://www.jstor.org

This content downloaded from 91.229.229.205 on Sun, 15 Jun 2014 10:25:34 AMAll use subject to JSTOR Terms and Conditions

FOURTH SYMPOSIUM

The Correlativity of Rights and Duties'

DAVID LYONS CORNELL UNIVERSITY

Commentators: MARcus SINGER UNIVERSITY OF WISCONSIN

DAViD BRAYBROOKE DALHOUSIE UNIVERSITY

It is commonly held that rights "correlate" with duties.2 By this is usually meant at least that rights imply duties (even if not all duties imply rights) and also that claims of individual rights need not be recognized unless backed by proof that corresponding obligations obtain. Such a doctrine of correlativity also forms part of the view that rights must be understood or analyzed in terms of duty or obligation.3

I shall examine this doctrine, beginning with a clear case of "correlativity," turning then to cases that diverge from it signifi- cantly. I argue that it is at best misleading to say that rights gener- ally "correlate" with duties.4 For the implications between them

1 To be presented in an A.P.A. symposium on Rights and Duties, May, 1970. Commentators will be D. Braybrooke and M. Singer.

2 See for example Bentham, Works, III, p. 159 and many recent writers including S. I. Benn and R. S. Peters, Social Principles and the Democratic State, pp. lOlf; R. B. Brandt, Ethical Theory: 433-441; E. F. Carritt, Ethical and Political Thinking, p. 77; R. Grice, The Grounds of Moral Judgment: 37f; J. Hospers, Human Conduct, p. 386; W. D. Lamont, The Principles of Moral Judgment: 80-95; W. D. Ross, The Right and the Good: 48-56.

8 The differences between having a duty and being under an obligation are, I think, peripheral to this discussion and can be ignored. I assume throughout that moral and legal rights are analogous.

4 Compare G. Williams, "The Concept of a Legal Liberty," Columbia Law Review, LVI (1956): 1129-1150. For the groundbreaking work on rights by jurists, one should start with W. N. Hohfeld, Fundamental Legal Concep- tions.

45

This content downloaded from 91.229.229.205 on Sun, 15 Jun 2014 10:25:34 AMAll use subject to JSTOR Terms and Conditions

46 NOCNS

vary substantially with the kind of right in question; it is not clear that all rights imply duties; and even if they do, to emphasize the common elements is to obscure important differences among the "correlations."

I

The following should exemplify the correlation of rights with duties. Suppose that Bernard owes Alvin ten dollars: we then have equal reason to ascribe a right to Alvin and a corresponding obli- gation to Bemard. Bemard's obligation is to pay Alvin ten dollars; but his obligation is also to Alvin-or, as we say, it is "owed" to Alvin in particular.r Alvin has a corresponding right, to be paid ten dollars by Bernard, which is held "against" him specifically.

Alvin's right and Bernard's obligation do not merely coexist: their coexistence is necessary, not contingent. Neither the right nor the obligation could arise without the other, and if one is dis- charged, waived, cancelled, voided, forfeited or otherwise ex- tinguished the other must be extinguished as well. For the "ground" of the obligation-the undischarged debt-is the "title" of the right.

This right and obligation entail one another. A statement ascribing one warrants fully an inference to the other, without appeal to contingent facts or substantive principles. It is not that facts or principles have no bearing on the case: asisertions of the right or obligation may presuppose principles deriving them from certain kinds of fact. But, if we are given either the right or the obligation we can infer the existence of the other.

Moreover, such implications are, as we might say, specific and the correlations determinate. A full statement of the right or the obligation implies a full specification of the other. It is not that Alvin's right implies merely that there is some coexisting obligation, but that Alvin's having this particular right implies that Bernard is under an obligation, to Alvin, to pay him ten dollars (and vice versa).

These tight correlations are quite common. They occur not only when debts (in the ordinary sense) are owed but also when certain other relations exist between two or more individuals-as a

5 See H. L. A. Hart, "Are There Any Natural Rights?", Philosophical Review, LXIV (1955): 179-181, and J. Feinberg, "Duties, Rights, and Claims," American Philosophical Quarterly, III (1966): 137-144.

This content downloaded from 91.229.229.205 on Sun, 15 Jun 2014 10:25:34 AMAll use subject to JSTOR Terms and Conditions

THE CORRELATIVITY OF RIGHTS AND DUTIES 47

consequence, for example, of promises and contracts, wrongful in- juries that require reparation, relationships such as parent to child and teacher to student. In such cases it seems natural to speak not only of A's having certain rights but of his having them "against" B in particular and likewise of B's reciprocally "owing" an obliga- tion to A.

There is, then, a familiar class of cases which can sensibly be talked about in terms of the "correlations" of rights and duties, and it is tempting to suppose that whenever "rights"and "duties" or "obligations" can be ascribed the pattern will recur. But while there are various implications between rights and duties, the pattern just sketched does not arise whenever rights and duties obtain. Before comparing our first kind of case to others, however, let us consider it more closely.

The doctrine of correlativity sometimes assumes a particularly strong form, when it is held that rights and duties do not merely imply one another but do so because they are conceptual correla- tives. This idea is that "there can be no right without a correspond- ing duty, or duty without a corresponding right, any more than there can be a husband without a wife, or a father without a child."6 The suggestion is most plausible, however, when restricted to cases like our original one, where rights are held "against" and duties "owed" specific individuals. The relation here is like that between "right" and "left." Just as statements of the form "A is to the right of B" and "B is to the left of A" entail one another in virtue of the correlative meanings of "to the right of' and "to the left of," so a statement of the form "A has a right against B" implies and is im- plied by a statement of the form "B has a duty (or, is under an obligation) to A" in virtue of the correlative meanings of "has a right against" and "has a duty (is under an obligation) to."

But this cannot be all there is to it, for the propositional functions, so stated, are incomplete. Rights and duties not only connect ordered pairs (or sets) of persons; they also have contents. By "contents" I mean, what it is that A has a right to and what it is that B has a duty or obligation to do. These must also have a definite relation if we are to be able to infer the right or the obliga- tion from the other directly, and a fortiori if rights and duties are to be regarded, even in this limited class of cases, as conceptual correlatives. For just as Alvin's right against Bernard does not

6 Salmond on Jurisprudence ( 11th edn., by G. Williams), p. 264.

This content downloaded from 91.229.229.205 on Sun, 15 Jun 2014 10:25:34 AMAll use subject to JSTOR Terms and Conditions

48 NODS

correlate with Dana's obligation to Charles, so Alvin's right to be paid ten dollars by Bernard does not correlate with Bernard's obli- gation to apologize to Alvin. There can be independent relations of rights and duties between the same two persons.

If A's right and B's obligation entail one another as we are supposing, there should be a formal rule connecting their contents. Examples suggest such a rule: A's right to be obeyed by B links with B's duty to obey A, just as Alvin's right to be paid by Bernard goes with Bernard's obligation to pay Alvin. The rule is that the expres- sion of the content of the right is related to the expression of the content of the obligation as the passive is related to the active voice.7 Were this the rule we could reasonably say that the right and the obligation have the same content, for they would both concern (in just verbally different ways) some required behavior of B's with respect to A. This would support the thesis of con- ceptual correlativity and explain why it is so clear not only that such rights imply corresponding obligations but also what those obligations are and upon whom they are incumbent.

There are complications I cannot deal with here. I have sketched a notion of "conceptual correlativity" restricted to rights held "against" and duties or obligations "owed" to specific persons. These do not exhaust the classes of rights and obligations: such restrictions need explaining and justifying. The notion is also restricted to "passive" rights and "active" obligations; and one might wonder whether some "active" rights do not also correlate with obligations. I shall not try to answer this, but I shall argue that some "active" rights (rights to do things) do not fit the pattern delineated.

Before going on, finally, I wish to protect my limited claims against possible objections to my characterization of Alvin's right and thus to the formal rule and the restricted thesis of conceptual correlativity. Some may think it more felicitous to say that Alvin has a right to expect or demand payment than a right to be paid. But "expect" is too weak: one might have a right to expect money even if none is owed; and if there is a debt, the right is not just to expect payment but (one is tempted to say) to the money itself. This goes too far, of course, for the right is not to any specific bit of cash but only to payment of a certain amount-my way of describing it. "Demand" seems too strong: one does not have a right to demand

'7 Compare M. Radin, "A Restatement of Hohfeld," Harvard Law Re- view, LI (1938), p. 1150.

This content downloaded from 91.229.229.205 on Sun, 15 Jun 2014 10:25:34 AMAll use subject to JSTOR Terms and Conditions

THE COREELATIVITY OF RIGHTS AND DUTIES 49

payment unless one's debtor fails or at least threatens not to pay- in other words, does not respect one's right to be paid. Another possible referent of "right to demand payment" is the "right" one has to refuse to forgive a debt-which complements the "right" one has to forgive it, both of which seem but constituents of the complex right to be paid. These objections thus seem to fail.

Nevertheless, it might be thought that a "right to be paid ten dollars by Bernard" could not be the one that correlates with Bernard's obligation to pay Alvin, for anyone might have the right so described whether or not Bernard owes him anything. But this is mistaken: Alvin's right can be described as a right held "against Bernard"-which indicates that Alvin has a legitimate claim he may press or waive as he chooses. The right of a noncreditor, by contrast, cannot be qualified as a right "against Bernard," for it rests on no such special claim relation (and it is more naturally described as a right to receive or accept money anyway).

Consequently, I see no reason to redescribe the right, and I shall assume that such rights and obligations are but two sides of the same coin.

II

In the sort of case with which we began, therefore, to say that someone has a right seems just another way of saying that someone else is under a certain type of obligation. Let us compare that with a new example. Suppose that Alvin is atop a soap box speaking to a crowd against United States military involvement in Vietnam. His act is perfectly lawful, but he is assaulted by some private citizens, driven from the box and silenced. Their behavior is unlawful and constitutes unwarranted and prohibited interference with the exercise of his legal rights. In saying this we may refer to his general right of free speech or to a specific right to stand there addressing the crowd. In either case the right might be construed as a right to do something. How is that to be understood?

A common view is that such a right consists of an area of free choice protected by prohibitions against interference. For example, to say that Alvin has a legal right to do X is, on this view, to say that (1) it is not unlawful for Alvin to do X (or, per- haps, to refrain from doing it) and (2) it is unlawful for others to interfere with Alvin's doing X. But this needs adjusting if we seek a schema that could be applied to moral rights as well. We

This content downloaded from 91.229.229.205 on Sun, 15 Jun 2014 10:25:34 AMAll use subject to JSTOR Terms and Conditions

50 NO*S

cannot simply substitute "immoral" for "unlawful" in (1) because we should allow in morals (what we may not need to allow in law) that there are rights it can be wrong to exercise. We might say that there is a nonvacuous presumption which must be rebutted before it can be shown that Alvin's doing X is wrong. But our argu- ment does not require us to pursue this.

Can such rights be assimilated to those with which we began? I think not. I shall note some counter-indications and then develop one particular difficulty. To be assimilated, it must be the case that the assertion of Alvin's right to stand on the soap box addressing the crowd is equivalent to the assertion of correlative obligations incumbent on others. There is at once a difficulty I shall mention and waive. It is not clear that the relevant prohibitions (against assault, and so on) are properly characterized as "duties" or "obligations";8 but unless they are there is no chance of construing such rights on the pattern of our first example. It is also unclear that assertions of these "obligations" exhaust the content of the right; for such "active" rights seem to say in part that the behavior in question is at least prima facie permissible or unobjectionable; while Alvin's right to be paid says no such a thing about his own behavior. Also, one who emphasizes the "free choice" element of "active" rights might think it comparable to the "free choice" enjoyed by Alvin; but the latter is the private "power" or "capacity" he has to change his relation to Bernard-by forgiving the debt, waiving his right and cancelling Bernard's obligation or refusing to do so. Nothing corresponds to this in the sort of 'active" right we are considering.

What I wish to scrutinize more closely, however, is the view that the prohibitions on others' behavior constitute not only an obligation but also one that stands to "active" rights just as Bernard's obligation to pay Alvin correlates with Alvin's right. Before pro- ceeding, a digression to underscore my general thesis that rights relate in different ways to obligations.

Alvin's Constitutional right of free speech cannot be construed as an area of free choice protected by others' obligations. This right is conferred by the First Amendment, which deprives Congress and other governmental agencies of the authority (tthe legislative "power or "capacity") to enact laws requiring or prohibiting speech of certain kinds (among other things). If the Supreme

8 See Hart, op. cit., 178 and 181, and also his "Legal and Moral Obliga- tion," in Essays in Moral Philosophy (ed. by Melden).

This content downloaded from 91.229.229.205 on Sun, 15 Jun 2014 10:25:34 AMAll use subject to JSTOR Terms and Conditions

THE CORRELATIVITY OF RIGHTS AND DUTIES 51

Court reviews such a law it finds it null and void, with no legal effect.

Now it is easy to confuse this right with an area of free choice protected by prohibitions against interference, for the latter can be inferred from the former and standing conditions. If Congress cannot restrict one's speech then it is not unlawful for one to speak or remain silent; and since one is generally protected against inter- ference (as I shall argue) others also have "obligations not to inter- fere." But such Constitutional rights are not the same as these protected areas of choice since we could lose the former and retain the latter. To see this, imagine the First Amendment repealed: then Congress would acquire the "power" to enact legally binding laws restricting speech now unrestrictable. But Congress could have this power without exercising it, and thus it could happen that speech was no more restricted than it is right now and that one's speaking and remaining silent were equally lawful and protected against interference even though we could no longer truly say that we have Constitutional rights of free speech.

These Constitutional rights exemplify what some jurists call "immunities,"9 for to assert them is to say that protected areas of speech cannot be taken away. Alvin's Constitutional right has a conceptual correlative: but it is not an obligation; it is a legislative "disability," the assertion of which says that Congress is not em- powered to enact certain laws.

It may still be tempting to search for 'correlative" obliga- tions here; but the candidates are implausible. The Constitutional right of free speech is independent of, for example, the obligation not to assault that was breached by those who silenced Alvin. Nor does it correlate with obligations incumbent on Congress. There may be some point in speaking of a Congressional "obligation" not to (try to) exceed one's legislative powers or, more specifically, not to restrict speech guaranteed free by the First Amendment. But this "obligation" would be a queer one, for the members of Congress are not subject to civil or criminal action against them if they "breach" it by enacting unconstitutional laws. If they do this their actions could be described as "illegal" or "unlawfurl only in the sense of "invalid": it is not that they would break the law in so act- ing, but rather that they would fail to make valid and binding law.

D On "immunities," "disabilities" and "powers," see Hobfeld, op. cit., or the helpful summary in Salmond on Jurisprudence, ch. 10.

This content downloaded from 91.229.229.205 on Sun, 15 Jun 2014 10:25:34 AMAll use subject to JSTOR Terms and Conditions

52 OCS

"Immunities" are probably not thought of by philosophers who proclaim the general correlativity of rights and duties. But that slogan is presumably applied to Alvin's right to address the crowd, to which we now return.

The men assaulting Alvin acted unlawfully and may be said to have breached a legal obligation. They might have done the same in other ways; by threatening, coercing, forcibly restraining or abducting him, for example. These are at least the usual ways of interfering with the exercise of someone's rights, and conse- quently the prohibitions upon such forms of behavior (either in law or morals) might be thought to constitute an aggregate "obligation not to interfere" which correlates with Alvin's right. But this is not plausible, since others' having these obligations does not entail that Alvin has any particular right to do anything. If so, they cannot correlate with Alvin's right according to the pattern discerned before. I shall explain.

It sometimes seems to be assumed that Alvin is not protected by prohibitions on our behavior unless he has a right to do what he is doing, which makes it seem as if Alvin's right (when he has one) and the prohibitions are more closely connected than they actually are. But this assumption is false. Most of the things that we are prohibited from doing to or with respect to Alvin when he is acting within his rights we are also prohibited (by law and morals) from doing when he has no right to act as he does. If Alvin's soap box talk had been illegal and he had acted without a legal right, those who assaulted him would still have acted illegally themselves. Similarly, if it could be shown that Alvin had no moral right to make that speech it would not follow that we would have been morally entitled to interfere. I have no right to kill Alvin in order to prevent his stealing candy from a baby; I have no right to gag him to prevent his lying; I have no right to torture him to dissuade him from breaking a promise. This is not to say that Alvin's acting outside his rights has no bearing on the way we may treat him-only that it does not entitle us to treat him as we please. In some cases we are allowed to interfere; in order to defend our- selves, for example; but these seem to be special exceptions to the ordinary sweeping prohibitions against killing and asisault. In other words, from the fact that others: are prohibited from acting in ways that constitute interference with A's doing X it does not follow that A has a right to do X. So the ordinary legal and moral prohibitions which serve to protect someone in the exercise of his

This content downloaded from 91.229.229.205 on Sun, 15 Jun 2014 10:25:34 AMAll use subject to JSTOR Terms and Conditions

THE CORRELATIVITY OF RIGHTS AND DUTEES 53

rights do not logically correlate with those rights since others are, in general, under such obligations even when one does not have a right to act as he does.

Before considering some rebuttals, we should deal with the possible inference in the other direction-from "active" rights to protecting obligations-for this alleged entailment is all that is sometimes meant by the equivocal term "correlativity." It must be borne in mind, however, that if the inference works in this direction alone, there is a significant disanalogy between such "active" rights and Alvin's right to be paid.

From the fact that Alvin has a right to do X does it follow that others are prohibited (in law or morals) from interfering with his doing X? It should be obvious now why one may be tempted to say yes-and also why at least some of the grounds for saying yes are insufficient. Since others are prohibited in general from (e.g.) assaulting, threatening, coercing and forcibly restraining Alvin, they are prohibited from doing such things when they con- stitute interference with the exercise of his rights. And thus counter- examples to the alleged entailment between such "active" rights and these "obligations not to interfere" will be impossible. It may seem as if these obligations follow from, are "part" of or "correlate" with Alvin's right. But once we see that these obligations apply generally, whether or not Alvin acts within his rights, and that this is what makes it seem as if they follow from Alvin's right, we should no longer be tempted to say that they do follow.

Let this be granted. I shall consider two ways in which a partisan of general correlativity might try to save that doctrine. He might claim that, besides the ordinary obligations mentioned, there are also extraordinary or special obligations that strictly correlate with "active" rights. For the ways in which one might interfere with Alvin's speaking are not, perhaps, exhausted by the class of things the ordinary prohibitions cover; and some of this surplus might be prohibited as well. Certain forms of verbal abuse might be prohibited when used against a public speaker, for example, but not otherwise. If so, the obligation imposed would correlate with Alvin's right to speak publicly.

But this is not a promising line of defense, for it is a con- tingent matter in the law, at least, whether any such special obliga- tions are imposed; and so the existence of such obligations would not be implied by (though they would imply) the right to speak publicly. One might deny this if he were willing to say something

This content downloaded from 91.229.229.205 on Sun, 15 Jun 2014 10:25:34 AMAll use subject to JSTOR Terms and Conditions

54 NOUS

like (a) that any relevant change in the law (however minor) changes the sense of the statement that Alvin "has a right to speak publicly," or (b) that any such change destroys one right and creates another in its place, though the two would be described identically. But I see no reason to construe the case in such a way except to defend at all costs a general doctrine of correlativity. Furthermore, unless we suppose that the analysis of moral and legal rights diverges at this point, any such special obligations in morals are not implied by moral "active" rights either.

Another line of defense is given by the claim that there is a general obligation not to interfere with another person, an obliga- tion not exhausted by the ordinary prohibitions. For one is rarely justified (in morals at least) in interfering with another's doing what he has a right to do. But this suggestion too is covered by our previous remarks. On the one hand, the existence of a general legal obligation not to interfere is a contingent matter (it may protect some forms of behavior and not others). And on the other hand, I think it also true that one is rarely justified on moral grounds in interfering with another whether or not he has a right to do what he is doing-unless one is defending oneself or preventing substantial hann to others.

III Am I claiming, then, that it is not generally true that rights

"correlate" with duties or obligations-even in the minimal sense of implying them? Well, yes and no. Our Constitutional right of free speech does not correlate with duties in anything like the way that Alvin's right correlates with Bernard's obligation. But given certain assumptions there may be ways of deriving statements about some obligation or other from the assertion of such a right. It would be most misleading, however, to call the implication a case of "correlativity" if that term is also used to characterize the very tight, determinate relations between rights and duties exemplified by our first example. I am not even prepared to grant that run-of- the-mill "active" rights directly imply specific obligations not to interfere. It seems correct and natural to say, for example, that a motorist has a right to make a right, turn on a red light in California which he does not have in New York State, in virtue of the differences between the traffic laws of those two states, whereby making a right turn on a red light is prohibited unless explicitly

This content downloaded from 91.229.229.205 on Sun, 15 Jun 2014 10:25:34 AMAll use subject to JSTOR Terms and Conditions

ITHE CORRELATIVITY OF RIGHTS AND DUTIES 55

authorized in New York, whereas it is permitted, and indeed re- quired when traffic allows, in California. This example may help debunk several dogmas about rights.

First, what implications does the assertion of this right have about others' obligations? The right does not impose on other motorists an obligation to stay out of one's lane, for example; if there is such an obligation (e.g., not to block traffic) its existence seems independent. It seems more plausible to say that this right imposes obligations on law-enforcement officials not to interfere with one's making a right turn (when allowed by the conditions of the right). But we know that a policeman may stop a car for various reasons even though the driver is not violating any regu- lations; so what sort of interference is excluded by this right? and by whom specifically? A policeman may admittedly be under an obligation not to stop or disturb a private citizen without cause- but can we say that that obligation is "correlative" with my right to make a right turn on a red light in California?

Second, some might maintain that rights imply "correlative" duties because the point of claiming or asserting a right often is to deter, discourage, prevent, protest or stop unwarranted interference. But there are other ways of accounting for this phenomenon. More- over, assertions about rights can have other points. Our traffic law example could be used to remind, contrast or instruct, and would not likely be used to protest unwarranted interference.

Last, it is generally supposed that an "active" right essentially involves an element of choice in the sense that one cannot have a right to do something without having the right to refrain. But this assumption seems falsified by our example. Choice is ruled out, as it often is, because the behavior is not only allowed but required. Ours is not an isolated example: one can think of many possible cases. It seems no contradiction to imagine, say, that one has the right to vote but is also required by law to vote. It may sometimes be (for various reasons) misleading to speak of a right to do something when one also has an obligation to do it; but even if misleading it can be true; and, indeed, when challenged one can sometimes support one's claim of a right to do something by show- ing that one has a positive obligation to do it.10

10 Earlier versions of this paper were read at Stanford, Cornell, Michigan, and Rutgers universities, where I received many helpful comments and sug- gestions.

This content downloaded from 91.229.229.205 on Sun, 15 Jun 2014 10:25:34 AMAll use subject to JSTOR Terms and Conditions