David Lyons the correlativity

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The Correlativity of Rights and Duties

Author(s): David LyonsSource: Noûs, Vol. 4, No. 1 (Feb., 1970), pp. 45-55Published by: WileyStable URL: http://www.jstor.org/stable/2214291Accessed: 10-06-2015 15:55 UTC

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FOURTH

SYMPOSIUM

The

Correlativity

f

Rights

and

Duties'

DAVID

LYONS

CORNELL

UNIVERSITY

Commentators:MARcus

SINGER

UNIVERSITY

OF

WISCONSIN

DAViD

BRAYBROOKE

ALHOUSIE

UNIVERSITY

It

is

commonly

held that

rights

correlate

with duties.2

By

this is

usuallymeant at

least

that rights

imply

duties

(even if not

all

duties

imply

rights) and

also

that

claims of

individual

rights

need not be recognizedunless backedby proof that corresponding

obligationsobtain.

Such a

doctrine of

correlativity

also forms

part

of the

view that

rights

must be

understoodor

analyzedin

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. Commentatorswill be D. Braybrookeand 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

groundbreakingwork

on

rights

by jurists, one should start with W. N. Hohfeld, Fundamental

Legal

Concep-

tions.

45

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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

o

Alvinin particular.rAlvinhas a corresponding ight, 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

f

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 correlationsdeterminate.A full statementof 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 s

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.







THE CORRELATIVITY OF

RIGHTS AND

DUTIES 47

consequence,

for example, of promises

and contracts,wrongful

in-

juries that

require reparation,

relationships uch

as parent

to child

and teacher

to student.

In such cases it seems

naturalto speak not

only of A's having certain

rights but of his

having them

against

B in particularand likewise of B's reciprocally owing an obliga-

tion to A.

There

is, then,

a

familiar

class of cases which can

sensibly

be talkedabout in terms

of the

correlations f rights

and duties,

and it is tempting to

suppose that

whenever rights and

duties or

obligations an be

ascribed he

pattern will recur. But

while there

are various

mplicationsbetween

rights and

duties, the patternjust

sketcheddoes 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

ometimes

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

correspondingright, any

more

than

there

can

be

a

husband

without

a

wife, or

a

fatherwithout

a

child. 6

The suggestion

is most

plausible,however,

when

restrictedto

cases

like our original one, where rights are held against and duties

owed

specific individuals.

The relation here

is

like

that

between

right

nd left. Just

as

statements

of the

form

A

is to the right

of

B

and

Bis

to

the

left of

A entail one another n virtue

of

the

correlativemeanings

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 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.







48 NODS

correlate

with

Dana's

obligation

to

Charles,

so

Alvin's

right

to

be

paid ten dollars

by

Bernarddoes 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 anotheras we are

supposing, here should be a formal rule

connecting

their

contents.

Examples

uggest such a rule: A's right to be

obeyed by

B links with

B's duty to obey

A, just as Alvin'sright to be paid by Bernardgoes

with

Bernard's bligation 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 correlativityand explain why it is

so clear not only

that

such

rights

imply correspondingobligationsbut also what those

obligationsare and upon whom they are

incumbent.

There

are

complications

I

cannot

deal with here.

I

have

sketched a notion

of conceptualcorrelativity estricted to rights

held

against and duties or obligations

owed o

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.

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 f Alvin's right

and thus to the formalrule and the restricted thesis of conceptual

correlativity.

Some

may

think

it more

felicitous to

say that Alvin

has a right to

expect or

demand

paymentthan a right to be paid. But

expect

s 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 t.

Demand eems 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.







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 prohibitionsagainst interference,

or

the

latter

can be inferred rom the formerand standingconditions. f Congress

cannot restrictone'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 Amendmentrepealed:then

Congress would acquire the

power o 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 restrictedthan it is right now and that

one's

speaking and remaining silent

were equally lawful and protected

against interferenceeven though

we could no longer truly say

that

we have Constitutional ights

of free speech.

These Constitutionalrights

exemplify what some jurists call

immunities, 9or 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;

t

is a

legislative

disability, he assertionof which says that Congressis 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 ree by the First Amendment.But

this

obligation

would be

a

queer

one,

for

the membersof Congress

are

not

subject

to civil

or

criminal action

against

them

if

they

breach

t

by enacting

unconstitutional

aws. If

they

do

this

their

actions could

be described as

illegal

or

unlawfurl

only

in

the

sense

of

invalid :

t 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

n Salmond on

Jurisprudence, h. 10.







52CS

Immunities re

probablynot thought of by

philosophers

who

proclaim the general

correlativity of rights and

duties.

But that

slogan is

presumably

applied to Alvin'sright 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'srights,

and conse-

quently the

prohibitions

upon suchforms of behavior

(either

in law

or

morals)

might be thought to

constitute an

aggregate obligation

not to

interfere which correlateswith

Alvin'sright.

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

sometimesseems

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

s 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'ssoap

box

talk

had been illegal

and he had

acted without a

legal right,

those who

assaulted

him

would still

have

acted

illegally

themselves.

Similarly,

f

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. n

other

words,

from

the

fact that

others:

re prohibitedfrom 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 egal and

moral

prohibitions

which

serve

to

protect

someone in the exercise of

his







THE

CORRELATIVITY OF RIGHTS AND DUTEES 53

rights do not logically correlate with those rights since others are,

in general, under such obligationseven 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

sometimesmeant by the equivocal term correlativity. t

must be

borne in

mind, however, that

if

the

inference works

in this direction

alone, there is a significantdisanalogybetween such active ights

and Alvin'sright 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 interferingwith

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 interferencewith the exerciseof his rights.

And

thus

counter-

examples to the alleged entailment between such active rights

and these

obligationsnot to interfere will be impossible.

It

may

seem

as

if

these obligations ollow from, are part f 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'sright, 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 prohibitionscover; 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

speakpublicly.

But

this is not a

promisingline

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







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 reasonto construe the case in such a way

except to defend

at all

costs a

general

doctrine of

correlativity.

Furthermore, nless we

suppose

that the

analysisof moral and

legal

rights

diverges

at this point,

any such

special

obligations n morals

are not

implied

by

moral active ights

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

moralsat

least) in

interferingwith

another'sdoing 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

generallegal

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

rarelyjustified

on moral grounds

in

interfering

with

anotherwhether 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 correlatewith

duties

in

anything like

the way

that Alvin's

right correlates

with

Bernard'sobligation. But

given

certain

assumptions

here

may

be

ways

of

deriving

statementsabout

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 f that term

is

also used to

characterize

he 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 differencesbetween

the

traffic aws of those two states,whereby

making a

right

turn

on

a

red

light is

prohibited unless

explicitly







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 implicationsdoes 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

s

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

nterference.

But there are other ways of accounting

or

this phenomenon.More-

over,

assertionsabout

rights

can have

other

points.

Our traffic aw

example could be used to remind,contrastor instruct,and would

not likely be used

to

protest

unwarranted

nterference.

Last,

it

is generally supposed

that an

active

ight 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 assumptionseems

falsified

by our example. Choice is ruled out,

as

it often is, because

the

behavior s not

only allowed but required.

Ours is not

an

isolated

example:

one

can think

of

many possible

cases.

It

seems

no contradiction

o

imagine, say,

that

one has the

right to vote but is also requiredby 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

sometimessupport

one's

claim

of

a

right to do somethingby 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.

David Lyons the correlativity

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