Q. 5.”Rights and duties are necessarily correlative.” Discuss. OR Critically examine the statement that “rights and duties are correlated”.
Ans. Whether rights and duties are correlative—There are two views about the question whether rights and duties are necessarily correlative.
According to one view, right is necessarily the correlative of duty. As duty is a burden enforced by law, so right is freedom allowed or power conferred by law. Therefore every right implies duty against somebody.
According to Salmond there can be no right without a correspond-ing duty, and no duty without a corresponding right any more than there can be a husband without a wife, or father without a child. Keeton follows this view.
The other view is that rights and duties are not necessarily correla-tive. According to this view duties are divided into relative and absolute, relative duties are those which have corresponding rights, absolute du-ties are those which have none.
Absolute duties—Austin thinks that there are duties which he names as absolute duties to which there are no corresponding rights. There are four kinds of such absolute duties; namely-
(1) Duties to self; for instance, duty not to commit suicide or get intoxicated.
(2) Duty to undeterminate person or to the public for instance, duty not to commit nuisance.
(3) Duty to the Sovereign or the State. Hibbert. Alien and Markby are also of the view that the duty of the subject towards the State is absolute.
(4) Duty to one animal not a human being.
Austin’s doctrine has been followed by Holland and Allen. Allen says that there are no correlative rights in the State. The duties enforced by the criminal law are absolute duty. Moreover when the tax is imposed by the State, the State gets a right to collect the tax and people/subjects become duty bound to pay the taxes so imposed by the State.
Criticism of Austin’s view—Austin ‘s theory of absolute duties is subject to the following criticism :
(a) The duty not to commit suicide is a part of criminal law.
(b) Duties towards God are not legal duties.
(c) Duties owed to State correspond to right.
Following the view of Salmond, Pawn says, “We cannot have a right without a corresponding duty or a duty without a corresponding right.”
On the basis of the analysis of the conceptions of right, liberty, power and immunity,
Salmond suggests that—
(1) right is that which other persons ought to do in my behalf;
(2) liberty is that which I may do without the interference of law;
(3) power is that which I can do effectively against others;
(4) immunity is that which other persons cannot do effectively in respect of me.
The concept of right and its legal correlatives can be better under-stood by the help of Hohfeld’s Table representing the inter-relationship inherent between these jural concepts—
In the above Tables, the four terms in the first rectangle are related to each other in more or less in the same way as the four terms in the second rectangle.
Salmond has preferred to use the word ‘right’ in place of ‘claim’. But
this may lead to some confusion because the word ‘claim’ indicates what one can force another to do or to refrain from doing. The person who can so force is said to have a claim and the person who can be made to act or forbear is said to have a duty. Therefore, the word claim seems to be more appropriate than the word ‘right’ in the above Table.
The vertical arrows in these Tables connect jural co-relatives. Thus the corelative of right is duty and co-relative of liberty is ‘No-right’. Likewise, the co-relative of ‘Power’ is ‘liberty’ and that of ‘immunity’ is `disability’.
The horizontal arrows connect the contradictories. Thus liberty or `No duty’ is the absence of right in another. Similarly immunity is the absence of power in another.
The above classification as given by Hohfeld in the Tubue form is significant because it shows that a legal relationship does not give rise to only one right and one duty but also gives rise to concepts such as claim, immunity, power etc. which should also be taken into consideration.