[lit-ideas] Re: "A right and an obligation"
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
- Date: Sun, 7 Apr 2013 17:39:32 +0100 (BST)
________________________________
From: John McCreery <john.mccreery@xxxxxxxxx>
>I believe that in Australia, voters have both a legal right and a legal
>obligation to vote. Failing to vote results in a fine.
Well, on one way of defining these terms it might be better to say they have
simply a legal obligation to vote - not a 'right to vote', for they have no
right or power on which they exercise choice as to its exercise, but simply
vote as a matter of duty.
On another way of looking at it, and defining terms, they have a power to vote
and a duty to vote and so both a legal right and a legal obligation.
I am unsure it matters much unless we get confused. Nevertheless there is
something problematic about describing compliance with a duty as exercise of a
power or right - problematic in a sense in which it is not problematic to
describe as a right something that I may do though I am not under any duty to
do it. I have a duty not to drive negligently into my neighbour's parked car,
for example, but surely it would be odd to say I have a right or power not to
drive negligently into their car (even though, in another attenuated sense, it
is true I have a such a right).
In short, I am too tired trying to format a 64gb microcard in FAT32, having
spent hours on this today and yesterday, to bring better analysis to bear -
perhaps Hohfeld helps:-
"Hohfeld noticed that even respected jurists conflate various meanings of the
term right, sometimes switching senses of the word several times in a single
sentence. He wrote that such imprecision of language indicated a
concomitant imprecision of thought, and thus also of the resulting legal
conclusions. In order to both facilitate reasoning and clarify rulings, he
attempted to disambiguate the term rights by breaking it into eight distinct
concepts. To eliminate ambiguity, he defined these terms relative to one
another, grouping them into four pairs of Jural
Opposites and four pairs of Jural Correlatives.
(1) (2) (3) (4)
JURAL OPPOSITES Right
No-right Privilege
Duty Power
Disability Immunity
Liability
(1) (2) (3) (4)
JURAL CORRELATIVES Right
Duty Privilege
No-right Power
Liability Immunity
Disability
This use of the words right and privilege correspond respectively to the
concepts of claim rights and liberty rights.
Hohfeld argued that right and duty are correlative concepts, i.e. the one must
always be matched by the other. If A has a right against B,
this is equivalent to B having a duty to honour A's right. If B has no
duty, that means that B has a privilege, i.e. B can do whatever he or
she pleases because B has no duty to refrain from doing it, and A has no right
to prohibit B from doing so. Each individual is located within a
matrix of relationships with other individuals. By summing the rights
held and duties owed across all these relationships, the analyst can
identify both the degree of liberty — an individual would be considered
to have perfect liberty if it is shown that no-one has a right to
prevent the given act — and whether the concept of liberty is comprised
by commonly followed practices, thereby establishing general moral
principles and civil rights."
http://en.wikipedia.org/wiki/Wesley_Newcomb_Hohfeld
Does this help? Does it clear everything up?
In the Australian example there is a sense in which we might say a voter has a
'right to vote' and a 'right not to vote', except exercising 'the right not to
vote' gives rise to a penalty by way of a fine, whereas there is no such
penalty for voting. It would be different if in their system there were a legal
duty to vote that was specifically enforceable i.e. people who tried not to
vote would be compelled to:- in such a case, we might say people had no legal
'right not to vote' because they are legally compelled to vote. But in the
Australian system there is simply a financial incentive to vote or a financial
disincentive to not vote (the dis/incentive applied by way of a fine): and this
may fall short of there being 'no right not to vote'. And in the sense in which
there is 'a right not to vote' we may say there is no duty to vote either,
rather that exercise of the 'right not to vote' gives rise to a liability by
way of a fine. Or, as against the
foregoing, we might say the fine means there is no 'right not to vote' but
rather a duty to vote, and dereliction of that duty gives rise to a fine.
My suspicion is that these issues may turn on how we define our terms and this
may largely prove semantic - nothing substantive may depend, for example, on
whether we say in Australia there is a 'right not to vote' or whether we say
(using a different definition of terms) in Australia there is 'no right not to
vote': provided we are clear as to what's-what in legal terms. So a lawyer
asked by a client in Australia whether the client has a 'right not to vote' or
has 'no right not to vote', might (rightly) side-step a direct yes-or-no answer
- and simply explain the legal consequences of not voting (as against the
consequences of voting). That way the client may be properly legally advised -
it is a question beyond the remit of such advice to answer whether those legal
consequences are such that we should properly say there is a 'right not to
vote' or that there is 'no right not to vote' in Australia. That's one for the
philosophers - the law doesn't much
worry about even using the term "right", and other terms, univocally.
Is that the time?
Donal
Needing format advice
London
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