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The Essence Of Right

CHAPTER 3

The relationship between right and duty

274. If right is a moral governance enabling us to do what is not forbidden but protected by law, the notion of duty necessarily precedes, and is independent of that of right. If, on the other hand, the notion of duty did not come first, either the notion of right would have to be one of the first, self-evident notions, or it would be totally impossible for us to form it.

275. The notion of right is necessarily included in that of duty, as we can see from the definition I have given. But if the notion of right is explained by a notion of duty which does not precede that of right, the definition will be defective because it begs the question. Many authors have in fact defined right in this way; they have said that the notions of right and duty are essentially relative, so that one includes the other. As a result the notions have become obscure and unintelligible (we cannot explain one by means of the other), and the deduction of duties and rights arbitrary. Such a way of thinking implies that on the one hand human beings have a right to do anything not forbidden by duty, and on the other that duty does not forbid human beings from doing what they have a right to do. This perpetual circle provides only an arbitrary principle of what is upright and just.

276. In my teaching, duty has its own existence and precedes that of right in human beings. Duty is imposed by the object, whereas right, relative to its matter, springs from the subject. Just as the object has an existence independent of the human subject, so duty has an existence independent of right.(166)

277. It follows from this, and from what has been said earlier, that the notion of duty, which does not involve right, is simpler than the notion of right, which involves duty. This explains why many people have clear ideas about duty but not about the notion of right.(167)

278. We can now see also how duties can exist without any corresponding rights.(168) To feel ourselves bound by a duty, it is sufficient that an intellective nature present itself to us. This perception alone requires us not to be unjust to such a nature, not to judge it falsely; in other words we must acknowledge and respect the degree of entity in which it shares. The first duties, at least considered abstractly, are not to any given person but to impersonal truth. Truth, as something infinite, renders the person an object to be respected. Only the infinite ennobles intelligent beings by furnishing them with their nature as ends(169) and thus making them susceptible of rights.

279. Furthermore, when I consider myself objectively, I have duties to myself and must respect my own personal dignity. Here again there are no rights corresponding to duties, because rights towards oneself are mentally inconceivable.

280. The duties which we each have to impersonal truth and the duties to our own personship are absolute, and do not involve any relationship with other human beings or persons. Hence rights corresponding to these kinds of duties do not exist (except in God seen as the moral law); they can only exist in other persons, whose existence is not necessary for the existence of these duties. On the other hand, no right can exist in us unless the duty to respect it exists in others, as we have seen.

281. Duty therefore generates right.
Duties, it was claimed in the last century, are derived from rights rather than rights from duties. This lethal teaching was the result of inhuman selfishness. Our century proclaims the opposite,(170) the only true, human teaching, which we have an obligation to explain and clarify.

282. Duty generates right by two acts: one relative to the person who acquires a right, the other relative to the other persons who must respect this right. Duty, relative to the person acquiring right, limits his personal activity within defined limits, which constitute the sphere of right. Relative to other persons, duty obliges them to respect personal activity, whose limits are determined by the duty itself of the person who possesses the activity. It is principally this act of duty which raises that portion of activity to the dignity of right, rendering it sacred and inviolable.

283. Right therefore is a power which, relative to its possessor, is upright and, relative to others, is inviolable. Moral duty renders right upright by restricting it negatively, that is, by prescribing its limits. Moral duty also renders right inviolable, by acting positively, that is, by obliging others to respect right within those limits. Properly speaking this second positive action of duty gives right its form; right is right because it is inviolable. Right would not exist if other persons did not first have the duty of leaving intact the portion of power or activity called right.

284. To know therefore the sphere of rights of a human being, we must first consider his duties. By doing this we find the portion of activity that is morally free for him. But we must also consider the duties of the persons with whom he is in relationship to see the obligations they have to respect this portion of activity, because only that part of the whole portion can correctly be called right which, relative to other persons, is rendered inviolable by their duty.

285. The failure to consider that a negative act of duty comes before right, gave rise to the absurd, monstrous and so-called right to do what is wrong. Right however originates through the obligation to respect upright activity, an obligation imposed on other persons by the subject of right. The same kind of reasoning gave rise to opinions asserting that the only source of rights in human beings is society, or at least real association between human beings. These and similar errors have already been dealt with.

286. Another important relationship between duty and right is the way in which they are expressed; the former is expressed negatively, the latter positively. As we have seen, duty directly determines the mode of being of our actions in order to make them conform with the law. Duty therefore is first expressed negatively: it prohibits and does not command; it prohibits our practical judgment from giving things greater or lesser value than they appear to us to merit. In fact law, in its first expression, does not require us to reflect on things and judge them. This would be impossible because law begins to propagate itself and command us only at the moment we reflect on things.

287. On the other hand, everything not forbidden by such law may be freely done by us, and forms our right as soon as the duty of respecting our freedom arises in others. Thus the first expression of right has a positive, not a negative form: it permits, it does not prohibit.

288. We can see therefore that authors often express themselves equivocally, with great confusion of ideas when they maintain that Right admits only negative, perfect duties, and that morals recognises positive but imperfect duties. Instead of this, we should consider the science of right as dealing solely with rights, although in relationship with certain duties, and the science of morality must be considered as dealing solely with duties and responsibilities, although in relationship with rights. Thus all rights are positive, while duties can be either positive or negative. Duties that have a relationship with rights can always be reduced to the following general, negative formula: `Do not diminish the good of another or equivalently, `Do no harm.

289. Duty therefore concerns that to which we are obligated [App., no. 2]. Right on the other hand can extend to the whole sphere of non-prohibited actions, provided they do not lack the other constitutives of right we have mentioned. When I say `non-prohibited actions, I mean those actions that are simply lawful. These can be divided into three classes: 1. simply lawful actions, 2. lawful and obligatory actions, 3. lawful, non-obligatory actions enhanced by special moral goodness, that is, supererogatory actions. All these three classes can be the matter of right.

290. It is clear that an action, if obligatory, is by its nature the matter of an absolute, inalienable right. I will return to this kind of right when I deduce and classify special rights.
Non-obligatory actions endowed with moral goodness are such that moral perfection depends upon them. We are in fact free to do them or omit them, or do them to a certain extent, and thus attain various degrees of goodness according to the good we do. Just as justice precedes and generates right, right precedes and generates goodness, which consists precisely in using our own right to do good to others. We perfect ourselves morally in proportion to the good we have, and to the extent that we are authors of good. Hence degrees of goodness, relative to the person who has goodness, are called degrees of moral perfection. Goodness towards other human beings is called beneficence; towards God, piety.

Finally, merely lawful actions, devoid of obligation and moral goodness, can also be matter for right. When considered in themselves as abstract conceptions, such actions can indeed be called `indifferent, that is, devoid of both malice and moral goodness. Obviously they can never be entirely indifferent, as moralists generally teach, when they are considered in the individual who carries them out. In such a case these actions are accompanied by all the circumstances present or added by the person who does them (the persons intention, for instance, is a major factor).(171)

291. We have to speak about these actions understood abstractly because the teaching on rights cannot be considered in any other way. Such teaching must indicate not only when a right exists in an individual, but also when other human beings must judge it to exist in the individual; the action must be considered in the individual no less than in itself. Considering the action in the individual helps us to establish when right truly exists or not; considering it in itself helps us to establish, generally speaking, those occasions when others must judge (presume) that the right exists. I will explain.

292. Let us take an action which in itself is indifferent, but blameworthy in the person doing it because of his evil intention or because of some accidental addition. We can now ask two questions:

1. Has he the right to do it?
2. Must I judge that he has the right to do it?

We say `No to the first question, `Yes to the second, for the following reasons:

If we suppose that the intention of the person doing the action is evil and that consequently his action is evil, he certainly cannot have any right to do it: nobody has the right to posit evil acts. But, because I cannot know the intention with full certainty, the circumstance rendering the action evil (that is, the evil intention of the person doing it) cannot be subjected to my judgment unless the authors confession and other definite, external proofs have revealed it. I can only apply my judgment to the action considered in itself. In this case I must judge that it can indeed be suitable matter for the right in question, and that the person has a right to do it. Hence I must base my conduct on this principle, and respect in others what we have called elsewhere `presumed right.(172)

Notes

(166) I am talking here about the priority of duty relative to human beings. In God the notions of duty and right take on a more noble aspect and change nature. However, we can say that in God there is something that corresponds to moral responsibility (if not duty), and something that corresponds to right, but without any real precedence between the two. Indeed in the divine persons charity is moral responsibility. But charity itself is essential to God and the fullness of God; St. John says that `God is charity'. Again, charity is the total action of God because there is no distinction in him between physical and moral power; every physical power is moral, every action of God is charity. Thus the whole of his action is simultaneously responsible and jural; it is responsibility and inalienable right. If the divine action is considered in relationship to creatures, the same must be said, that is, his action can always be considered as a responsibility and an essential right.

(167) Children very easily acquire the idea of duty but not that of right. The wise authoress of Lettres de famille sur l'éducation observes: `The idea of right is complex. It is composed of the twofold position of the contracting parties. The idea of duty is one, its origin is beyond our investigation, and its expression allows no response; "You must" has to be accepted without comment. Examining right tires the lively attention and sluggish intelligence of children, while the security of duty satisfies their preference for decisions, and their need for the support of authority. When allowed their own choice, they often ask us what to do. Our "Do what you like" meets with "What am I to do?"; they are looking for some kind of duty, or at least authority, in their uncertainty' (Lett., 44).

(168) We could also say that inherent to every duty is `the right to fulfil it.'

(169) Cf. PE, 101–105.

(170) Mme. Guizot, wife of a well-known minister of state, is a case in point. She writes: `The idea of duty must precede that of right, just as cause precedes effect. Rights exist because duties exist, not vice versa, just as society exists because human beings exist and not vice versa. All social rights bestowed on us by our human nature are ours by virtue of the duties owed to us by other human beings, our equals. A father has the right to the obedience of his son as long as obedience is the son's duty. When the duty has ceased, the right no longer exists; the father's nature is still the same, only the son's has changed. The source of the father's right over his son no longer exists because obedience is no longer a duty. In every society right presupposes duty; the authority of laws is founded on the duty to observe them. If a human being lived among wolves, we would not speak of mutual rights, but simply of a fact. The man would not punish a wolf that took his sheep because the wolf had violated his right to ownership; he would not recognise any duty of the wolf to respect his right. He would simply attack the animal and kill it to regain his property' (Lett., 44).

(171) The Council of Constance (sect. 17) condemned John Hus' 16th article, `There are no indifferent actions.' The proposition must be understood as condemned relative to actions considered in themselves, in their species, not in the individual positing them.

(172) Note that if a subjective circumstance (for example, an evil intention) renders an action evil, the right that can be present in the action, considered in itself, may still remain available for the individual. However the person, when performing the action, has no right to add to it the circumstance or evil intention which renders it culpable.

Chapter 4