The Correlativity of Rights and Duties

Author(s): David Lyons

Source: Nos, Vol. 4, No. 1 (Feb., 1970), pp. 45-55
Published by: Wiley
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FOURTH SYMPOSIUM

The Correlativity
of Rights and Duties'
DAVIDLYONS
CORNELL UNIVERSITY

Commentators:MARcus SINGER

UNIVERSITY OF WISCONSIN

DALHOUSIE
DAViD BRAYBROOKE

UNIVERSITY

It is commonly held that rights "correlate"with duties.2 By

this is usually meant at least that rights imply duties (even if not
all duties imply rights) and also that claims of individual rights
need not be recognized unless backed by proof that corresponding
obligations obtain. Such a doctrine of correlativityalso forms part
of the view that rights must be understoodor analyzed in 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 significantly. I argue that it is at best misleading to say that rights generally "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 Conceptions.

45

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46

NOCNS

vary substantiallywith 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 correlationof rights with
duties. Suppose that Bernardowes Alvin ten dollars: we then have
equal reason to ascribe a right to Alvin and a correspondingobligation to Bemard. Bemard'sobligation is to pay Alvin ten dollars;
but his obligation is also to Alvin-or, as we say, it is "owed"to
Alvin in particular.rAlvin has a correspondingright, to be paid ten
dollars by Bernard,which is held "against"him specifically.
Alvin's right and Bernard'sobligation 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 discharged, waived, cancelled, voided, forfeited or otherwise extinguishedthe other must be extinguishedas 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: asisertionsof the
right or obligation may presuppose principles deriving them from
certain kinds of fact. But, if we are given either the right or the
obligationwe can infer the existence of the other.
Moreover, such implications are, as we might say, specific
and the correlationsdeterminate.A full statement of the right or
the obligation implies a full specificationof the other. It is not that
Alvin'sright implies merely that there is some coexistingobligation,
but that Alvin'shaving this particularright implies that Bernardis
under an obligation, to Alvin, to pay him ten dollars (and vice
versa).
These tight correlationsare quite common. They occur not
only when debts (in the ordinarysense) are owed but also when
certain other relationsexist 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,"AmericanPhilosophical Quarterly,III (1966): 137-144.

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THE CORRELATIVITY OF RIGHTS AND DUTIES

47

consequence,for example, of promises and contracts,wrongful injuries that require reparation,relationshipssuch 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 obligation to A.
There is, then, a familiar class of cases which can sensibly
be talked about in terms of the "correlations"of rights and duties,
and it is tempting to suppose that whenever "rights"and"duties"or
"obligations"can be ascribedthe pattern will recur. But while there
are variousimplicationsbetween rights and duties, the pattern just
sketched does not arise whenever rights and duties obtain. Before
comparingour first kind of case to others, however, let us consider
it more closely.
The doctrine of correlativitysometimesassumesa particularly
strong form, when it is held that rights and duties do not merely
imply one another but do so because they are conceptual correlatives. This idea is that "therecan be no right without a corresponding duty, or duty without a correspondingright, any more than
there can be a husbandwithout 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"and "left."Just as statementsof the form "A is to the right
of B" and "B is to the left of A" entail one anotherin virtue of the
correlativemeanings of "to the right of' and "to the left of," so a
statementof the form "A has a right against B" implies and is implied 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 "hasa 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 orderedpairs (or sets) of persons;they also have contents.
By "contents"I 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
definiterelationif we are to be able to infer the right or the obligation 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.

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48

NODS

correlatewith Dana's obligation to Charles, so Alvin's right to be

paid ten dollarsby Bernarddoes not correlatewith Bernard'sobligation 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 another as we are
supposing,there should be a formal rule connecting their contents.
Examplessuggest 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'sobligation to pay Alvin. The rule is that the expression of the content of the right is related to the expressionof 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 conceptual correlativityand explain why it is so clear not only that
such rights imply correspondingobligations but 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"restricted to rights
held "against"and duties or obligations"owed"to 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.I shall not try to answerthis, 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 characterizationof Alvin's right
and thus to the formal rule and the restrictedthesis of conceptual
correlativity.Some may think it more felicitous to say that Alvin
has a rightto expect or demandpaymentthan a right to be paid. But
"expect"is 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
paymentbut (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 describingit.
"Demand"seems too strong: one does not have a right to demand
'7 Compare M. Radin, "A Restatement of Hohfeld," Harvard Law Review, LI (1938), p. 1150.

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THE COREELATIVITY

OF RIGHTS AND DUTIES

49

payment unless one's debtor fails or at least threatensnot to payin other words, does not respect one's right to be paid. Another
possible referent of "rightto demand payment"is the "right"one
has to refuse to forgive a debt-which complementsthe "right"one
has to forgive it, both of which seem but constituentsof the complex
right to be paid. These objectionsthus seem to fail.
Nevertheless, it might be thought that a "right to be paid
ten dollars by Bernard"could not be the one that correlateswith
Bernard'sobligation to pay Alvin, for anyone might have the right
so described whether or not Bernardowes him anything. But this
is mistaken:Alvin'sright can be described as a right held "against
Bernard"-which indicates that Alvin has a legitimateclaim he may
press or waive as he chooses.The right of a noncreditor,by contrast,
cannot be qualified as a right "againstBernard,"for it rests on no
such special claim relation (and it is more naturallydescribed as a
right to receive or accept money anyway).
Consequently,I see no reason to redescribe the right, and I
shall assume that such rights and obligations are but two sides of
the same coin.
II
In the sort of case with which we began, therefore, to say
that someone has a right seems just another way of saying that
someone else is under a certain type of obligation.Let us compare
that with a new example. Suppose that Alvin is atop a soap box
speaking to a crowd against United States military involvementin
Vietnam. His act is perfectly lawful, but he is assaulted by some
private citizens, driven from the box and silenced. Their behavior
is unlawful and constitutesunwarrantedand prohibitedinterference
with the exercise of his legal rights. In saying this we may refer
to his general right of free speech or to a specific right to stand
there addressing the crowd. In either case the right might be
construedas a right to do something.How is that to be understood?
A common view is that such a right consists of an area of
free choice protected by prohibitions against interference. For
example, to say that Alvin has a legal right to do X is, on this
view, to say that (1) it is not unlawful for Alvin to do X (or, perhaps, to refrain from doing it) and (2) it is unlawful for others
to interfere with Alvin's doing X. But this needs adjusting if we
seek a schema that could be applied to moral rights as well. We

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50

NO*S

cannot simply substitute "immoral"for "unlawful"in (1) because

we should allow in morals (what we may not need to allow in
law) that there are rights it can be wrong to exercise. We might
say that there is a nonvacuouspresumptionwhich must be rebutted
before it can be shown that Alvin'sdoing X is wrong. But our argument does not requireus to pursuethis.
Can such rights be assimilatedto those with which we began?
I think not. I shall note some counter-indicationsand then develop
one particulardifficulty.To be assimilated,it must be the case that
the assertionof Alvin's right to stand on the soap box addressing
the crowd is equivalent to the assertion of correlative obligations
incumbenton others. There is at once a difficultyI shall mention
and waive. It is not clear that the relevant prohibitions (against
assault, and so on) are properly characterized as "duties" or
"obligations";8
but unless they are there is no chance of construing
such rights on the patternof our firstexample.It is also unclearthat
assertionsof these "obligations"exhaust the content of the right;
for such "active"rights seem to say in part that the behavior in
questionis at least primafacie permissibleor unobjectionable;while
Alvin'sright to be paid says no such a thing about his own behavior.
Also, one who emphasizes the "free choice" element of "active"
rights might think it comparableto the "free choice" enjoyed by
Alvin; but the latter is the private "power"or "capacity"he has to
change his relation to Bernard-by forgiving the debt, waiving his
right and cancelling Bernard's obligation or refusing to do so.
Nothing correspondsto this in the sort of 'active"right we are
considering.
What I wish to scrutinize more closely, however, is the view
that the prohibitions on others' behavior constitute not only an
obligationbut also one that standsto "active"rights just as Bernard's
obligation to pay Alvin correlates with Alvin's right. Before proceeding, a digression to underscoremy general thesis that rights
relate in differentways to obligations.
Alvin'sConstitutionalright of free speech cannot be construed
as an area of free choice protectedby others'obligations.This right
is conferredby the First Amendment,which deprives Congressand
other governmental agencies of the authority (tthe legislative
"power or "capacity") to enact laws requiring or prohibiting
speech of certain kinds (among other things). If the Supreme
8 See Hart, op. cit., 178 and 181, and also his "Legal and Moral Obligation,"in Essays in Moral Philosophy (ed. by Melden).

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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,for the latter
can be inferredfrom the formerand standingconditions.If Congress
cannot restrictone's speech then it is not unlawful for one to speak
or remain silent; and since one is generally protected against interference (as I shall argue) others also have "obligationsnot to interfere." But such Constitutionalrights are not the same as these
protectedareas of choice since we could lose the former and retain
the latter.To see this, imagine the First Amendmentrepealed: then
Congresswould acquire the "power"to 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 restricted than 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 Constitutionalrights of free speech.
These Constitutionalrights exemplify what some jurists call
for to assert them is to say that protected areas of
"immunities,"9
be taken away. Alvin's Constitutionalright has a
cannot
speech
conceptual correlative:but it is not an obligation;it is a legislative
"disability,"the assertion of which says that Congress is not empowered to enact certain laws.
It may still be tempting to search for 'correlative"obligations 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 legislativepowers or, more specifically,
not to restrictspeech guaranteedfree 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"it by enacting unconstitutionallaws. If they do this their
actions could be described as "illegal"or "unlawfurlonly in the
sense of "invalid":it is not that they would break the law in so acting, 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 summaryin Salmond on Jurisprudence,ch. 10.

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52
OCS
"Immunities"
are probablynot thought of by philosopherswho
proclaim the general correlativity of rights and duties. But that
slogan is presumablyapplied 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's rights, and consequently the prohibitionsupon such forms 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 obligationsdoes not entail that
Alvin has any particularright 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 prohibitionson 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 assumptionis false. Most of the things that
we are prohibitedfrom 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's soap box talk had been illegal and he had acted without a
legal right, those who assaulted him would still have acted illegally
themselves.Similarly,if 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
dissuadehim frombreakinga 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 ourselves, for example; but these seem to be special exceptions to
the ordinary sweeping prohibitionsagainst killing and asisault.In
other words, from the fact that others:are 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 ordinarylegal and moral
prohibitionswhich serve to protect someone in the exercise of his

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THE CORRELATIVITY OF RIGHTS AND DUTEES

53

rights do not logically correlatewith 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."It must be
borne in mind, however, that if the inferenceworks in this direction
alone, there is a significantdisanalogybetween such "active"rights
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 prohibitedfrom doing such things when they constitute interferencewith the exerciseof his rights. And thus counterexamples to the alleged entailment between such "active"rights
and these "obligationsnot to interfere"will be impossible. It may
seem as if these obligationsfollow from, are "part"of 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 correlativitymight try to save that doctrine.
He might claim that, besides the ordinaryobligations mentioned,
there are also extraordinaryor 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
surplusmight be prohibited as well. Certainforms of verbal abuse
might be prohibited when used against a public speaker, for
example, but not otherwise. If so, the obligation imposed would
correlatewith Alvin'sright to speakpublicly.
But this is not a promising line of defense, for it is a contingent matter in the law, at least, whether any such special obligations 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

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54

NOUS

like (a) that any relevant change in the law (however minor)
changes the sense of the statementthat 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 reason to construe the case in such a way
except to defend at all costs a general doctrine of correlativity.
Furthermore,unless we suppose that the analysisof moral and legal
rights diverges at this point, any such special obligationsin morals
are not implied by moral"active"rights either.
Another line of defense is given by the claim that there is a
general obligation not to interfere with another person, an obligation not exhausted by the ordinaryprohibitions.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
previousremarks.On the one hand, the existence of a general legal
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 rarely justified on moral grounds in
interferingwith 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 Constitutionalright of
free speech does not correlatewith duties in anything like the way
that Alvin's right correlates with Bernard'sobligation. But given
certainassumptionsthere may be ways of derivingstatementsabout
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"if that term is also used to characterizethe very
tight, determinaterelations between rights and duties exemplified
by our first example. I am not even preparedto grant that run-ofthe-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
Californiawhich he does not have in New York State, in virtue of
the differencesbetween the trafficlaws of those two states, whereby
making a right turn on a red light is prohibited unless explicitly

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ITHE CORRELATIVITY OF RIGHTS AND DUTIES

55

authorized in New York, whereas it is permitted, and indeed required when traffic allows, in California.This example may help
debunk several dogmas about rights.
First, what implicationsdoes the assertionof 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 regulations; so what sort of interferenceis 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 causebut 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 assertinga right often is to
deter, discourage,prevent,protest or stop unwarrantedinterference.
But there are other ways of accountingfor this phenomenon.Moreover, assertionsabout rights can have other points. Our trafficlaw
example could be used to remind, contrastor instruct, and would
not likely be used to protest unwarrantedinterference.
Last, it is generallysupposedthat an "active"right 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 falsifiedby our example. Choice is ruled out,
as it often is, because the behavioris not only allowed but required.
Ours is not an isolated example: one can think of many possible
cases. It seems no contradictionto 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 showing 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 suggestions.

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