6.4 Meaning and Kinds of Duty

A duty is the obligating or binding force of law upon a person — what one is required by law to do or forbear. More precisely, a duty is the correlative of a right: the burden of the right. Classifications: Legal and moral duties — Legal duties are enforceable by courts; moral duties (gratitude, charity, filial respect) are enforced only by conscience and society. A legal duty may have no moral force (a harsh contract term) and a moral duty may have no legal force (rescuing a drowning stranger). Some duties are both — the duty not to murder. Positive and negative duties — to act (pay tax, maintain a parent under the Criminal Code's maintenance provisions) versus to forbear (not to defame, not to trespass). Absolute and relative duties — According to Austin, duties owed to persons determinate (relative — pay X money) or indeterminate/owed to society at large (absolute — do not murder, do not pollute). Salmond, however, denied that absolute duties exist — every duty, he argued, is owed to some right-holder, even if that holder is the sovereign or the community in its corporate capacity. Primary and secondary duties — a primary duty exists independently (do not assault); a secondary duty is consequential and remedial (the duty to compensate for the assault). The whole law of…