Duty
Duty
”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.