This paper studies theoretical discussions on the existence of a special subset of rights which are not regarded only as rights but also as duties.[1] It elaborates the works of influential political and legal thinkers who have affirmed that existence such as Joel Feinberg and Jeremy Waldron.[2]
These authors see rights as a "heterogeneous category"[3] and strictly differentiate between rights that involve the freedom of choice of their holders, i.e. if person A has a right to do X, he/she has also a right not do X, and rights wherein rights and duties overlap. Compulsory or mandatory rights are not subject to the ordinary analytical scheme which puts rights on one side and duties on the other.[4] This is something that was stressed with particular analytical purity by American legal theoretician W. N. Hohfeld in his research of judicial reasoning. This subset of rights is characterized by its hybrid nature[5] or in other words, rights appear as a combination of rights and duties.
The paper dives neither into the complex discussion about whether rights are redundant with respect to duties or not nor into the discussion about duties as the fundamental concept and rights as a derivative one.[6] Our starting point is the common assumption that rights and duties actually represent the obverse and reverse side of a legal relation, or more precisely, that in a legal relation, the rights of one party correspond to the duties of the other party. In terms of mandatory rights, the relation between rights and duties is much more complex.
It needs to be underlined that mandatory rights do not encompass any right which is restrained by duties and responsibilities, e.g. for the purpose of protection of public interests or the interests of other people.[7] Unlike the American Bill of Rights which allows ambiguous characterization and various interpretations of rights, some constitutions and international treaties explicitly prescribe criteria for legislative restriction on rights.[8] For instance, there is a relevant restriction on the exercise of one of the fundamental rights granted by the Convention for the Protection of Human Rights and Fundamental Freedoms, the right of a person to protection of his or her private and family life from interference by a public authority (Article 8 (1)): "There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." Article 8 (2).
The paper provides for a brief overview of the theoretical considerations of the authors who have acknowledged the existence of mandatory rights and their arguments for the respective subset of rights as well as indicates the differences in comprehending their nature. The main purpose of the paper is to define the conditions under which one can speak about mandatory rights. What is targeted here is the question why mandatory rights deserve the title of right despite the failure to provide their holders with full freedom of choice. What justifies introduction of these rights is a question of great concern in this paper as well.
The paper is divided into three chapters. The first chapter offers and examines the arguments laid down by various authors in their papers dealing with the concept of mandatory rights. The second chapter sheds light on W. N. Hohfeld's analysis of fundamental legal concepts. The scheme of fundamental legal concepts, which was invented by Hohfeld for the purpose of clarification of legal rights and which has often been misinterpreted in the earlier literature, may also enlighten the discussion on mandatory rights. Hohfeld regarded analytical clarity as vital in terms of legal reasoning and found the idea that all the legal relations can be reduced to rights and duties unsatisfactory. Finally, the paper elaborates how Hohfeld's analytical scheme can be applied to clarify the right to compulsory voting. Not only that "the internal structure" of this right comes under the spotlight, which is dealt with by means of Hohfeld's analysis,[9] but the values lying in its background are elucidated too.[10]
Many of our rights contain freedom of choice in their core. It is said to be the most numerous set of rights which includes, for instance, freedom of expression, freedom of religion, freedom to marry and give birth and freedom of contract. It is the numerousness of these rights that encourages the
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impression that this set is the only set of rights and that a right to do something automatically implies a right not to do that.[11] This impression arises from liberal political theory and practice.[12] According to H. L. A. Hart, rights usually contain the idea of bilateral liberty. Joel Feinberg spoke about "full liberties" which include the idea of doing something and not doing something and are thus opposed to duties to do something. Some authors find the idea that someone can possess a right attached to the duty that the former is exercised without the power to renounce it contradictory.[13] The idea of liberty to act is deeply interwoven with the influential will or choice theory of rights, which is, among others, followed by Hart, and which qualifies holders of rights as "small scale sovereigns".[14] Rights correlative to duties occur to be a special case of legal powers, holders of which acquire liberty of amendment or abolition of the duties of other people, or of submission or no-submission of a lawsuit due to a failure to meet duties.[15]
However, in the modern world, there are many rights that cannot be deprived of and that seriously jeopardize the fundamental postulates of the will theory. These encompass certain political rights such as the right to vote, the children's right to education, the right to be a juror in common law countries, the right to mandatory military service, the children's right to get vaccinated against particular infectious diseases.[16]
Today one even mentions the right to punishment in the sense that an individual, pursuant to contemporary criminal law, cannot be deprived of the right to "to be punished by a rational criminal law".[17] Judges are provided with "freedom of choice" with respect to the guilt of the defendant, though their judgement is not based on "pure freedom" but it results from a prudent and responsible choice.[18] They are obliged to exercise their "authority" to punish defendants within the limits set forth by the law.[19]
The greatest share of authors who deal with mandatory rights single out the right to education as the most relevant example of this subset (Golding, Feinberg, Klepper). The reason for this is hidden in the fact that this right is the most remarkable example of a right which has retained this title and is primarily perceived as a right, though in most contemporary countries, it also implies the duty of all the children of a certain age to go to school.[20] Concerning mandatory rights, performance of action X is, unlike its omission, protected.[21] The below lines briefly present H. L. A. Hart's, Joel Feinberg's and Jeremy Waldron's theories of rights and search for mandatory rights therein.
In Hart's opinion, existence of a bilateral liberty of a holder of a right is a prerequisite for existence of that right.[22] In his paper entitled "Bentham on Legal Rights", Hart, regarding liberty-rights, referred to the right of a person to look over the fence at their neighbour; this person has neither a duty to look at him/her nor a duty not to look at him/her.[23] In line with this approach, the right to perform an action only serves to exclude the duty not to perform the respective action and individuals will always have the liberty to perform the action which they are bound to.[24] Pursuant to Hart's concept of bilateral liberties, somebody can be required neither to perform nor not to perform a certain action.[25]
Hart still admitted that in some special contexts, it is acceptable and justified to treat a unilateral liberty as a right.[26] Usually, when general duties are imposed by the law, it makes no sense to claim that those who have such duties have also the right to do what they are obliged to.[27] Nonetheless, there are some situations in which it is justified to deem unilateral liberties as rights. These cases are just an exception to the general rule. This exception does not only entitle but also require from individuals to perform a certain action that is generally prohibited. In this light, Hart mentioned a police officer who is ordered to arrest the suspect.
Yet, Hart's rights which contain unilateral liberties therein cannot be regarded as mandatory rights. From Howard Klepper's viewpoint, Hart's description of unilateral rights does not correspond to our common comprehension of rights: "We say that the police officer must arrest because he has a duty to arrest, not because he has a mandatory right to arrest". Unilateral liberties are actually only duties.[28] The author of this paper shares the opinion that Hart's definition of unilateral liberties entailing a duty to do something which is otherwise prohibited simply does not comprise usual examples of mandatory rights such as the right to education, the right to compulsory vaccination, the right to be a juror or the right to compulsory voting. None of these rights implicates the duty to do something which is usually prohibited. Therefore, it should be concluded that Hart's theory cannot extend over mandatory rights.[29]
It should be noted in Hart's defence that Hart himself acknowledged that his theory is satisfactory only on one level - the level of ordinary law and that it cannot be in any appropriate way applied to constitutional rights which are not based on a person's choice or benefit.[30]
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According to Joel Feinberg's standpoint, possession of rights includes the idea of claims: "the idea of rights has already been integrated into the idea of claims" and particular facts about rights are "easily, if not exclusively, expressible in the language of claims and claiming."[31] The possibility of claiming a right would be wasted if rights were reduced to duties.[32]
If a person has "a claim-right" to do something, he or she should have a liberty to do that, which implies somebody else's duty not to interfere therewith. According to Feinberg, this makes claimrights more complex and valuable to their holders than ordinary liberties are.[33]
Feinberg, similarly to Hart's differentiation between bilateral and unilateral liberties, made a distinction between half and full liberties,[34] which appears in his theory as the key element in the differentiation between mandatory and discretionary rights. Feinberg greatly leaned on Martin Golding's division of rights into welfarerights and option-rights.[35] However, he considered Golding's theory inappropriate. In Feinberg's eyes, the term of option-rights is less confusing than the term of welfare-rights. The former expression denotes this set of rights to a satisfying extent, so Feinberg saw it as an alternative to the term of discretionary rights while the term of welfare-rights should not be used for denotation of this set of rights due to its already well-established application.[36]
A discretionary right is "an area of autonomy within which the right holder alone is free to decide".
I have a discretionary right in respect to X when I have an open option to X or not to X correlated with the duties of others not to interfere with my choice. It is important to note that if I have a discretionary right to do X, it follows logically that I have a right also not to do X, if I should so choose. It cannot be the case that my right leaves me free to X but not free not to X. Any discretionary right to something is a right to take it or leave it, as one chooses.[37]
Feinberg defines a mandatory right in the following way:
A mandatory right, in contrast, confers no discretion whatever on its possessor: only one way of exercising it is permitted. It leaves one path open to him but no genuine "option" between paths. It imposes a correlative duty on others to provide that path and leave it unobstructed, but it imposes no duty upon others of non-interference with deviance from the single permitted track. If I have a mandatory right to do X then it follows logically that I have, not a right not to do X, but rather a duty to do X. In the case of mandatory rights, duty and right are entirely coincident.[38]
Pursuant to Feinberg, most "rights to perform action X" can be classified as "liberty rights" which provide their holders with freedom of choice to "do or not to do X which is attached to the duties of other people not to interfere with someone's choice". The so-called mandatory rights to "perform action X" provide their holders only with "the half-liberty to do X without the other half not to do X."[39]
Feinberg gave an answer to the question why this combination of rights and duties is considered a right anyway:
The answer is that the rights in question are best understood as ordinary duties with associated halfliberties rather that ordinary claim-rights with associated full liberties, but that the performance of the duty is presumed to be so beneficial to the person whose duty it is that he can claim the necessary means from the state and noninterference from others as his due. Its character as claim is precisely what his half-liberty shares with the more usual (discretionary) rights and what warrants his use of the word "right" in demanding it.[40]
The last passage reveals, as stated by Benditt, that Feinberg linked possession of a right with the existence of some important interests.[41] Unlike Hart, who is a supporter of the will theory, Feinberg brought the elements of the interest theory into the definition of mandatory rights.[42] As underlined by Golding, this set of rights, which he called welfare and Feinberg mandatory rights, cannot be related with "the sphere of autonomy".[43] A person's choice is not decisive when exercising these rights.
Why are they called rights anyway? In the referring passage, Feinberg emphasized that the fact that both mandatory and discretionary rights imply claims towards those who would try to deny the holders their rights could be an important circumstance in this view.
The quoted passage also reveals that Feinberg used to justify compulsion with respect to the exercise of these rights primarily through the benefit of their holders, which makes the theory of mandatory rights subject to critical views on paternalism, which is referred to in chapter 4. of this paper.
Jeremy Waldron's scientific attention was drawn by this hybrid form of rights. In his article entitled "Dignity, Rights and Responsibilities", he observed something special in this set of rights, which had not been clarified in a proper way until then and believed that precise analysis of this subset of
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rights, which he called "responsibility-rights" or "rights as a responsibility form", could facilitate better understanding of all the other sets of rights.[44] Hence, he provided a new "analytical instrument" for understanding this subset of rights, including the responsibility of right holders.[45] He uses "slippery term" - responsibility for denoting "constraints or obligations to the context in which rights are claimed and exercised".[46]
As suggested by the title of his article, rights and responsibilities (duties) are linked, with respect to this subset of rights, by the concept of human dignity.[47] Waldron's concept of human dignity is not based on the "inherent moral value of every human being but on the perception of their status or rank."[48] Today every human being has dignity and a rank, which used to be reserved only for nobility.
Every man a duke, every woman a queen, everyone entitled to the sort of deference and consideration, everyone's person and body sacrosanct, in the way that nobles were entitled to deference or in the way that an assault upon the body or the person of a king was regarded as a sacrilege.[49]
Those who are dignified are expected to behave responsibly. This was also noticed by Katherine Franke:
...responsibility is not merely a symptom or correlate of a certain set of rights understood as responsibility rights, but in how behaving responsibly is expected of those who aim to have their rights claim recognized by others.[50]
Linking rights and responsibilities as well as indication of the equal value of these two notions in the American legal thought have grown into a topic of great interest for a large number of authors. Ever since the publishing of Dworkin's book named Taking Rights Seriously in which rights are treated as trumps with respect to utilities or benefits and which is often to blame for the imbalance between these two ideas, there has been a fierce discussion. Still, as qualified by Fleming in his article entitled "Taking Responsibility as Well as Rights Seriously" a fair share of the critiques of Dworkin's theory of rights refers to misunderstandings and simplifications. Since Dworkin himself, particularly in his work called Life's Dominion used to put an accent on the importance of responsibility when deciding on abortion and euthanasia.[51]
According to Fleming, Dworkin propagates "moralized liberalism" in the sense that he supports the power of governments to promote moral values by means of civil education and similar mechanisms in exercise of highly important rights by individuals such as decisions on life and death, which are under the spotlight in this book. However, the final decision remains in the hands of an individual or in other words, governments must not force individuals to adapt themselves to the government's standpoint on important decisions. The government may legitimately encourage people to take advantage of their rights in a responsible manner.
In terms of the duty (responsibility) to vote, it would imply unjustified limitation of individual freedoms if they were suggested to vote for a particular candidate or party. In situations envisaged by contemporary democracies in which citizens are required only to participate in conducting state affairs, i.e. to freely vote for their candidates at the elections, this is not the case.[52]
Let us get back to Waldron's perception of responsibility-rights. For Waldron, parental rights appear as the primary example (as they are set forth in Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms and in Article 6 of the German Grundgesetz).[53] A parental right is not only a duty or a number of duties which shall be exercised by someone but also a right which the parents hold against other people. Parents do not have only duties but also the right to make decisions on their children whereas the state and other individual have no right to interfere therewith.
His other examples include the right to bear arms, which is set forth by the Second Amendment to the United States Constitution, then the right to mandatory military service, the right to be a juror and the right to vote. Waldron sets out criteria for responsibility rights:[54]
1) the designation of an important task,
2) the privileging of someone as the person to perform the task, making the decisions which the task requires,
3) doing so in view of the particular interest that that person has in the matter, and
4) the protection of their decision-maker pursuant to this responsibility against interference by others and even by the state (except in extreme cases).
These criteria make it clear that responsibility-rights do not refer to unprotected liberties but they shall be applied, as explained by Brian Bix, only if "some additional protection is given for the choices the agent makes in relation to the activity".[55] In terms of parental rights, parents are "immune" to almost all interference with their exercise and can be deprived thereof only in the event of the most severe child negligence or abuse. It is now clear that Waldron, like Feinberg, finds justification for the existence of these rights in the special interest of their holders.
American legal theoretician Wesley Newcomb Hohfeld greatly contributed to analytical
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jurisprudence by elucidating eight fundamental legal concepts in the early 20[th] century.[57] These eight fundamental legal concepts originated from Hohfeld's dissatisfaction with the idea that all the jural relations can be reduced to rights and duties. Hohfled was neither the first to divide the concepts of "rights" and "duties" into a number of different components nor did he claim to be so. Nevertheless, he was a pioneer in systematic presentation of the ideas of his predecessors and the first to clearly present mistakes of legal commentators who had not paid much attention to these differences.[58]
A legal opinion cannot be true if one is not able to find a precise distinction between four different types of "rights": "right " (claim-right), "privilege" (liberty),"power" and "immunity", and four different types of "duties": "duty" "no-right", "liability" and "disability".[59] These are the "lowest generic conceptions" in law, which all the legal issues can be reduced to.
For that purpose, he created a logical system which links fundamental legal concepts with their opposites and correlatives.[60]
(right / privilege immunity / power
Jural Opposites
(no-right / duty liability / disability
(right / privilege immunity / power
Jural Correlatives
(duty / no-right disability / liability
Every pair of correlatives must exist together.[61] Every jural relation between two parties is characterized by the fact that existence of one conception on one side implies existence of the correlative conception on the other side.[62] On the other hand, none of the pairs of opposites can exist together.[63]
The Hohfeldian concept of claim-right or right in the strict sense is designated by its correlative - a duty.[64] It governs the way in which others can be requested to act in a certain manner.[65] The concept of liberty is a negation of the concept of duty and the correlative to the concept of no-right.[66] Liberty determines permitted acts of holders of a liberty.[67] Powers are a special kind of liberty.[68] They enable generation, shaping and abolition of jural relations.[69] A person subject to a "lawful power" has a liability.[70] The Hohfeldian immunity protects current jural relations of its holder from some harm or paternalism.[71] Immunity is an exception from powers and the opposite to liabilities.
Hohfeld's saw his fundamental legal concepts as "atomic components of a legal system".[72] The term of "right" means claim-right, liberty, power or immunity. He believed that each of these legal rights is simple and sui generis. His terminology does not include a term for a bundle of claim-rights, liberties etc.[73]
Hohfeld did not foresee the issue that intrigues today's theoreticians. Nowadays, a fair number of authors share the opinion that numerous rights are really a combination of two or more Hohfeldian elements.[74] These are molecular rights composed of claim-rights, liberties, powers and immunities such as the right to freedom of speech and the right to privacy. In our opinion, the same is true, as we shall see in the following sections of this paper, for the right to vote. In this complex structure of various Hohfeldian elements, we must find one that is defining its core.[75]
This chapter is focused on the comparison of Hohfeld's perception of liberties with similar considerations of Hart and Feinberg. The Hohfeldian opposite of duty is liberty or privilege. His perception of liberties differentiates from the common perception of liberties in legal literature since the former does not provide the possibility of choice between different alternatives. A liberty negates the content of a duty, but it has the same subject and object as the duty has.[76] Unlike rights in their strict sense, which entail action of other people aimed at performing duties, liberties refer to the action of right holders themselves. A person can only have a liberty to do something but not a liberty that someone else does something. A Hohfeldian liberty (privilege) is by definition a unilateral liberty or half liberty.[77] Hohfeld primarily saw liberties as the opposites of duties and hence, he did not mention "a liberty to do" but only a liberty that something does not have to be done.
The aforementioned suggests that nothing prevents us from concluding that the Hohfeldian half-liberty to do something corresponds to the duty to do that. Somebody may have a duty to do what he or she is entitled to.[78]
This section attempts to clarify why in countries with the right to compulsory voting, it is still possible to call it that way. Some authors think that in appertaining constitutional systems, the right to
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vote is not a right but exclusively a duty. This is evident in Rowan Cruft's example in "Why Aren't Duties Rights?" when he speaks about Hohfeldian disabilities which release their holders from general duties:
Some disabilities exempt their holders from general duties (e.g. within a system where all citizens except convicted criminals hold a legal duty to vote, the convict's disability as regards voting seemingly works as an exemption). We would not call these duties and disabilities "rights". (Emphasis added)[79]
Why is the right to vote in those countries still a right? In the event a right to X and a duty to do X merge, like in case of compulsory voting, it comes to the following situation: On the one hand, citizens have no control over the decision whether to vote or not since the duty constituting an integral part of this right is binding for them.[80] On the other hand, this right protects the voters from possible abuses or denial of their voting rights by state officials, providing the former with a valid claim for exercise of their right.
Although in this case the emphasis is put on the duties, citizens who would be otherwise rejected the voting right on discriminatory grounds have the right to claim its exercise with respect to those who put them into an unfavourable position.[81] Wellman stressed that in such a case, an affected person may refer to his/her "protected unilateral liberty" with respect to the person who intended to discriminate against him/her. This formulation led Wellman to the conclusion that Hart was not right when he qualified the core of every right as a bilateral liberty. What is necessary for comprehension of rights is not a "recognized choice", but an "adversarial context".[82] Rights gain relevance in the context of a conflict of the will of two parties (no matter if it is a real or potential conflict). In such a case, the rights prescribe whose will is to prevail.[83]
The second relevant issue emerging in this context relates to justification of mandatory rights or more precisely, to whom is the voting right owned (cui bono). In Cruft's opinion, introduction of compulsory voting is justified due to its effect for the right holder.[84] Concerning the mandatory right to education, some authors did not find the justification in the students' right but in the right of all the other citizens to live in an educated society.[85] Could the same conclusion be drawn in regard to the duty -right to vote?
When it comes to mandatory rights, one often faces criticism that such a concept is paternalistic[86] Paternalism is deemed eligible when it regulates children-related issues and not when it touches upon the rights of adults. Feinberg accentuated that therefore most authors single out compulsory education as an example of a mandatory right.[87]
In this view, Klepper differentiates between mandatory rights in a strong paternalistic sense and mandatory rights in a weak sense:
I will distinguish between the strong paternalistic sense of mandatory right in which the right is made mandatory because of its value to the individual who possesses it, and a weak sense in which "mandatory right" is just a shorthand for cases in which a person has a right to perform an action, and at the same time a duty to perform that action that corresponds to a right of the general public that she do so.
Klepper expressed the opinion that all the examples of mandatory rights are mandatory rights in a weak sense, which means that their justification pertains to a "public benefit". As far as mandatory rights in a weak sense are concerned, he particularly accentuated the right to vote in countries which impose it as a duty.
I will argue that all the purported cases of mandatory rights may be explained and understood in the weak sense. I will not argue that a public good does in fact justify legal coercion in the mandatory rights examples; rather I will argue that in all of the examples that authors have given of mandatory rights, compulsion of the right-holder may be at least putatively justified by a benefit to the public rather than a benefit to the right-holder herself...But in cases where the only putative justification for coercion is a paternalistic one, we do not talk of mandatory rights.[88]
It means that the fundamental difference between these two sets of rights (discretionary and mandatory rights) can be summed up as the question whether they are intended for protection of broader social interests or the interests of individuals themselves. It entails that in this light one does not need only analytical reasoning but also "normative research" on "the purposes" and "values" of particular rights.[89] Hence the right to vote cannot be viewed beyond a collective context, as if it was justified only by the welfare of a referring person.[90] In this light, the state has "an enforceable claim" towards citizens.
Lisa Hill asserted that the duty to vote is (horizontally) owned to other citizens and not (vertically) to the state.[91] This duty is owned to other members of a political community. Elections represent a collective endeavour in which we all have to participate in order to live in a representative democratic society in which all the interests are satisfied. Otherwise, it will come to declining resemblance between an average voter and an average citizen.[92]
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This fact questions the principle of political equality. Empirical studies have revealed that low voter turnout leads to unequal representation of different social-economic groups. Educated people and those with higher incomes vote more often and therefore political parties adjust their programmes and politics to them. In that way active voters with relatively homogenous characteristics have disproportional effect on shaping of state politics.[93] Despite the doubtful usefulness of differentiation between positive and negative liberties in the modern world, it should be noted that the right to vote cannot be, contrary to the common attitude towards political rights, regarded as a purely negative liberty which requires from the state only not to interfere with a person's choice.[94] Voting requires from the state a number of activities that represent a large financial burden.
Waldron considers compulsion in the form of the duty (responsibility) to vote a mechanism for the exercise of this right and not for its limitation.
Also, the element of right in this case has a clear sense of empowerment and choice that is largely unaffected by the element of compulsion. The voter may exercise her right as she pleases, voting for whomever she likes or even none of the above, and her voting in this way represents a degree of control over the political system, assigned to her, on an equal basis with its assignment to every other citizen. These elements of choice and empowerment are not limited by the duty of compulsion; on the contrary, the compulsion represents a requirement that a choice be made and that the citizen accept the empowerment offered to her by the democratic franchise.[95]
The right to vote is not based on the idea of freedoms such as freedom of expression.[96] Voting is exercise of the Hohfeldian power, performance of action which (if it is carried out by an adequate number of other people) changes the distribution of rights and duties within a community.[97] It is a power connected with a duty without a liberty not to exercise it.[98]
Powers can also be divided into full and half-powers.[99] The right to compulsory voting is a halfpower since its holders have no discretion regarding its exercise.[100] The historical struggle for the right to vote is wrongly labelled as a fight for freedom. The right to vote is not a liberty but a Hohfeldian half power generated by the authorities who have prescribed the voting criteria.[101] What is missed by those who could not vote was not the liberty to vote but a legal liability.[102] Regardless of the fact that in Hohfled's scheme of fundamental legal concepts, it has found its place among "duties" or "legal burdens", liability does not always have to be "onerous".[103]
The complex interrelation between rights, duties and responsibilities comes to the forefront of numerous discussions.[104] Legal theoreticians used to prefer rights over other concepts. However, today it is beyond any doubt that they are mutually inclusive.[105] The study of mandatory rights is the topic that nowadays draws the attention of the most prominent names of legal and political philosophy. Even though authors give them various names and designations, they have one thing in common: authors are unanimous that rights are not something exclusively desirable -they also imply duties and responsibilities which individuals do not want to insist on. As asserted by George Rainbolt:
Rights-duties reveal something important about rights. Rights are not necessarily something that individuals want or insist on. Every person has a right which is not wanted.[106]
Most authors are aware of dangers arising from mandatory rights. Feinberg reminds us of the Jacobin terror during the radical phase of the French revolution and other ominous arguments which have been applied throughout history.
That there can be freedom to do good but not to do evil, to speak truth
but not falsehood, to worship true but not false gods.[107]
Waldron here lays down the example of propagators of prohibition of abortion who claim that the women's right to have power over their body should be perceived as a responsibility similar to the responsibility of parents and not as a pure right of choice.
The concept of mandatory right therefore seems to be paternalistic. Paternalism is considered justified when it comes to children while it is unacceptable in every context involving adults. However, the justification for the existence of mandatory rights is not only based on the interests of their holders but it also implies the interests of a broader social community. Such an approach is as well disclosed in this paper through analysis of the right to compulsory voting. The right to vote and other political rights cannot be perceived as an exclusive matter of the interests of individuals. It encompasses the rights of all members of a community to have a more representative government.[108] The right to vote empowers a person to participate in defining a state policy and it is one of the rituals through which a person reaffirms his or her status within a society of equals. These elements of "choice" and "empowerment" are in no way jeopardized by introduction of compulsory voting. [109] ■
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NOTES
[1] An earlier version of this paper was presented at the XXVII World Congress of the International Association for the Philosophy of Law and Social Philosophy (IVR), Washington, DC, 27 July - 1 August 2015.
[2] It can be asserted that nowadays it is common to differentiate between these two subsets of rights (Martin Golding, Joel Feinberg, Carl Wellman, Jeremy Waldron), though their differentiation implies different terminologies. This paper takes advantage of Feinberg's terminology in order to differentiate between discretionary and mandatory rights.
[3] Waldron, J., Dignity, Rights, and Responsibilities, ARIZ. ST. L.J., vol. 43, 2012, p. 1134.
[4] Ibid. 1107.
[5] Ibid. 1106.
[6] Donnelly, J., How are Rights and Duties Correlative?, Journal of Value Inquiry, vol. 16, 4/1982, p. 290. Christopher, A., Analysis of Right in Kamenka, E., and Erh-Soon Tay, A. (eds.), Human Rights, London, Edward Arnold Ltd, 1978, p. 82.
[7] Waldron, J., Dignity..., cit., p. 1111. Waldron points to Article 10 (2) of the Convention for the Protection of Human Rights and Fundamental Freedoms as an example of reasons for restriction on the right to freedom of expression. http://www.echr.coe.int/Documents/Convention_ENG.pdf, 20 October 2015. According to Waldron, the purpose of those restrictions refers to protection of "potential duties" towards a public good. See also Bix, B. H., Rights, Responsibilities, and Roles: A Comment on Waldron, Ariz. St. L. J., vol. 43, 2011, p. 1138.
[8] Sadurski, W., Postcommunist Charters of Rights in Europe and the U.S. Bill Of Rights, vol. 65, 2/2002, Law and Contemporary Problems, p. 226.
[9] Wenar, L., Rights in The Stanford Encyclopedia of Philosophy (Fall 2015 Edition), Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/fall2015/entries/rights/>. 20 October 2015.
[10] Blocher, J., Rights To and Not To, California Law Review, vol. 99, 2012, p. 8.
[11] Golding, M. P., Towards a Theory of Human Rights, The Monist, vol. 52, 1968, p. 542.
[12] Lardy, H., Is there a Right not to Vote?, Oxford Journal of Legal Studies, vol. 24, 2 /2004, p. 303.
[13] Blocher, J., op. cit., p. 777.
[14] Hart, H. L. A., Essays on Bentham: Studies in Jurisprudence and Political Theory, Oxford, Clarendon Press, 2001, p. 183.
[15] ibid., p. 188, Matulovič, M., Jedan esej iz povijesti pravne analize: W. N. Hohfeld, Zbornik Pravnog fakulteta Sveučiliąta u Rijeci, vol. 10, 1989, p. 75.
[16] Feinberg, J., Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy, Princeton, N.J., Princeton University Press, 1980, p. 157.
[17] Hallevy, G., The Right to be Punished: Modern Doctrinal Sentencing, Springer-Verlag Berlin Heidelberg, 2013, p. 10. According to Hallevy: "With the emergence of modern criminal law, the offender gained the right to be punished by a rational criminal law rather than being lynched by an angry mob. The present-day offender may have the right to be punished by doctrinal sentencing rather than according to vague, unclear, and uncertain principles."
[18] Waldron draws a similar conclusion in regard to the role of jurors. Waldron, J., Dignity..., cit., pp. 1123-1125.
[19] Wenar, L., The Nature of Rights, Philosophy and Public Affairs, vol. 33, 3/ 2005, p. 231.
[20] Feinberg, J., Voluntary Euthanasia and the Inalienable Right to Life, Philosophy and Public Affairs, vol. 7, 2/ 1978, p. 105.
[21] Blocher, J., op. cit., p. 770.
[22] Martin, R., On Hohfeldian Liberties, ANALELE UNIVERSITÄTII DE VEST DIN TIMIÇOARA, SERIA FILOSOFIE, ANNALES UNIVERSITATIS OCCIDENTALIS TIMISIENSIS , SERIES PHILOSOPHIA, vol. XI, 1999, p. 84.
[23] Wellman, C., Real Rights, New York, Oxford University Press, 1995, p. 6.
[24] Hart, H. L. A., op. cit., p. 167.
[25] See Martin, R., op. cit., p. 84.
[26] Hart, H. L. A., op. cit., p. 167.
[27] Ibid., p. 174.
[28] Klepper, H., Mandatory Rights and Compulsory Education, Law and Philosophy, vol. 14, 2/1996, p. 142.
[29] Wellman, C., Real Rights..., cit., p. 64.
[30] Hart, H. L. A., op. cit., p. 193.
[31] Golding, M. P., op. cit., p. 430.
[32] Wellman, C., An Approach to Rights, Studies in the Philosophy of Law and Morals, Dordrecht, Boston, London, Kluwer Academic Publishers, 1997, p. 4.
[33] Feinberg, J., Voluntary Euthanasia..., cit., p. 94.
[34] Feinberg, J., Rights, Justice..., cit., pp. 147, 237.
[35] Golding, M. P., op. cit., p. 441.
[36] Feinberg, J., Voluntary Euthanasia..., cit., pp. 104-110. 37 Ibid., p. 104, Golding, M. P., op. cit., p. 446.
[38] Feinberg, J., Voluntary Euthanasia..., cit., p. 104.
[39] Feinberg, J., Rights, Justice..., cit., p. 147.
[40] Ibid., p. 148.
[41] Benditt, T. M., Rights, Totowa, N. J., Rowman and Littlefield, 1982, p. 16.
[42] loc. cit.
[43] Golding, M. P. op. cit., p. 442.
[44] Waldron, J., Dignity., cit., p. 1116.
[45] Franke, K. M., Dignifying Rights: A Comment on Jeremy Waldron's Dignity, Rights, and Responsibilities, Arizona State Law Journal, vol. 43, 2011, p. 1177.
[46] Waldron, J., Dignity., cit., p. 1110.
[47] Franke, K. M., op. cit., p. 1177.
[48] Ibid., 1177.
[49] Waldron, J., Dignity..., cit., p. 1120. See also Franke, K. M., op. cit., p. 1177.
[50] Franke, K. M., op. cit., pp. 1177-1178.
[51] Fleming, J. E., Taking Responsibilities as Well as Rights Seriously, Boston University Law Review, vol. 90, 2010, p.839.
[52] See Harvard Law Review (HLR). 2007. The Case for Compulsory Voting in the United States, p. 498.
[53] Waldron, J., Dignity., cit., pp. 1114-1116.
[54] Ibid., p. 1116, Bix, B. H., op. cit., p. 1139.
[55] Ibid.
[56] This section of the paper is based on Tucak, I., Usability of Hohfeld's Analysis of Fundamental Legal Concepts While Teaching Continental Law in Current Problems in Legal Theory and in Comparative Law, Rebreanu, V. (ed.), Cluj-Napoca, 2012, pp. 491-622.
[57] See Hohfeld, W. N., Fundamental Legal Conceptions as Applied in Judicial Reasoning, edited by David Campbell and Philip Thomas, Aldershot, Burlington, USA ... [etc.], Ashgate, Dartmouth, 2008, p. 4, Pound, R., Fifty Years of Jurisprudence, Harvard Law Review, vol. 41, 4/1938, p. 471.
[58] The division of the generic term of "right" into a number of components is involved into papers of analytical theoreticians such as John Austin and John Salmond. See Pound, R., op. cit. and Ratnapala, S., Jurisprudence, Cambridge University Press, 2009, pp. 316, 296.
[59] This Article will keep track with most contemporary legal writers who opt for application of the term of liberty instead of privilege. These two concepts take the "same structural position", although Hohfeld preferred the term of privilege. See Hohfeld, W. N., op. cit., p. 17. Com. Singer, J. W., The Legal Rights Debate in Analytical Jurisprudence from Bentham to
- 149/150 -
Hohfeld, Wisconsin Law Review, 1982, p. 987 n. 14, Kramer, M. H., Rights Without Trimmings in Kramer, M. H., Simmonds, N. E., and Steiner, H., A Debate Over Rights: Philosophical Enquiries, Oxford, Oxford University Press, 2002, pp. 7-111, Rainbolt, G. W., The Concept of Rights, Dordrecht, NL, Springer, 2006. For the same reason this article uses the term "claim-right" instead of Hohfeld's term "right".
[60] Ratnapala, S., op. cit. p. 301.
[61] Corbin, A. L., Legal Analysis and Terminology, The Yale Law Journal, vol. 29, 1919-1920, p. 166.
[62] Ratnapala, S. op. cit. p. 301.
[63] Singer, J. W., op. cit. p. 986, Cook, W. W., Introduction to Hohfeld, W. N., Fundamental Legal Conceptions as Applied in Judicial Reasoning, 3rd. ed., Yale University Press, New Haven, London, 1964, p.10 n. 13.
[64] Hohfeld, W. N., op. cit. p. 13.
[65] Eleftheriadis, P., Legal Rights, Oxford University Press, 2008, p. 6.
[66] Hohfeld, W. N., op. cit. p. 14.
[67] Eleftheriadis, P., op. cit. p. 6.
[68] Ratnapala, S., op. cit. p. 306.
[70] Wenar, L., The Nature of Rights..., cit., p. 232.
[70] Ratnapala, S., op. cit. p. 307.
[71] See Eleftheriadis, P., op. cit. p. 6, and Ratnapala, S., op. cit. p. 308.
[72] Com. Tapper, C. F. H., Powers and Secondary Rules of Change in Simpson, A. W. B. (ed.), Oxford Essays in Jurisprudence (Second Series), Oxford. Clarendon Press, 1973, pp. 242-277, p. 260.
[73] Honore, A. M., Rights of Exclusion and Immunities Against Divesting, Tulane Law Review, vol. 34, 1949-1960, p. 446.
[74] Wenar, L., The Nature of Rights., cit., p. 229.
[75] Wellman, C., An Approach ., cit., p. 31.
[76] Sumner, L. W., The Moral Foundation of Rights, Oxford, Clarendon Press, 1987, p. 24.
[77] Hart, H. L. A., op. cit. p. 167.
[78] Martin, R., op. cit., p. 84. In Sumner's opinion, this feature of liberties arises from the fact that they represent "deontic permission" and a system of rules will never simultaneously require and prohibit certain action. Sumner, L. W., op. cit., p. 24.
[79] Cruft, R., Why Aren't Duties Rights?, Philosophical Quarterly, vol. 46, 233/2006, p. 180.
[80] Nickel, J. W., Making Sense of Human Rights: Philosophical Reflections on the Universal Declaration of Human Rights, University of California Press, 1987, p. 20.
[81] Feinberg, J., Voluntary Euthanasia..., cit., p. 109, Wellman, C., An Approach ., cit., p. 66. The argument that the right to compulsory voting is primarily a right and not a duty is backed by the fact that the Croatian Criminal Code in its Chapter XXXI lays down seven criminal offenses against voting rights: violation of the freedom to vote, denial of the right to vote, abuse of the right to vote, violation of the secrecy of the ballot, destruction and falsification of ballot documentation, electoral fraud and bribing a representative (Articles 333-339, Official Gazette, No. 124/11, 144/12, 46/14, 61/14).
[82] Wellman, C., Real Rights... , cit., p. 66.
[83] Wellman, C., An Approach ., cit., pp. 4, 124.
[84] Cruft, R., op. cit., p. 184.
[85] Feinberg, J., Voluntary Euthanasia..., cit., p. 108.
[86] ibid., p. 106. Hill, relying on Calabresi and Melamed, underlines that the right to compulsory voting is nothing but self-paternalism (a particular form of autonomy). Every kind of paternalism does not have to be repulsive. There are situations in which a person surely regrets his or her decisions and wishes that they had never been made. In this light, Hill gives an example of a person who does not respect for the paternalistic laws on compulsory wearing of seat belts in vehicles, which have proven to be the most efficient occupant protection in all types of vehicle crashes. Calabresi, G. and Melamed, D. A., Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, Harvard Law Review, vol. 84, 6/1972, p. 1110 note 40, Hill, L., For Compulsory Voting, Electoral Regulation Research Network / Democratic Audit of Australia Joint Working Paper Series, Working Paper No. 30 (March 2014), https://www.law.unimelb.edu.au/files/dmfile/WP30Hill2.pdf. 11 August 2014.
[87] Feinberg, J., Voluntary Euthanasia..., cit., p. 106.
[88] loc. cit.
[89] Blocher, J., op. cit., p. 8.
[90] Klepper, H., op. cit., p. 147.
[91] Lardy, H., op. cit., p. 317 n. 36, Hill, L., On the Reasonableness of Compelling Citizens to "Vote": the Australian Case, Political Studies, vol. 40, 1/ 2002, pp. 93-94.
[92] Hill, L., Low Voter Turnout in the United States: Is Compulsory Voting a Viable Solution?, Journal of Theoretical Politics, vol. 18, 2006, p. 216, Hill, L., For Compulsory Voting., cit., pp. 3-4.
[93] For more details on this topic, see also Tucak, I. and Sabo, D., Compulsory Voting, Contemporary Legal and Economic Issues IV, Barkovič Bojanič, I. and Lulič, M. (eds.), Osijek, Faculty of Law, forthcoming.
[94] Waldron, J., Law and Disagreement, Oxford [etc.], Oxford University Press, 2004, p. 233.
[95] Waldron, J., Dignity., cit., p. 1124.
[96] Dias, R. W. M., Jurisprudence, 4th ed., London, Butterworths, 1984, p. 37.
[97] Waldron, J., Law and Disagreement... , cit., p. 233.
[98] Dias, R. W. M., op. cit., p. 37.
[99] Wenar speaks about "single" and "paired" powers. Wenar, L., The Nature of Rights., cit., p. 231.
[100] loc. cit.
[101] The right to vote is not identical with freedom of expression. Waldron, J., Law and Disagreement... , cit., p. 233. Using the Hohfeldian terminology, Waldron has put an emphasis on an important difference between the right to freedom of expression and the right to vote. Whereas the right to freedom of expression is a Hohfeldian liberty or in case of Wellman's amendment to Hohfeld's analysis, a set of different Hohfeldian elements with a liberty in their centre, the right to vote is a Hohfledian power. Power to vote is surrounded by affiliated Hohfeldian elements: claim-rights, liberties, and immunities of the holder of this right. Every associated element is connected with the central core in a way that it provides the holder of a right with some type of liberty or control in relation to the exercise of the core. Rainbolt, G. W., op. cit., p. 104, Wellman, C., Real Rights... , cit., p. 81.
[102]Analysing the struggle for same-sex marriages and sexual freedoms, Carl Wellman concluded that this struggle is misinterpreted as a fight for freedom instead of being perceived as a fight for the power to enter into marriage. Wellman, C., Real Rights... , cit., p., Franke, K. M., The Domesticated Liberty of Lawrence v. Texas, Columbia Law Review, vol. 104, 2004, p. 1414.
[103] Hohfeld here gave an example of judicial interpretation of the Virginia statute on the duty of jurors: "In Booth v. Commonwealth, the court had to construe a Virginia statute providing "that all free white male persons who are twenty-one years of age and not over sixty, shall be liable to serve as jurors, except as hereinafter provided." According to Hohfeld, this is the liability to generate a duty of jurors. A duty shall emerge if the parties in proceedings and court officers impose a specific duty to be a juror. Hohfeld, W. N., op. cit., pp. 26-27.
[104] Feldman, D., op. cit., p. 103.
[105] loc. cit.
[106] Rainbolt, G. W., op. cit., p. 36.
[107] Feinberg, J., Voluntary Euthanasia..., cit., p. 107.
[108] Waldron, 2004:233.
[109] Waldron, 2004:233.
Lábjegyzetek:
[1] The Author is Assistant Professor Department of Legal Theory and Jurisprudence Josip Juraj Strossmayer University of Osijek Faculty of Law Osijek.
Visszaugrás
