§ 71. Duties.
A duty is an obligatory act, that is to say, it is an act the opposite of which would be a wrong. Duties and wrongs are correlatives. The commission of a wrong is the breach of a duty, and the performance of a duty is the avoidance of a wrong. A synonym of duty is obligation, in its widest sense, although in a special and technical application the latter term denotes one particular kind of duty only, as we shall see later.
Duties, like wrongs, are of two kinds, being either moral or legal. A moral or natural duty is an act the opposite of which would be a moral or natural wrong. A legal duty is an act the opposite of which would be a legal wrong. It is an act recognised as a duty by the law, and treated as such in and for the purposes of the administration of justice by the state. These two classes are partly coincident and partly distinct. A duty may be moral but not legal, or legal but not moral, or both at once.
When the law recognises an act as a duty, it commonly enforces the performance of it, or punishes the disregard of it. But this sanction of legal force is in exceptional cases absent. A duty is legal because it is legally recognised, not necessarily because it is legally enforced or sanctioned. There are legal duties of imperfect obligation, as they are called, which will be considered by us at a later stage of our inquiry.
§ 72. Rights.
A right is an interest recognised and protected by a rule of right. It is any interest, respect for which is a duty, and the disregard of which is a wrong.
All that is right or wrong, just or unjust, is so by reason of its effects upon the interests of mankind,[[170]] that is to say upon the various elements of human well-being, such as life, liberty, health, reputation, and the uses of material objects. If any act is right or just, it is so because and in so far as it promotes some form of human interest. If any act is wrong or unjust, it is because the interests of men are prejudicially affected by it. Conduct which has no influence upon the interests of any one has no significance either in law or morals.
Every wrong, therefore, involves some interest attacked by it, and every duty involves some interest to which it relates, and for whose protection it exists. The converse, however, is not true. Every attack upon an interest is not a wrong, either in fact or in law, nor is respect for every interest a duty, either legal or natural. Many interests exist de facto and not also de jure; they receive no recognition or protection from any rule of right. The violation of them is no wrong, and respect for them is no duty. For the interests of men conflict with each other, and it is impossible for all to receive rightful recognition. The rule of justice selects some for protection, and the others are rejected.
The interests which thus receive recognition and protection from the rules of right are called rights. Every man who has a right to any thing has an interest in it also, but he may have an interest without having a right. Whether his interest amounts to a right depends on whether there exists with respect to it a duty imposed upon any other person. In other words, a right is an interest the violation of which is a wrong.
Every right corresponds to a rule of right, from which it proceeds, and it is from this source that it derives its name. That I have a right to a thing means that it is right that I should have that thing. All right is the right of him for whose benefit it exists, just as all wrong is the wrong of him whose interests are affected by it. In the words of Windscheid,[[171]] “Das Recht ist sein Recht geworden.”