Duties

By duty scholars, judges and legislators usually mean the position of a natural or legal person obliged towards one or more others having a right whose content is the same claim. According to the classical definitions of W.H. Hohfeld, if there is agreement about four different uses of the term ‘right’, the term ‘duty’ can be described either as the ‘jural opposite’ of ‘privilege’ or as the ‘correlative’ of ‘right’ in its widest and most general meaning. In the first sense a privilege is a mere derogation to a general duty, while in the second a right or a freedom necessarily implies the contrary absolute obligation not to interfere with it or not to create hurdles to its exercise. One of his European commentators, Manfred Moriz, proposes to change the opposition right-duty into a renamed couple claim-opposition. He also reminds that according to Austin there is no necessary correlation, using Hohfeld’s terminology, between duties and rights because absolute duties have no counterpart, while on the contrary all rights have corresponding duties. Moriz also complains that all the examples cited by Hohfed belong to private law. In Kelsen’s theory, the legal obligation (Pflicht) is necessarily described as the individualization of a legal norm concerning a specific relationship and imposing a concrete behavior on one or more individuals through the qualification of the opposite behavior as illicit. Such a reconstruction is strictly coherent to John Austin’s formulation, except that Kelsen polemically introduces the possibility of a separation between obligation and responsibility, which takes place whenever a sanction can be imposed on a subject other than the author of the forbidden behavior. Herbert Hart adds a distinction between an internal viewpoint, explaining the observance of an obligation in terms of pressure on the individuals menaced by possible sanctions, and an external viewpoint, focusing on the behavior of the community as a group. In public law, Constitutions or statutes mention duties when on a natural or legal person or a group or class of them are imposed obligations in order to guarantee the achievement of a public goal or the protection of a public interest. The obligation may then consist of a limitation of rights accorded such person for the sake of a public interest, which is normally balanced against the right itself by a constitutional Court, or of a service to be rendered, often together with other similar or concurrent services provided by a public authority (European scholars in this case speak of civic duties).