LECTURE XVII.
ABSOLUTE AND RELATIVE DUTIES
In my last Lecture, I attempted to settle the import of the term ‘right,’ considered as an expression embracing all rights, or considered as an expression for rights in abstract, or without regard to their generic and specific differences.
Import of ‘Right’ in abstract.
The import of the term ‘Right,’ as thus considered, may (I think) be expressed briefly in the following manner.
A monarch or sovereign body expressly or tacitly commands, ‘that one or more of its subjects shall do or forbear from acts, towards, or in respect of, a distinct and determinate party.’58 The person or persons who are to do or forbear from these acts, are said to be subject to a duty, or to lie under a duty. The party towards whom those acts are to be done or forborne, is said to have a right, or to be invested with a right.
58 In the case of the negative duties corresponding to jus in rem, it is not necessary to take into consideration any determinate or assigned party. The parties on whom the duty is incumbent are restricted to persons within the jurisdiction of the sovereign; consequently, to persons determined generically. In every case of a right, and of an obligation (sensu Romano) the party having the right, or the party bound by the obligation, is assignable ble individually or generically, or both: And must be considered as assigned individually.
Consequently, the term ‘right’ and the term ‘relative duty’ are correlating expressions. They signify the same notions, considered from different aspects, or taken in different series. The acts or forbearances which are expressly or tacitly enjoined, are the objects of the right as well as of the corresponding duty. But with reference to the person or persons commanded to do or 401forbear, a duty is imposed. With reference to the opposite party, a right is conferred.
As I intimated at the outset of the analysis through which
I am now journeying, duties may be distinguished into relative and absolute.59
59 For ‘absolute duties,’ see Bentham, ‘Traités de Législation,’ i. 154, 305, 247. ‘Principles of Morals and Legislation,’ pp. 222, 289, 308.
Blackstone’s ‘absolute duties’ are moral or religious duties. Vol. iv. ch. 41.
Duties are relative or absolute.
A relative duty is incumbent upon one party, and correlates with a right residing in another party. In other words, a relative duty answers to a right; or implies, and is implied by, a right.
Where a duty is absolute, there is no right with which it correlates. There is no right to which it answers. It neither implies, nor is it implied by, a right.
Now the term ‘absolute’ is a negative expression. It signifies the absence of some object to which the speaker or writer expressly or tacitly refers. As applied to a duty, it denotes that the duty in question has no corresponding right.
But, in order to the complete explanation of a negative expression we must first explain the object of which it signifies the absence. Accordingly, I have attempted to explain ‘Right’ (and ‘duty’ as correlating with ‘right’), and now proceed to the duties which have no corresponding rights, or which (in a word) are absolute.
Absolute duties defined by exhaustive enumeration.
Every legal duty (like every legal right) emanates from sovereign will. It flows from the command (express or tacit) of a monarch or sovereign body. And the party upon whom it is imposed is said to be legally obliged, because he is obnoxious or liable to those means of compulsion or restraint which are wielded by that superior.
Every duty is a duty to do or forbear. A duty is relative, or answers to a right, where the sovereign commands that the acts shall be done or forborne towards a determinate party, other than the obliged. All other duties are absolute.
Consequently, a duty is absolute in any of the following cases: 1st, Where it is commanded that the acts shall be done or forborne towards or in respect of the party to whom the command is directed. 2ndly, Where it is commanded that the acts shall be done or forborne towards or in respect of parties other than the obliged, but who are not determinate persons, 402physical, or fictitious. For example, towards the members generally of the given independent society; or towards mankind at large. 3rdly, Where the duty imposed is not a duty towards man; or where the acts and forbearances commanded by the sovereign, are not to be done or observed towards a person or persons. 4thly, Where the duty is merely to be observed towards the sovereign imposing it: i.e. the monarch, or the sovereign number in its collegiate and sovereign capacity.
Order in which I shall consider absolute duties in the present Lecture.
I think that this enumeration completely exhausts the cases wherein duties or obligations can be considered absolute. Accordingly, for the purpose of explaining and exemplifying the general nature of those duties, I shall consider them in the order which I have now announced. Though I should probably arrange them in another order, if I attempted to expound them in detail.
Self-regarding duties, and duties not regarding man, regard persons generally in respect of their remote purpose.
But before I endeavour to explain and exemplify the classes of absolute duties, I will briefly advert to a topic upon which I may insist hereafter.
I have said that some of these duties are self-regarding: that is to say, that the acts or forbearances which the Law enjoins are to be done or observed by the party obliged towards or in respect of himself.
I have said that others of these duties are not duties towards man: that is to say, that the acts or forbearances, enjoined by the Law, are not to be done or observed towards persons, or towards human creatures.
But in styling some of these duties self-regarding, and in affirming of others of these duties ‘that they are not duties towards man,’ I look exclusively at their immediate or proximate scope.
Considered with reference to their more remote purposes, they are absolute duties regarding persons generally. For, assuming that they are imposed at the suggestions of general Utility, they regard the members generally of the given political society, or they regard mankind at large: so far, that is, as Laws, established in a given community, can promote or contemplate an end so vague and uncertain as the weal of human kind.
For example, the duty incumbent upon you to forbear from suicide, is a self-regarding duty, in respect of its proximate purpose. It is imposed directly, to the end of deterring you from destroying your own life. But, remotely or indirectly, it is an absolute duty regarding persons generally. For it is 403partly imposed for the purposes of preserving a member to the community, and of deterring its members generally from the act of suicide by the consequences annexed to the act in the single or particular instance.
Again: A duty to forbear from cruelty towards the lower animals, is not a duty towards man in respect of its proximate scope. Its proximate or direct scope, is to save the lower animals from needless suffering: from suffering which has no tendency to promote the good of man, or decidedly outweighs the good which man can derive from it. But, in respect of its remote purposes, the duty is an absolute duty regarding persons indefinitely. For, tending to preserve and cherish the sentiment of benevolence or sympathy, it tends to the good of the community, and to the good of mankind at large.
Relative duties regard persons generally in respect of their remote purpose.
Nor does this apply exclusively to those absolute duties, which I have styled (for the sake of distinction) self-regarding, or of which I have affirmed (for the same purpose) ‘that they are not duties towards man.’
It also applies to relative duties, or to duties which correlate with rights.
In numerous instances, rights are conferred (and their correlating duties imposed) with the direct or immediate purpose of promoting the general good (as, for example, the rights of judges and other political subordinates): And rights are conferred indirectly to the same extensive purpose, although their proximate end be the advantage of the parties entitled, or of other determinate parties for whom they are conferred in trust.
For example, The immediate purpose of a right of property, is either the advantage of the proprietor himself, or of some determinate party for whom he is a Trustee. But the ulterior or remote end for which such rights are conferred, is the advantage of the community at large. Consequently, absolute duties, and duties correlating with rights, are not distinguishable when viewed from a certain aspect. Considered in respect of their ultimate or remote scope, all duties regard persons generally.
Duties towards persons generally are, indirectly, duties towards determinate persons.
And as duties which regard directly determinate or assigned persons, regard indirectly persons generally and indefinitely, so is the converse of the proposition equally true. That is to say, duties which regard directly persons considered generally regard indirectly determinate persons. For as the general or public interest is an aggregate of individual interests, duties which tend to promote the good of the general or whole, tend to promote the good of its several or single members.
404 In order that we may conceive correctly many important distinctions, it is necessary that we should conceive precisely the truths which I have now stated.
Jus Publicum et Privatum.
For example, the Roman Lawyers, and most writers upon Jurisprudence, divide Law into Public and Private. According to the Roman Lawyers, Public Law is that ‘quod ad publice utilia spectat’ Private Law is that department of the whole, ‘quod ad singulorum utilitatem—ad privatim utilia—spectat.’
But this, it is manifest, is not the ground of the intended distinction. For since the general interest is an aggregate of individual interest, Law regarding the former, and Law regarding the latter, regard the same subject. In other words, the terms ‘public’ and ‘private’ may be applied indifferently to all Law. Which is as much as to say, that the distinction in question is a distinction without a difference.
It is manifestly impossible to distinguish the two departments by a property common to both. I shall endeavour, hereafter, to analyse the distinction.
Briefly stated, the distinction between Public and Private Law is this. The former regards persons as bearing political characters. The latter regards, persons who have no political characters, and persons also who have them as bearing different characters. In a word, Public Law is the law of political Status; and, instead of standing opposed to the body of the law, is a branch of one of its departments: namely, of the Law of Persons. In which light it was justly considered by Hale; and, after Hale, by Blackstone.
Civil Injuries and Crimes.
Again: Civil Injuries and Crimes are distinguished by Blackstone and others in the following manner. Civil Injuries are private wrongs, and concern individuals only. Crimes are public wrongs, and affect the whole community.
If Blackstone had but reflected on his own catalogue of crimes, he must (I think) have seen that this is not the basis of the capital distinction in question. For the greater half of them are offences against rights. In other words, they are violations of duties regarding determinate persons, and therefore affect individuals in a direct or proximate manner. Such, for instance, are offences against life and body; murder, mayhem, battery, and the like. Such, too, are theft and other offences against property.
But, independently of this, Blackstone’s statement of the distinction is utterly untenable.
All offences affect the community, and all offences affect 405individuals. But though all affect individuals, some are not offences against rights, and are therefore pursued, of necessity, criminally. That is to say, they are pursued directly by the Sovereign, or by some subordinate representing the Sovereign.
Where the offence is an offence against a right, it might be pursued (in all cases) either by the injured party, or by those who represent him. But, for reasons which I shall explain at large when I arrive at the distinction in question, it is often thought expedient to convert the offence into a crime. That is to say, the pursuit of it is not left to the discretion of the injured party or his representatives, but is assumed by the Sovereign or by the subordinates of the Sovereign. The differences between Crimes and Civil Injuries, is not to be sought for in a supposed difference between their tendencies, but in the difference between the modes wherein they are respectively pursued, or wherein the sanction is applied in the two cases. An offence which is pursued at the discretion of the injured party or his representative is a Civil Injury. An offence which is pursued by the Sovereign or by the subordinates of the Sovereign, is a Crime.60
60 See post, Lecture XXVIII. p. 501.
In many cases (as in cases of Libels and Assaults), the same offence belongs to both classes. That is to say, the injured has a remedy which he applies or not as he likes, and the Sovereign reserves the power of visiting the offender with punishment.
That the distinction should have been referred to supposed differences of tendencies, is wonderful. For, in different countries, the line between civil and criminal is utterly different. In almost all rude societies, the domain of Criminal Law is extremely narrow:61 and, for reasons which I shall shew hereafter, it generally enlarges as society advances.
61 Instances : Rome (‘furtum,’ etc.); England (Anglo-Saxon) (‘Weregild’); Old Germany. In the latter country, there was hardly any criminal law. Merely so much as to give effect to civil proceedings: e.g. In cases of offences against the Government and the Minister of Justice. This was necessarily the case: because the Sanction of Sanctions is always Punishment.
The distinction does not consist in this: that the mischief of crimes (as a class) is more extensive than that of civil injuries (as a class). But in this: the different tendencies of Civil or Criminal Procedure as applied in certain cases.
Difference between relative and absolute duties, etc.
It follows from what has been premised, that in distinguishing relative from absolute duties, and in distinguishing the kinds of the latter, we must not look to the ultimate scope or 406purpose with which duties are imposed. For, as that is the same in all cases, it can never enable us to draw the distinctions in question.
A relative duty corresponds, as I have said, to a right: i.e. it is a duty to be fulfilled towards a determinate person or determinate persons, other than the obliged, and other than the Sovereign imposing the duty. All other duties are absolute.
[All duties are duties towards the Sovereign, and, as towards the Sovereign, are relative. By ‘relative,’ therefore, as applied to duty, I mean a duty correlating with a right. By ‘absolute,’ as applied to a duty, I mean not a duty without relations, but without relation to a right.]
All absolute obligations are sanctioned criminally: they do not correspond with rights in the Sovereign, the Public, etc.62 They do not correspond with rights at all. But rights to enforce, exist in persons delegated by the Sovereign.
62 For examples of breaches of absolute obligations, see Blackstone, vol. iv. c. 8-13, Libel, p. 150; Smuggling, p. 154; Usury, p. 156; Forestalling, p. 158; Breach of prison, escape, etc. p. 129; Champerty, etc. p. 134; Quarantine, p. 161; Polygamy, p. 163. Other examples, pp. 115-127.
Most of the offences styled præmunire are breaches of obligations towards society at large.
e.g. In England, offences against absolute duties, like all other crimes, are said to be offences against the King, because it is part of his office to pursue those offences as well as other crimes.63
63 Blackstone, i. 268; iii. 40 ; iv. 88.
Distinctions between absolute duties.
Absolute duties are distinguishable by their proximate or immediate purposes.
The proximate purpose of some is the advantage of the party obliged. And these I style self-regarding.
The proximate purpose of others is the advantage of persons indefinitely: for instance, of the community at large, or of mankind in general.64
64 ‘Il y a bien des cas où la partie favorisée (the party on whom a right is conferred) n’est que le public entier, et non pas un individu.’—Traités de Législ. vol. i. p. 305.
‘In this case, the only persons invested with corresponding rights are, persons clothed with powers In Trust for the Government.’—Marginal Note.
The proximate purpose of others is not the advantage of any person or persons.
I shall adduce examples of them in that order.
Duties towards self.
Violations of these duties: Drunkenness.65 Suicide.66 Fornication, or simple breach of chastity, not accompanied by violation of a right residing in another, as by adultery, rape, 407seduction. (Rape includes injury to the party ravished, and to others who have an interest, etc.)
65 Blackstone, iv. 64.
66 Ibid. iv. 189.
There can be no right as against self. The end of a right is, that a party may be obliged by a sanction to do or to forbear, towards a determinate person or persons. But the act or forbearance, in this instance, depends upon the pleasure of the party. To give him a right to an act or forbearance to which he himself is bound, were absurd.
Duties towards persons indefinitely, or towards the Sovereign imposing the duty.
Treason67 is properly an offence against the Sovereign. But an offence against a member of a sovereign body is often so considered.68
67 Blackstone, iv. 81.
68 Offences against rights residing in members of sovereign powers, may be considered breaches of relative duties.
Duties not regarding persons.
Towards God (Ascetic observances). (Blackstone, vol. iv. p. 43.)
Towards the lower animals.
The Deity, an infant, or one of the lower animals, as being the party towards whom a duty is to be performed, might be said to have a right. But so, in the same case, might an inanimate thing. To call the Deity a person, is absurd.