6.5 Relationship Between Rights and Duties

Four positions must be mastered for the examination: Strict correlativity (Austin's identity view): Right and duty are not two things but one thing seen from two ends. The right of the creditor and the duty of the debtor are the same legal relation viewed from opposite sides. Holland's critique: Correlativity holds generally, but a duty may exist without a corresponding right in the strict sense — duties towards animals, towards human corpses, towards God (in religious legal systems). Austin would answer that these are duties towards the sovereign or society in the abstract. Salmond's middle position: Every right has a duty (no right without a duty — a right without a duty would be unenforceable and thus a mere power), but the converse fails: there can be duties without rights (absolute duties, if admitted). Salmond therefore defined a right as an interest protected by a duty. Hohfeld's precision: Only claim-rights correlate with duties. Liberties, powers and immunities correlate with no-rights, liabilities and disabilities respectively. Thus "rights and duties are correlative" is true only for one of the four senses of "right." The practical takeaway for a Nepali lawyer: when you assert a right in court, you must be able to point to (i) the interest, (ii) the rule of law recognizing it, and (iii) the duty whose breach you complain…