The Essence Of Right
CHAPTER 4
The nature and extension of jural duty
293. We now have to clarify the nature and extension of the moral duty that corresponds to right. We have called this `jural duty.
| The nature of jural obligation |
§1. Definition
294. First, we must define the nature of jural obligation on the basis of what we have said. `Jural obligation is that moral duty which obliges one person to leave intact and free some activity proper to another person. All the parts of this definition are clarified by what has been said except for the final phrase, in which it is affirmed that the activity constituting the subject of right must be proper to another person, that is, to a person different from the one who has the obligation.
We have not in fact explained the concept of `proper to, although we all know more or less distinctly what we mean by it. For the moment, therefore, we shall make use of the knowledge which everyone has, and which reveals itself very early in children. The concept will be developed more at length in its own place. Our present aim is to draw the principal qualities or conditions of jural obligation from the definition we have given.
§2. Two species of jural obligation: one arising from the nature of the activity which forms the object of the jural obligation, the other from an extraneous cause
295. Our definition shows first that we do not expect as a condition of jural obligation that the definition proceed immediately from the capacity for respect inherent in the activity (right) that forms its object. The obligation we call `jural does not disturb or impede that activity even if the obligation itself arises from an extraneous cause rather than from the moral exigency of the activity itself.
296. For example, a workman who owes his employer ten hours of work a day may obtain permission to rest until he is called to work. In this case, he possesses governance over his time as long as the employer permits. But what is the source of the jural duty now existing in other people which requires them not to impede the use of his free time? It does not appear to come from the faculty that the employee has for labouring for his own profit. The faculty of which we are speaking belongs to the employer and was provided by the employer for the workmans benefit. It comes therefore from the permission granted by the employer himself. Respect is due to a right of the employer which has passed to the employee. We can say that in these circumstances employer and employee form as it were a single person whose faculty is not to be violated by anyone.(173)
297. There exist, therefore, some faculties for acting morally which draw in their wake the jural duty to be respected. They do this, however, not per se but as a result of some accident or relationship that envelops them.
298. It is true that this teaching could be expressed in another way by distinguishing between the activity taken materially and the activity furnished with all the circumstances and qualities which render it jural and worthy of respect. It could be maintained (if the activity of which we are speaking is to be taken in all its jural-moral extension and not in its material entity) that `every jural obligation has its foundation (its reason) in the faculty that forms its object. Often enough, though, such a way of speaking is awkward. It is more convenient to divide jural obligations into two classes, that is:
1. The class of jural obligations which arise from the exigency of the activity that forms its immediate object, without need to appeal to anything from which it may be derived.
2. The class of jural obligations that do not arise from the exigency of a single activity the exigency forming the immediate object of the activity but from a person other than the one to whom the faculty pertains.
Both ways of speaking seem exact to me but needed to be distinguished and identified for the sake of clarity. The reader is now in a position to interpret both correctly when we have to use them.
§3. Jural obligation is always related to other persons
299. Obligation may belong to the first or the second of the two classes we have indicated, but in both cases one of its properties is that it always refers to a person different from the one in whom it is found. Certainly it is possible for me to have duties towards myself provided I consider myself objectively.(174) But my duties towards myself, although moral, cannot be called jural because no one can have rights in his own regard. The word `jural has its root in jus, and hence is equivalent to `duty corresponding to a right, or better `informing a right. All jural duties are indeed moral, but not all moral duties are jural. Moral, jural duties have as their object the need to respect, that is, not to remove or harm, some activity proper to another person. The fact that corresponding rights and jural duties exist between different persons and never in the same person, makes conflict possible between two persons in the case of usurpation or harm on one side, and revendication and compensation on the other. The possibility of this conflict misled many authors, who were persuaded that de facto coercion is essential to every right.
§4. Not all moral duties towards another person are jural; only those which command respect for an activity proper to that person
300. The sphere of jural duties is further restricted if we consider the five elements which we have accepted as constitutive of the notion of right. A moral duty can be a jural obligation only if it both terminates in another person and has for its object the activity of that other person.
§5. The negative sense of jural obligations
301. It is clear, therefore, that of its nature jural obligation is negative. It requires us not to harm and not to attempt to harm what is proper to others. Nevertheless, we have to show clearly how this negative form is constituted. This we can do by means of the following observations.
302. First, jural duty forbids de facto injury, and any attempt to do injury, to anothers faculty. Consequently harm can be done to the right of the supreme Being, though the faculties and properties of this Being cannot be limited or damaged. A person who neglects to carry out some act of benevolence imposed by the Creator does not damage any jural duty towards human beings, but is guilty relative to the supreme Legislator who has the right to impose the precept and require its fulfilment. On the other hand, the duties of benevolence and beneficence, if considered as imposed by the light of reason alone without reference to the supreme Legislator, cannot be called jural duties because they neither impede others in the exercise of their own activity, nor attempt to harm them. In this way two disparate opinions are reconciled.
303. Another reconciliation of different opinions may be carried out here. Thomasius posited as the foundation of Right (1705) the precept of Christian morality:(175) `Do not do to others what you do not want done to yourself. His corollary that the duties of right are negative justifiably encountered strong opposition, as we noted. More recently, Romagnosi maintained that `the separation made by Thomasius is absurd in the extreme, disastrous and destructive of sociality. He was led to this conclusion because society itself is required by natural right and demands positive mutual assistance.(176) We need not insist, however, on the way in which Thomasius conceived jural duty as negative. I maintain that Romagnosis positive jural duties can be reduced to duties of a negative form.
In fact, the negative duty of right prescribes: `Do not harm others, while Romagnosi requires that `human beings associate amongst themselves and offer one another the necessary assistance to prevent the loss and suffering of each individual. The positive duties that Romagnosi claims to introduce into natural Right are therefore reduced to a special class of negative duties. In other words, they are reduced to the duty of not causing harm to others. It is true that it is sometimes necessary to offer help to others in order to avoid causing them harm, as we shall see later (Thomasius was aware of this). But what Romagnosi added is only a means of carrying out the general negative rule that we must not cause harm to others. This is why I said that `the general form of jural duties is negative, although these duties can sometimes take a special, positive form. However, they will always be reduced to the negative form, which is their primitive, general form.
§6. The external aspect of jural duty
304. We now have to ask if jural duty is an external duty. We begin by noting that the word `external is ambiguous. If it is to be retained in a treatise on right, therefore, it must be rigorously defined and its meaning limited. In its initial meaning externality is a property of bodies in which every particle is assignable outside all others. The proper meaning of externality and its derivatives is not applicable, therefore, to moral duties which are neither bodies, nor parts of bodies but pertain to the order of spiritual and suprasensible things. Moral duty, which lacks the relationships expressed in the words `internal and `external cannot be called internal or external. But could the object of moral duty be external?
305. The word `external involves a relationship with something else outside. But what is that thing relative to which the object of moral duty is said to be external? Is it our body, in the sense that the object of moral duty may be understood as external to our own body? In this case, we may be talking about the material object of duty, and here there is no doubt that moral duty can be referred to an object external to our body such as life or other peoples belongings which, materially understood, are objects external to our body. But we may also be talking about the formal object of duty which is constituted by the relationship that the object has with the law. In this relationship, which is not a material relationship in the sense that `external or `internal can be applied to it, the law determines what has to be done or not done(177) in the objects regard. Life and other peoples belongings, taken materially, are not yet the proper, true, immediate object of obligation.
The immediate object of obligation is `carrying out the law, that is, the execution of what the law prescribes relative to the object, which may be material or not. If we want to use philosophically appropriate language, we cannot say that any moral duty has an external object, but we can say that the moral law prescribes something to be done or omitted relative to an object external to our body.
306. However, if we want to keep in touch with our ordinary manner of speaking, we can call jural duty `external provided we take the word in a translated sense, as we normally do. In this case, it does not indicate true externality, but the relationship, involved in such a duty, between the person whose duty it is and the person who has the activity (the right) which is the object of the duty, because duty requires this activity to be respected. Johns activity, which I must respect, is said to be outside me in some way because it resides in someone different from me. My duty, therefore, which terminates in that person, is said metaphorically to terminate in an external object.
307. The violation of a right involves the kind of externality which could be described as otherness. In fact, I cannot offend the proper activity of another person unless my action causes harm or attempts to cause harm to that activity. My blameworthy act, therefore, has an effect related to a person different from myself whom I either actually harm, or want and attempt to harm. The observance of such a duty is normally a non-act. Thus, this kind of externality is verified only in the transgression, not the observance of jural duty. In transgressing our duty we act positively.
308. Sins against our neighbours, therefore, when they are entirely internal to the spirit, without any outward effect or sign and unaccompanied by an attempt to harm, cannot properly be called violations of our jural duties towards their rights. Our acts in this case lack the kind of externality which is required to constitute such violations. But we cannot say the same about our relationship with the supreme Being; relative to him all our sins have the nature of true lesions of right, simply because there is nothing hidden or internal as far as this Being is concerned. He is the truth, the essence of being. Every lie and every disordered act of ours is consequently an assault on his very essence. Everything exists in him, even the spirit of the sinner. The disorder effected by the sinner in himself is, therefore, an assault on what essentially belongs to God who governs being, all of which comes from him as its principle and receives from him its every act.(178)
| The extension of jural duty |
309. From what has been said, we can also draw some conclusions about the extension of jural duty. This we will do now. The reader already knows that I disapprove of the method followed by writers who intend to restrict the teaching on rights simply to relationships between human beings. It seems obvious to me that the science of right can never be considered complete and perfect until the rights of the first Being are taken into account together with the jural duties which correspond to them.
310. But we could ask whether the part of the science of right that deals with mere relationships between human beings is sufficiently independent of the consideration of the rights of the supreme Being to be treated fully enough, and without error, when these divine rights are omitted from the argument. The solution to such a question depends on the teaching about the morality of right.
311. We have shown that there is no true, complete right, whatever its source, which can be immoral. Immorality, by adhering to a right, destroys it. With this in mind, the question can be answered without difficulty: even the rights that people have amongst themselves cannot be dealt with without taking into consideration the rights of the first Being. If human rights were to come into collision with divine rights, the former would cease to be rights because they would ipso facto be rendered immoral.
312. At one time, divine rights were abstracted from consideration of human rights because this was thought necessary to ensure a rigorously scientific method. But this opinion was false. The best method, the truly scientific method, can never be constrained to carry out the kind of abstractions that destroy the subject under investigation and leave us with nothing more than hypothetical results which have no relevance whatsoever to practice. Practice requires us to deal with realities, not abstractions.
313. Taking the rules drawn from hypothetical and abstract data as rules for practice is sure to lead to ill-advised and very dangerous arrangements. And unfortunately this does occur. A considerable part of the imperfection and downright evil of positive laws has always been due and still is due to the abuse of rules based on the abstractions to which lawyers are so addicted.
What was first introduced into the treatise on right under the pretext of scientific method was welcomed with open arms because it was so favourable to the system embraced by modern irreligion; the irreligious were delighted to find that `it was against the rigour of scientific method to introduce the name of God and consideration of his rights into the treatises on human rights. Supporters of modern irreligion were equally delighted with the consequence: `human rights exist independently of those of God and even more with the other conclusion: `it is not necessary to pay attention to any possible collision that could take place between rights of human beings towards one another and human rights relative to the supreme Being. These are the deformed foundations of the politics and the human, material, irreligious legislation that my contemporaries, and those of my father, have had to contemplate. I can only hope that their children are not subjected to the same fate!
314. It may be possible, therefore, to abstain from specifying the rights of the first Being in this work, but we have to proclaim their existence, and state clearly that human rights, which are of a lower order than divine rights, are conditioned by and subordinate to divine rights. We shall, therefore, have recourse to divine rights whenever this is necessary to complete the treatise on human rights, the principal aim of this book.
315. Meanwhile, let us recall that the moral system we have explained presents four classes of duties which consist in simple, affective, spoken and externally executed volitions.(179) All these classes are jural duties relative to God. This is not the case relative to human beings.
316. We must note carefully, however, that even those duties which are jural relative to human beings have their root in preceding moral duties of which they are, so to speak, a continuation. Jural duties cannot be cut off from their main stem without disintegrating in our hands. For example, simple ill-will without any external effect does not contain any attempt to harm anothers activity and does not, therefore, offend any human jural duty.(180) But although jural duty begins only with the attempt to do harm to another, this attempt, considered apart from the internal ill-will causing it, is not of itself the object of any jural duty. The entire seat of evil is found properly speaking in internal ill-will [App., no. 3].
317. We repeat: duty cannot be split in two, one part moral and the other jural. The jural element of duty is grafted into the moral root where it attaches itself indivisibly.
Notes
(173) The worker's right to rest can also be considered as a transmitted right, not as a right subsisting of itself. We shall speak later of the transmission of rights.
(174) The phrase `duties towards ourselves' is not altogether exact, as I noted in PE, 215-227. The word `ourselves' expresses a subject, and there are no duties towards subject as subject. We ought to substitute for `ourselves' the phrase, `duties towards that human being who is ourselves', but this would grate on literary susceptibility which is often contemptuous of new ways of speaking.
(175) Note how the principal authors always fall back, consciously or unconsciously, on a moral principle as the source from which to derive the science of right.
(176) Romagnosi is correct when he says: `If human beings were either God or beasts, and hence self-sufficient, as Aristotle said, any social state would be purely a matter of choice and Thomasius' principle could be defended. But if some social state is absolutely necessary as a means (as it is), it follows that all the positive duties of security and assistance form part of necessary natural Right in the same way as negative duties' (Raguaglio storico e statistico degli studi di Diritto Germanico e naturale in Allemagna, in the preface to the Assunto Primo, etc., Florence, 1832). - Romagnosi's affirmation is basically true, but exaggerated. Later we shall try to restrict it to its proper limits.
(177) For the distinction between the physical, intellectual and moral object of duty, cf. CS, 597-599.
(178) The word `justice' was first employed by Christianity to indicate the fulfilment of all duties, omnium mandatorum custodia, as St. John Chrysostom defined it (Hom. 12 in Matt.). The reason for this new use of the word is that Christianity re-united the human creature with the Creator, and called human beings to consider the morality of their actions in relationship with the principle of their actions. This relationship embraces the fullness of morality. Christ, in fulfilling morality and raising it to a supernatural level, said: `Blessed are they who hunger and thirst after justice' (Matt 5: [6, Douai]). With a single word, he pointed out the whole of virtue and perfection. Previously we said that many works of beneficence, which are not obligatory considered relative to the relationship between human beings, become obligatory considered in relationship to God.
Consequently, charity itself, the greatest precept under the law of the gospel, forms justice in the Christian system, that is, perfect virtue in the eyes of God. St. Augustine commented so aptly on this sublime teaching: `The charity of God which alone makes just whoever is just' (De Nat. et gr., c. 38). Again, `Incipient charity is incipient justice; great charity is great justice; perfect charity is perfect justice' (ibid., last chap.). - Natural reason had come to know that the word justum expressed etymologically the concept of equality and had come to mean `that which is on a par or commensurate with the rule to which it must be on a par or commensurate', as Aristotle himself noted (cf. Eth. 1). But revealed reason added that `this rule, with which actions have to be commensurate in order to be just, is the divine will, which itself has been clearly communicated to human beings.' From then on the word `just' was used to describe the perfect human being, and `justice' to indicate `the perfection resulting from the complex of all virtues.' This was the sublime, noble meaning found on the lips of all and in every language of the universe. In this way the value of words used by human beings is changed and clarified as greater light is bestowed upon mankind.
(179) Words and material actions could be reduced to the same class because both are material actions. We have in fact done this elsewhere. However, they can be usefully distinguished in so far as words act immediately simply by making us know something, while actions change the state of material things.
(180) Ill-will can exist in the heart, irrespective of any actual volition intending harm of another. But if such a volition is present, it is an injury done to jural duty because it is already the principle of harm against the right of another. Nevertheless, it is not subject to coercion as long as it remains hidden in the spirit.