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Obligation

OBLIGATION.

Since Plato wrote of political obligation in his dialogue Crito, obligation in general has been of ongoing interest to philosophers. In that dialogue, Socrates argues that he was under an obligation to obey the laws of Athens and comply with a sentence of death. During the course of the argument, he raises and offers solutions to many of the central issues about obligation that philosophers still puzzle over. For instance, how can obligations have the grip on us that they doin some cases, so that we are willing to die rather than not fulfill them? What is the nature and justification of moral and legal obligations? Do we have an obligation to obey the state, and if so, why?

The range of issues and positions relating to obligation is vast, given that there are few areas of moral and political philosophy in which obligation does not play a role. In what follows, four topics that have been of particular interest to contemporary philosophers are discussed: (1) the analysis and justification of obligations; (2) legal and moral obligations; (3) obligations, roles, and identities; and (4) agent-relative obligations.

The Analysis and Justification of Obligations

Obligation is normative, concerned with how things should be (not necessarily with how they are). In particular, it is a deontically normativeconcerned with duty, or what is permissible, forbidden, and the likeas opposed to axiologically normative, concerned with what is good, bad, better, or worse. A given deontic normative perspective classifies actions, laws, institutions, or whatever as permissible (acceptable) or impermissible (unacceptable, wrong, forbidden). The classifications are interdefinable. For instance, an option is permissible when it is not impermissible, obligatory when permissible and every alternative option is impermissible.

Obligation is a relation with as many as three places: the person or entity who has an obligation (call this the agent ), what that agent is obligated to do (the performance ), and the person or entity to whom the agent owes the performance (the object ). Because the object of an obligation is owed the performance, that person or entity has a right to it, and when an obligation has an object, obligations and rights are reciprocal: if someone has a right to your ing, then you have an obligation to; and if you have an obligation to someone to, then that someone has a right to your ing. Philosophers differ over whether all or just some obligations have objects, and so whether all or just some obligations come with reciprocal rights. For instance, some hold that a person is morally obligated to help others, but this obligation does not give anyone a right to be helped. Often, obligations that do not generate reciprocal rights for their objects are called imperfect obligations, while those that do generate reciprocal rights are called perfect obligations.

Some obligations are agent-relative (or agent-centered ) and others are agent-neutral. Agent-relative obligations are those whose performance contains within its scope an essential reference back to the agent and to the agent carrying out that performance (McNaughton and Rawling, 1991). Hence, such obligations state that the agent is obligated himself to perform some action. An agent-neutral obligation, by contrast, states only that the agent ought to ensure the performance of the action, whether by himself or someone else. For instance, my obligation to help a stranger is really just the obligation that I make sure the stranger is helpedwhether by me or by someone nearby does not matter. By contrast, my obligation to go to my son's birthday party is an obligation that I go to his party. I do not discharge that obligation by sending someone else. Likewise, if I promise that I will baby-sit your children, the obligation I have undertaken is that I baby-sit, not that a baby-sitter of some sort is provided. To the degree that obligations and rights are reciprocal, this distinction in agent-relative and agent-neutral obligations brings with it a distinction in agent-relative and agent-neutral rights. For instance, you have an agent-relative right that I baby-sit if I have promised as much.

What is obligatory is what one must do. A citizen has an obligation to obey the law, and so must obey the law; it is obligatory for a Boy Scout to keep himself physically strong, thus he must do so; parents are under an obligation and so must care for their children. Because of this, deontic classifications have been treated as modal notionsas what it is normatively necessary, possible, or impossible to do. Moreover, these modalities are often characterized much like causation and other kinds of necessity, as relations grounded in the governance of laws. Heat must boil water because there is a natural law governing these events; likewise, a Boy Scout must keep himself physically strong because there is a Scouting law governing his actions. Thus, an action is obligatory when a normative law or rule makes it normatively necessary, permissible when a normative law makes it normatively possible, and so on. The differences between moral, legal, etiquette, and club obligations can thus be made out as differences in the sets of normative rules or laws grounding the modal categorization. For instance, a club obligation is an action made necessary by the rules of the club.

An obligation is thus typically held to be an action that is normatively necessary according to some normative rule or law. A normative law, however, does not necessitate one's action, in the way that the law of gravitation makes a person stay on or near the surface of the earth. The laws of a state, club, or morality necessitate one's action not as nature or logic makes things necessary, because it is logically and naturally possible for a person not to act as these laws direct. What is normatively necessary is both logically and naturally not necessary, even if both logically and naturally possible.

For any deontic realm, there will be obligations within or defined by that realm, and there may also be obligations not defined by that realm, but whose performance is regarding the obligations within that realmseparate obligations to fulfill the obligations laid down by that deontic realm (Green, 1988). For instance, legal systems define certain legal obligations, such as the obligation not to exceed a certain speed on a given road. These are obligations within the law. Yet a club, such as the Boy Scouts, may define certain obligations regarding those obligations created within the law. Hence, one obligation of the Boy Scouts is never to fail in one's legal or moral obligations. This is an obligation within one deontic realm, the Boy Scouts, regarding the obligations within a distinct deontic realm, the law. In general, if there is an obligation regarding a given deontic realm (i.e., an obligation to fulfill the obligations laid down by a club, a state, or etiquette), then there must be some second deontic realm independent of it within which the obligation regarding that realm exists. One of the most important kinds of obligation regarding a deontic realm is the moral obligation to conform to legal obligations, often termed political obligation.

Normative laws can make one's actions necessary in a variety of ways. One way in which they might do this is if the laws are created as means to ends that one has. In order to vote, one must register; in order to get badges in the Boy Scouts, one must keep oneself physically strong; and so on. This can be called instrumental necessity. Many have thought that the necessity of any obligation must be instrumental. The laws of a state, for instance, would generate obligations for a given person when and only when those laws necessary are necessary for her security and the avoidance of sanctions for disobedience.

Most philosophers, however, have thought instrumental necessity is neither necessary nor sufficient for deontic necessity. It is not sufficient because a law backed up by sanctions alone seems not to be an obligation but rather extortion. The law must at least be in some sense a legitimate law of that deontic realm. Following the legal philosopher John Austin, a mechanism to establish the legitimacy of a normative law or rule can be called a pedigree. Systems of normative rules or laws require a pedigree that establishes the legitimacy of those laws or rules in creating a genuine obligation.

Instrumental necessity is not necessary for deontic necessity either. For instance, according to the rules of chess, it is necessary that the bishop stay on his color; this is a normative necessity arising from a rule of chess. But that rule is not backed up by some clause such as "in order to avoid such and such penalty." The rules of chess are in this sense "categorically" necessary. What is required for deontic necessity are laws that are nonoptional rules of behavior, and that at a minimum have a pedigree that makes them legitimate rules of the system.

Different deontic realms can have different pedigrees, and philosophers have offered different pedigrees for some deontic realms. For instance, philosophers such as St. Thomas Aquinas tied the legitimacy of a state's laws to divine pedigree. Genuine obligations, both within and to the law, arise only from demands conforming to laws God laid down for our nature when he created us. Hence, genuine legal obligations arise only from laws that comport with this natural law. And the moral obligation to obey the law is grounded in our obligation to obey God. The view that the legitimacy of law arises from acts of will, or "voluntarism," underwent a transformation as the vision of the universe grounded in God's will receded (for recent accounts of the history of modern thought about obligation, see Darwell, 1995, and Schneewind, 1998). Human acts of willacts of choice, consent, agreement, promisecame to take the place of God's will as a source of authority. Thomas Hobbes and John Locke, for instance, rejected Thomas's view that each person's good naturally comports with the good of others. Although we are naturally entitled to seek our own good, each person's good is at odds with that of others. This conflict inevitably leads to a devastating loss for all as everyone tries to secure their own good at the cost of others. It is only by leaving this natural state that all can secure their good. Each person's natural authority over himself is transferred to the sovereign or the community, which then comes to possess an authority to enact and enforce laws obligating them. And our obligation to obey those laws is based on something like a promise we have made.

Some version of the law-based source of obligation and some version of voluntarism as a source of the legitimacy of those laws and the obligation to obey has held a dominant position among philosophers since the modern era began. Nevertheless, many have defended nonvoluntarist positions and/or have rejected the model of obligations as actions made necessary by a law. Some, for instance, hold that obligations are a special kind of reason that make actions necessary. Hence, the obligation to obey the law, for instance, is a reason that necessitates obeying it. Among voluntarism's important detractors was David Hume, who had misgivings both about the law-based analysis of obligation and about voluntarism as the required pedigree. Hume argued that consent "has very seldom had place in any degree, and never almost in its full extent" (II.XII. 20). We are born into or find ourselves with obligations. Obligations that we have because of our consent, such as promises, are few and far between. Hume's own view of obligation was complex and hard to deem entirely consistent. Nevertheless, the gist of his view was that deontic necessity should be explained in subjective terms: When I judge that someone has an obligation to perform some action, I judge that there is a admirable motive impelling her to do it. The motive might be unreflective and natural, as is the love of children. Or it may arise from reflection on the advantages of various institutions, such as property or promising. Such a motive gains legitimacy through my approval of it from an impartial point of view.

John Stuart Mill followed the spirit of this pattern of analysis, but focused on external actions rather than internal motives. His still influential account holds that an action is obligatory just in case failure to perform it justifies internal or external sanctions, "if not by law, by the opinion of his fellow creatures; if not by opinion, by the reproaches of his own conscience" (pp. 4849). The pedigree granting authority to such internal or external punishments in the case of moral and legal obligations is general happiness. As David Lyons (1977) has argued, however, Mill's analysis in terms of justifiably sanctionable behavior is itself quite separate from his view of what justifies such sanctions, namely, the general happiness. Indeed, anarchists argue for a given analysis of political obligation but then deny that any such thing exists on the grounds that no legitimacy can be given for it (see, e.g., Simmons, 1979; Wolff, 1998).

Most philosophical positions separate the legitimacy or authority of a law laying down obligations (moral or legal) from the reason to comply. Whether a rule or law in some deontic realm is valid is one thing; whether a person has reason to comply with its obligations is quite another. The most famous attempt to unify the legitimacy and reason to comply with moral obligations was that of Immanuel Kant. Kant's insight was to view moral obligations as stemming from laws that each person imposes on himself rather than from laws whose origin is external to the agent. In particular, moral laws are requirements stemming from deep insidefrom a person's very capacity to act and choose on the basis of reason itself. If the source of a law was the moral agent himself, that is, if it were created and enacted by the agent's own rational will, then its authority would come from the agent himself, namely, the authority of his own rational will over his actions. Kant referred to this as the "autonomy" of a rational will. Moral obligations, in his view, stem from the demands of our own reason, and it is in virtue of this source that we have reason to comply.

Legal and Moral Obligations

The two most salient deontic realms are law and morality. But how are legal and moral obligations related?

Positivism is the doctrine that our legal and moral obligations are quite distinct, that what the law is is a separate issue from what it ought to be. In the form originally propounded by Jeremy Bentham and Austin, legal obligations are generated by commands of the sovereign, or that entity whom society is in the habit of obeying, who is not in the habit of obeying anyone else, and who has the power to sanction noncompliance. H. L. A. Hart showed that this form of positivism is subject to fatal objections. It can account for neither the continuity of legal authority across sovereigns nor the persistence of legal obligation after a given sovereign is gone. Moreover, he noted that it assumes that normative necessity must be instrumental necessity, which, as discussed above, is a mistake. What is needed are nonoptional rules, and sanctions are neither necessary nor sufficient for these (such as in the chess example). Part of the problem, Hart thought, was that Austin used criminal law, in which the law is a barrier to doing certain things, as his model for the whole of the law. Civil law (such as the law of contracts), in which law is a solution for various problems that would otherwise exist, is a much better model.

The law, Hart argued, is "a union of primary and secondary rules" (1994, p. 107). Primary rules direct each how to act ("don't eat shellfish," "no one may sit higher than the king," and so on). These rules impose genuine obligations, but not in the way that Austin thought. For Austin, rules are little more than means by which one can predict when the state will harm you. To see a rule in this way is to take an "external" view of it: conforming to the rules has no part in defining one's membership in the society. The first step in having a legal system is to have a system of rules that most take an internal view of, or see as standards of criticism and justification of one's behavior.

Hart argued that problems will inevitably arise in a system composed only of primary rules. First, in such a system, there will be uncertainty about whether a rule exists covering many situations and what to do when rules conflict. Second, the system will be too rigid to deal with changing circumstances. How will new rules come into and go out of existence? Third, the system will be inefficient in enforcing the rules and determining whether they apply in any case. What is required is a system of secondary rules, or rules concerning how to determine, introduce, abolish, change, and apply primary rules. Most importantly, what is required are rules of recognition that identify those features in virtue of which a rule is a rule of the group, to be supported by social pressures of various sorts. Rules of recognition are the sorts of rules that define lawmaking in U.S. state and federal legislatures. Thus, a rule exists as a rule in some system if its pedigree can be traced to rules of recognition defining legality for that system. Notice that, in contrast to Austin's view, rules can exist even if nobody ever obeys them. As long as a rule is enacted in the right rule-defining and -creating way, it exists. Hart insisted, however, that the rule of recognition itself need not be backed in any sense by any standard of authority, legal or moral. A rule of recognition exists in the sense of an "external statement of fact," that is, if it is generally not disregarded in defining and creating law.

Positivism's stark separation of legal and moral obligation has been challenged most forcefully by Lon L. Fuller and Ronald Dworkin. Fuller argued that if a given system of directives is immoral in a formal sense, then it will fail to be a legal system because it will fail to be a genuine system of rules. A system of directives is arbitrary if it does not conform to principles such as treating like cases alike, making its directives public, or not introducing directives after the fact. And an arbitrary system is not a system of rules. Moreover, a system possessing precisely these nonarbitrary features is also considered to be formally just. Thus, a system of directives that is not formally just is not a system of rules. If legal systems are systems of rules, then it follows that a formally unjust system of directives is not a legal system at all and does not generate legal obligations.

Dworkin's view challenges Hart's positivism by arguing that the law requires more than merely formally moral features. He argues that the actual practice of judges shows that legal systems contain elements from the moral traditions within which they arise and to which a judge's decisions must appeal to be valid. In cases that are not clearly covered by an existing law, judges in his view actually legislate, reaching outside of the law to make laws on the basis of good social policy. Dworkin argued that this does not match either actual or good judicial practice. Legal systems are composed of more than rules. They include principles invoking moral rights and obligations that judges are bound by in deciding cases. Indeed, what litigants are typically claiming is that some principle protecting a right is on their side. For Dworkin, there is always a determinate answer to the question of who has a right. Thus, there is always a determinate solution to legal conflicts to which litigants have a right and the judge is bound to find and deliver. Dworkin's own account of the pedigree of law therefore requires invoking moral principles and so implies that judges do not have discretion to create legal obligations as required by Hart's account. They must find the answer to which litigant's rights to protect, and not by intuition, but by articulating and defending a view of rights. Thus, for Dworkin, there is no sharp separation of legal and moral obligations.

Obligations, Roles, and Identities

The problem of political obligation is the problem of establishing an obligation within the moral deontic realm regarding the legal deontic realma moral obligation to obey the law, for instance. Many offer the voluntarist account, that the moral obligation is based on what is in effect a promise. Others think that moral obligations, and a fortiori political obligation, are all tied to promoting the overall good. Still others follow Socrates in thinking we owe an obligation of gratitude to the state for preventing harms and facilitating our good. Some have argued, however, that the whole issue is illusory because "it is part of the concept, the meaning of 'law,' that those to whom it is applicable are obligated to obey it" (Pitkin, p. 214). "U.S. citizen" means "person obligated to comply with U.S. laws." Obligations are in effect parts of our ordinary concepts defining our positions and roles. The seemingly deep question of whether a U.S. citizen is "really" obligated to follow U.S. laws either betrays a confusion about what "U.S. citizen" means or takes the language "on holiday"that is, uses terms such as obligation and law outside of the contexts in which they have a meaning.

In the early twenty-first century, this conceptual argument has few adherents on the grounds that it does not dissolve the problem so much as relocate it (see, e.g., Pateman, 1979; Simmons, 1996). Suppose "citizen" does just mean "someone with a genuine obligation to conform to the law." Then we may legitimately ask, is anyone genuinely a citizen in this sense? Clearly, the selfsame problem has returned dressed in new clothing. Many, however, agree with the view that obligations come with one's social roles and positions. So although the connection between role and obligation is not analytic, it is still true in a deeper substantive sense that to occupy many roles means having certain obligations. The origins of the position are in Georg Wilhelm Friedrich Hegel, and a version of it was defended in F. H. Bradley's famous essay, "My Station and Its Duties." It can be found most prominently in "communitarian" views of such late twentieth-century figures as John Charvet, Margaret Gilbert, Michael Hardimon, and John Horton.

The basic outline of the idea is as follows: the conception of the bare presocial individual who voluntarily takes on various obligations and agreements is illusory, an abstraction. A person just is a collection of social roles, a nexus of connections to other roles in a social fabric, very few of which are voluntarily assumed, and none are in any deep sense voluntary. When you tell someone who you are, you tell them about the collection of positions you occupy in a variety of social structures and institutionsa parent, an American, a teacher, a lawyer, an Oregonian, a writer. Your social identity may include your gender, race, and sexual preference. If each person is made up to a significant degree or other by these roles, then we are deeply identified with them, in the sense that we are attached to these positions as "who we are." Each of these roles comes with a set of obligations: To be a parent is to be someone genuinely obligated to care for her child, to be a teacher is to be someone genuinely obligated to instruct students, and so on. The view is thus not that the meaning of the word teacher is "someone obligated to instruct," but that what it is to actually occupy this position is to have such a genuine obligation.

This viewpoint has come to enjoy wide acceptance. It faces serious difficulties, however, not the least of which is an analog of the question facing the conceptual argument. For even if to have a certain obligation just is to occupy a certain role, there seems to be a meaningful question about the normative status of that role and the practices that create ita question of whether one ought to occupy that role, and moreover whether its obligations are genuinely binding. A defender of such obligations has to deny that there is any question of what one is genuinely obligated to do beyond what is laid down by one's social positions. The question "Ought I occupy this role and take on these requirements?" can be understood only from the perspective of some other role and its requirements. It asks only which social position or role should win out when there is a conflict. No single distinctive question about what one ought or ought not to do can be asked of social positions and their directives in general, because there is no single distinctive position or role that every person has in common with every other person.

In her 1996 book, The Sources of Normativity, Christine M. Korsgaard applied a similar strategy to the problem of moral obligation. In her view, this is a requirement stemming from one's "practical identity"an identity that is constituted by ongoing commitments to act in various ways in various circumstances. Her insight is that the power and legitimacy of obligations are tied to a sense of one's own identities. As mentioned earlier, most of us think that there are some actions about which we say "I would rather die than do that"that the necessity of some moral obligations is sufficient to put the acceptance of death on the table as an option. Korsgaard takes this talk seriously. If death is the loss of identity, the necessity of obligation comes from the threat of this loss. There are actions one would rather die than perform, or at least things the doing of which would be as good as dying. But combining the idea that death is a loss of identity with the idea that everyone has a multiplicity of identities tied to various positions and roles yields the idea that we might die as an F, where F names some role or position we occupy. Thus, to be a parent requires one to pursue the care of one's child. To stop this pursuit just is to give up that practical identity (insofar as this is a "person who cares for her child"), and hence to die as a parent. The necessity of parental obligation is thus tied to the persistence of one's identity as a parent. Where Korsgaard differs from the neo-Hegelian turn discussed above is that she holds that some identities are not merely social roles. In particular, our deepest identityan identity it is impossible for us rationally to lose or throw offis our identity as a reflective rational agent. This identity, she argues, is constituted by a requirement to respect this reflective agency in oneself and others. Failures of respect are in this way moral deaths, ways of giving up one's identity as a rational agent. This, she contends, explains the special grip or authority of moral obligation.

Agent-Relative Obligations

Much debate in late twentieth-century moral philosophy has been over how deep the distinction between agent-relative and agent-neutral obligations goes and whether the existence of agent-relative obligations is compatible with utilitarian moral theories. Recall that agent-relative obligations seem to have a special attachment to the person whom they bind. This is particularly the case regarding moral obligations: I see children who need caring for and can with no cost to myself care for one but not all. I have a moral obligation to care for one, then, but it does not seem to matter which. Indeed, everything else being equal, any other person in my place would have this obligation too. By contrast, suppose one of the children is my own son. It seems that I ought to care for my son over the other children, that it now matters morally which one I care for and that I do the caring. This is an agent-relative obligation: I have an obligation that I care for my son. The puzzle is that every child is equally valuable in objective terms; my son's care has no more and no less intrinsic value than the care of anyone else's child. Of course, he is more valuable to me, but that is not an objective measure of his value. Further, it would be abominable for me to care for my own child, but justify it by saying "I can't care for all children, so I flipped a coin and my son won." I seem to have an obligation to him, and he has a claim on my care that no other person has. How is that possible if there is no more objective value in my son's care than in the care of any other child?

To take another example, we are morally obligated not to torture. But suppose you could reduce the number of torturings in the world by a few by torturing some one innocent person. It is very tempting to think that you still have an obligation not to torture that person, even if by doing so you could bring about the reduction in torturings. You seem to have here an agent-relative obligation that you should not torture, rather than simply an agent-neutral obligation to prevent torturings. How is this possible? Surely if one torturing is evil, two are more evil, three even more so, and so on. Surely you should bring about as little evil as possible in the world. Moreover, if we increase the number of torturings you could prevent, there will be some number at which everyone will relent and say you ought to torture to prevent other torturings. So how could it be wrong to prevent more of the very same ills that one thinks one should bring about oneself, and only in some cases but not others? Much late twentieth-century work on obligation has focused on just this question.

Utilitarianism has been most often associated with the view that there are no genuinely agent-relative obligations, that all of our obligations are agent-neutral. Our fundamental obligation is always to bring about the better state of affairs. This is indeed a very intuitive position: How could it ever be impermissible to bring about the most good? Shouldn't one always do this? Some, such as Samuel Scheffler (1994), have argued that agent-relative permissions can be defended, but not agent-relative obligations. That is, we can be permitted, but not obligated, to tell the truth even when our lying would bring about more truth-telling. What justifies a permission here for Scheffler is the agent's need to preserve his integrity (or, for Thomas Nagel, his autonomy) as a moral agent. Others have taken a stronger position that there are genuine agent-relative obligations. For example, you have an obligation not to torture even if by torturing you would bring about fewer torturings overall. Nagel argues that such an obligation is justified on the grounds that one must never be led by evil. Whether these or related arguments will ultimately prove successful is an ongoing concern of moral philosophers.

See also Altruism ; Law ; Philosophy, Moral ; Virtue Ethics .

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Robert N. Johnson

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Duty

Duty

Legal duties

Moral duties

Duty in other social contexts

BIBLIOGRAPHY

”Duty is a thing which may be exacted from a person, as one exacts a debt. Unless we think that it may be exacted from him, we do not call it his duty” (Mill [1861] 1957, p. 60). The word “duty is derived through the French devoir from Latin debitum, which means what is owed by or due from one person to another, and as Mill saw, analogy with a debt is still a most important feature in the various legal, moral, and other social phenomena which are referred to as duties. Yet not withstanding this apparently unifying analogy, there has been much dispute as to whether or not there really is a single generic concept of duty with specific applications in the different fields of law, morality, and so on, and also much controversy over the analysis of the notion within these fields. Since these issues and other problematic features of the notion of duty have received the clearest and most detailed attention from legal theorists, legal duties are first considered here.

Legal duties

Whenever legal rules require or prohibit certain conduct, the notion of duty has application. The plainest examples of such requirements and prohibitions are the duties created by the criminal law when it provides for the punishment of certain forms of conduct. The duties it thus creates may be either negative (e.g., to abstain from murder or theft) or positive (e.g., to report for military service or pay taxes). Most legal theorists, however, extend the notion of duty to cases where the law provides for compensation to be paid to those who have suffered damage through the failure of another either to perform a contract or to abstain from any of the variety of civil (as distinguished from criminal) wrongs, which are called torts. Here conventional jurisprudence distinguishes the primary duty (e.g., to perform the contract or to abstain from the tort) from the secondary or “sanctioning” duty to pay compensation for the breach of the primary duty.

Though the word “duty” refers to a constantly recurring situation created by the existence of legal rules, it is in fact rarely used in the authoritative text of legal codes or statutes. Thus, English and American criminal codes and statutes create duties, not by the use of the expression “duty,” but by such formulas as “whosoever shall … shall be guilty of an offense …” or “whosoever shall … shall be liable to a penalty of… .” Similar formulas avoiding the equivalent of the word “duty” are commonly used in Continental legal codes. “Duty” therefore is primarily part of the language used in the exposition and theoretical discussion of the law to designate a specific type of effect or situation created by the existence of legal rules. In the wording of these rules, however, the expression “duty” does not usually appear.

Obligation and duty

By jurists of some systems, mainly those descended from Roman law, a distinction is drawn between obligation and duty, the former being reserved for cases such as those where a determinate person is bound as a result of some past transaction or relationship to pay or render some service to another determinate individual who has a corresponding legal right to such payment or service. Obligations are typically “incurred” or created by a man for himself, whereas duties “arise” from his position under the law without any act on his part. Typical examples of obligation in this sense are cases where a person is bound by his contract to pay or render services to another or is bound as the result of some tort to pay compensation to another. Some jurists distinguish between the requirements of the criminal law or the primary duties arising under the law of tort and obligations, since the first two cannot be incurred by the person under the duty. Though there are still traces of this distinction in Anglo-American jurisprudence, it has very largely disappeared and is generally ignored in philosophical or jurisprudential discussions concerning the general nature of law. It is however still of importance in the classification of other nonlegal social norms.

The notion of duty is generally considered by jurists to be both essential and fundamental. Some (e.g., Austin and Kelsen) treat it as essential in a strong sense of insisting that every legal rule creates a duty; other jurists insist only that every legal system includes some rules which create duties. Duty can be considered fundamental as well as essential, because other notions, such as legal rights, powers, crimes, and torts, require in their analysis the use of the notion of duty. Thus, to have a legal right is (in one important sense) to be free from some specific duty to act in certain ways or (in a second important sense) to have the option of insisting on the performance by another person of his duty or releasing him from it.

Some jurists (e.g., Oliver Wendell Holmes) have looked upon the idea of duty as a potent source of confusion tending to obscure the radical differences between the requirements of legal and moral rules. Holmes at one time proposed to dispense with “all talk of duties and rights” and to substitute for it simply “a statement of the circumstances in which the public force will be brought to bear upon a man through the Courts” (Holmes & Pollock [1874–1932] 1961, p. 307). Many legal theorists of the positivist tradition (e.g., Bentham and Austin as well as Holmes himself) have put forward similar views in the form of analysis of the notion of duty rather than a proposal to dispense with it. Bentham ([1789] 1948; [1843] 1962) defined legal obligation or duty to do or abstain from some action as a chance or likelihood of suffering at the hands of officials in the event of failing to do so. Holmes similarly defined a statement of duty as a prophecy that if a man does certain things, he will be subject to disagreeable consequences by way of imprisonment or compulsory payment of money ([1897] 1952, p. 173).

The predictive analysis of duty

The form of analysis favored by Holmes and Bentham has commended itself to many jurists and some sociologists. It is, however, open to the following objections:

(1) The statement that a man has a legal duty to do a particular action may without any contradiction or absurdity be conjoined with the statement that he is not likely to suffer at the hands of officials in the event of his failing to do the action. Indeed there will be frequent occasions—especially in a system such as English law, where there are no minimum penalties but only prescribed maxima—for asserting just this conjunction of statements. This is so when, for example, it is known or thought likely that someone who proposes to disobey the criminal law will not be caught or if caught will not be convicted (perhaps because of lack of relevant evidence) or if convicted will not in fact be punished (perhaps because of the clemency or corruption of the court).

(2) Similarly, there is no redundancy in conjoining with the statement that a man has a legal duty to do a particular action the statement that he is likely to suffer at the hands of officials in the event of his failing to do it.

(3) If it is allowed that a statement that a man has a legal duty to do a particular action may be assessed as either true or false, we can summarize the above two criticisms by saying that Bentham’s analysis fails to state even a necessary condition for the truth of such a statement. But the following considerations show that it also fails to state a sufficient condition for the truth of such a statement. This is so because the notion “of suffering at the hands of officials in the event of doing (or failing to do) a particular action” has no specific connection with the idea of duty unless it is conceived or interpreted in a restricted way. Such suffering is wholly irrelevant to the idea of duty unless the suffering is conceived of as punishment or compulsory compensation supporting or securing conformity with legal standards of conduct, that is, as a means for discouraging or preventing actions of a certain sort or restoring (so far as compensation can) the status quo disturbed by such actions. Hence suffering, in the form of compulsory payment of money, though provided for by legal rule, is irrelevant to the idea of legal duty if it is interpreted as a tax on certain conduct (and not as a punishment by way of fine or as compensation for injury done) and does not render abstention from that conduct a duty.

The normative analysis of duty

The principal rival to the predictive analysis may be termed normative. This approach, without identifying moral and legal duties by insisting on any common content, stresses certain formal features which these duties share as forms of rule-guided conduct involving the idea of what “ought to be done.” From this point of view an act is called a legal duty not merely because failure to do it renders likely sanctions or suffering at the hands of officials but because, owing to the existence of the relevant rules of law, it is also an act which like a debt may be correctly or justifiably demanded of those concerned as something which ought to be done. Similarly, failure to do the act required is significant because punishment or compulsory compensation is properly applicable or justified according to the legal rule even if predictions that it will in fact follow are falsified. The normative analysis therefore reproduces the point of view of those who, though they may not regard the law as the moral or final arbiter of conduct, in general accept the existence of legal rules as a guide to conduct and as legally justifying demands for conformity, punishment, or enforced compensation. Attention to these normative features of the idea of legal duty seems essential for understanding the way in which law in fact operates in a modern legal system.

The predictive analysis of duty has found favor among positivist writers for a variety of theoretical and practical reasons. On the one hand, it has seemed to free the idea of legal duty both from metaphysical obscurities and irrelevant associations with morals and, on the other hand, to provide a realistic guide to life under law. For it isolates what for some men is the only important fact about the operation of a legal system and what for all men is always one important fact: the occasions and ways in which the law may work adversely to them. This is of paramount importance not only to the malefactor—”if you want to know the law and nothing else, you must look at it as a bad man [would]” (Holmes [1897] 1952, p. 171)—but also to the utilitarian critic and reformer of the law who is concerned to balance the costs of the law in terms of human suffering against the benefits which it brings. A reconciliation between the two types of theory is, however, possible, though exclusive correctness has often been attributed to one or the other. The normative account might be said to give correctly the standard meaning of the statement that a person has a legal duty to do a certain action, and the predictive theory may be taken as stating the point or purpose of making a statement of duty (i.e., to warn that suffering is likely to follow upon disobedience). This distinction between the meaning of a statement and what is implied by the making of it in different contexts is of general importance in legal philosophy.

Duties and sanctions

Many, perhaps most, legal theorists have argued that legal and moral duties can only be distinguished by the provision made by legal rules for coercive sanctions. However, this argument seems mistaken, since there are other important features which may be used to distinguish between them. It is conceptually impossible to hold (1) that moral duties may be extinguished by legislative repeal or fiat, as legal duties can, (2) that moral duties may relate to activities which are not considered in any way important as some legal duties may be, and (3) that general moral duties could be expressly created simply for the purpose of advancing some specific objective or social aim as general legal duties frequently are. Furthermore, lawyers and jurists some-times use the expression “duty” of actions where no sanction is provided. These considerations suggest that it is mistaken to define the idea of duty in terms of coercive sanctions but that a wider notion of social demand, pressure for conformity, and the liability of the lawbreaker to different forms of adverse criticism and treatment should be used instead. The coercive sanctions of the law may then be more illuminatingly regarded as the characteristic, but not invariant, legal form of this wider notion.

Moral duties

In considering moral duties it is important to distinguish the accepted or conventional positive morality of an actual social group from the moral principles and ideals which may govern an individual’s life but which do not exist as a shared code of a social group. The duties of positive morality are those forms of conduct (negative or positive) which like a debt are, according to the rules of the accepted moral code, held to be justifiably exacted or demanded from individuals. Though organized coercive sanctions may not be used to enforce conformity or to punish deviation, various distinctively moral forms of pressure are available. In the case of actual or threatened breach of the moral code, appeal will usually be made to the sense of respect for the rules as important in themselves, and reminders are given of the moral character of the action. These reminders assume that respect for the rules is shared by those addressed, and it is also assumed that they will excite in those addressed a sense of shame or guilt. Deviations from the positive moral code may lead to many different forms of hostile reaction, ranging from expressions of blame and contempt to severance of social relations. But reminders of what the rules demand and appeals to “conscience” and reliance on the operation of a sense of guilt and shame are the characteristic forms of pressure used in the support of conventional moral duties.

In spite of the differences noted above between moral and legal duties, there are still certain striking similarities between them. Both are supported by serious social pressure for conformity, though this pressure characteristically takes different forms. Compliance with both legal and moral duties is generally taken as a matter of course and not as a matter for praise except when marked by exceptional difficulties or efforts, since performance is thought of as a minimum contribution to social life. Further, legal and moral duties relate to actions the opportunities for which constantly recur throughout life and not only on special occasions. Although legal rules and conventional moralities may include much that is peculiar to different societies, both make demands which must obviously be satisfied if any considerable number of human beings are to succeed in living together. Hence in almost all societies where a legal system can be distinguished from a moral code, there are both legal and moral duties to abstain from violence and theft and to show some minimum forms of honesty and truthfulness in social intercourse.

When we turn from the positive morality of social groups to morality in the sense of the rules, or principles, or ideals of individuals to which they subscribe on religious or theoretical grounds, the scope of the notion of duty appears a matter of more philosophical controversy. Some philosophers extend it so as to include not only the minimum demands of an individual’s morality, which may be formulated in general rules, but any action which for any moral reason “ought” to be done. Thus extended, it includes both the action which is held to be “the best on the whole” in cases of a conflict of duties or otherwise problematic situations and also works of supererogation or the satisfaction of ideals (e.g., of heroism or saintliness). This extension of the idea of duty is no doubt guided by the analogy between legal punishment and other forms of social pressure and the experience of guilt and remorse which follow on deviation from individual morality. This extension seems confusing, since the minimum demands of a morality that can be formulated in general rules referring to constantly recurring situations in daily life must always present important features different from the requirements of individual morality.

Duty in other social contexts

Legal and moral rules are of course not an exhaustive dichotomy, and the notion of duty also refers to the requirements of rules which fall into neither of these two categories (e.g., the rules of voluntary associations like clubs or business organizations, rules governing activities for which there are only intermittent opportunities such as ceremonies, or activities like games which are held to be voluntary and from which withdrawal is permitted).

Broadly speaking, the notion of duty or, sometimes, obligation may be used where there is a relatively enduring office or social role in which the occupant performs a specific function calling for specific forms of behavior. Thus, it is common to speak of the duties of a host or of the captain of a team or the chairman of a committee, where rules which are neither legal nor moral specify the forms of behavior required. Sometimes however such duties attached to roles or offices may be supported by specifically moral pressure, as in the case of the duties of a father or husband. In all such cases the analogy of a debt is still present, for the duties attached to such roles or offices are those actions which it is held may be demanded from the occupant, even though neither legal sanctions nor moral pressure is available to support the demand.

Finally, it is salutary to remember that even in these wider social contexts there is no simple equivalence between the notion of duty and of what ought to be done according to social rules. This is evident from the fact that there are many rules, such as those of etiquette or correct speech, where it would be misleading to refer to duties. In such cases the correct action or mode of speech is not conceived of as something which may be peremptorily demanded, no doubt because of the lesser importance to others or to social life of the activities in question.

H. L. A. Hart

[See alsoPolitical Theory; Responsibility; and the biographies ofAustin; Bentham; Holmes; Kelsen. A guide to other relevant material may be found underLaw.]

BIBLIOGRAPHY

Bentham, Jeremy (1789) 1948 An Introduction to the Principles of Morals and Legislation. New ed., corrected by the author. New York: Hafner.

Bentham, Jeremy (1843) 1962 Essay on Logic. Volume 8, pages 213–293 in Jeremy Bentham, The Works of Jeremy Bentham. Edited by John Bowring. New York: Russell. → First published posthumously.

Dias, R. W. M. 1959 The Unenforceable Duty. Tulane Law Review 33:473–490.

Holmes, Oliver Wendell (1897) 1952 The Path of the Law. Pages 167–202 in Oliver Wendell Holmes, Collected Legal Papers. New York: Smith.

Holmes, Oliver Wendell; and Pollock, Frederick (1874–1932) 1961 Holmes-Pollock Letters: The Correspondence of Mr. Justice Holmes and Sir Frederick Pollock, 1874–1932. 2d ed., 2 vols. Edited by Mark DeWolfe Howe. Cambridge, Mass.: Belknap Press.

Mill, John Stuart (1861) 1957 Utilitarianism. Indianapolis, Ind.: Bobbs-Merrill.

Weber, Max (1922) 1956 Wirtschaft und Gesellschaft: Grundriss der verstehenden Soziologie. 4th ed., 2 vols. Tubingen (Germany): Mohr.

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Obligation

OBLIGATION

A generic term for any type of legal duty or liability.

In its original sense, the term obligation was very technical in nature and applied to the responsibility to pay money owed on certain written documents that were executed under seal. Currently obligation is used in reference to anything that an individual is required to do because of a promise, vow, oath, contract, or law. It refers to a legal or moral duty that an individual can be forced to perform or penalized for neglecting to perform.

An absolute obligation is one for which no legal alternative exists since it is an unconditional duty.

A contractual obligation arises as a result of an enforceable promise, agreement, or contract.

An express obligation is spelled out in direct and actual terms, and an implied obligation is inferred indirectly from the surrounding circumstances or from the actions of the individuals involved.

A joint obligation is one that binds two or more people to fulfill whatever is required, and a several obligation requires each of two or more individuals to fulfill the obligation in its entirety by himself or herself.

A moral obligation is binding upon the conscience and is fair but is not necessarily enforceable in law.

A primary obligation is one that must be performed since it is the main purpose of the contract that contains it, whereas a secondary obligation is only incidental to another principal duty or arises only in the event that the main obligation cannot be fulfilled.

A penal obligation is a penalty, such as the obligation to pay extra money if the terms or conditions of an agreement cannot be satisfied.

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duty

du·ty / ˈd(y)oōtē/ • n. (pl. -ties) 1. a moral or legal obligation; a responsibility: it's my duty to uphold the law | she was determined to do her duty as a citizen | a strong sense of duty. ∎  [as adj.] (of a visit or other undertaking) done from a sense of moral obligation rather than for pleasure: a fifteen-minute duty visit. 2. (often duties) a task or action that someone is required to perform: the queen's official duties | your duties will include sweeping the switchboard | Juliet reported for duty. ∎  military service: combat duty in the army. ∎  [as adj.] (of a person) engaged in their regular work: a duty nurse. ∎  (also duties) performance of prescribed church services by a priest or minister: he was willing to take Sunday duties. 3. a payment due and enforced by law or custom, in particular: ∎  a payment levied on the import, export, manufacture, or sale of goods: a 6 percent duty on imports | goods subject to excise duty. 4. technical the measure of an engine's effectiveness in units of work done per unit of fuel. PHRASES: do duty as (or for) serve or act as a substitute for something else: her mug was doing duty as a wine glass. on (or off) duty engaged (or not engaged) in one's regular work: the doorman had gone off duty and the lobby was unattended.

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obligation

ob·li·ga·tion / ˌäbliˈgāshən/ • n. an act or course of action to which a person is morally or legally bound; a duty or commitment: he has enough cash to meet his present obligations | I have an obligation to look after her. ∎  the condition of being morally or legally bound to do something: they are under no obligation to stick to the scheme. ∎  a debt of gratitude for a service or favor: she didn't want to be under an obligation to him. ∎  Law a binding agreement committing a person to a payment or other action. ∎  Law a document containing a binding agreement; a written contract or bond. DERIVATIVES: ob·li·ga·tion·al / -shənl; -shnəl/ adj.

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Duty

DUTY

A legal obligation that entails mandatory conduct or performance. With respect to the laws relating tocustoms duties, a tax owed to the government for the import or export of goods.

A fiduciary, such as an executor or trustee, who occupies a position of confidence in relation to a third person, owes such person a duty to render services, provide care, or perform certain acts on his or her behalf.

In the context of negligence cases, a person has a duty to comport himself or herself in a particular manner with respect to another person.

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duty

duty conduct due to a superior XIII; obligation, function; †due charge or fee XIV; payment enforced or levied XV. — AN. deweté, dueté, f. du(e) DUE; see -TY 2.
Hence duteous, dutiful XVI, dutiable XVIII.

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duty

duty, in taxation: see tariff; excise taxes.

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duty

dutyalmighty, Aphrodite, Blighty, flighty, mighty, nightie, whitey •ninety • feisty •dotty, grotty, hottie, knotty, Lanzarote, Lottie, Pavarotti, potty, Scottie, snotty, spotty, totty, yachtie, zloty •lofty, softie •Solti • novelty •Brontë, démenti, Monte, Monty, Visconti •frosty •forty, haughty, naughty, pianoforte, rorty, shorty, sortie, sporty, UB40, warty •balti, faulty, salty •flaunty, jaunty •doughty, outie, pouty, snouty •bounty, county, Mountie •frowsty • viscounty •Capote, coatee, coyote, dhoti, floaty, goaty, oaty, peyote, roti, throaty •jolty •postie, toastie, toasty •hoity-toity • pointy •agouti, beauty, booty, cootie, cutie, Djibouti, duty, fluty, fruity, rooty, snooty, tutti-frutti

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