Duties, Obligations and Rights Jaap Hage jaap.hage@maastrichtuniversity.nl Draft version Abstract Three legal concepts take the central place in this article: duties, obligations and rights, and the main question of this article is what (legal) duties, obligations and rights are. However, these concepts can only be understood in their relations to other concepts such as ‘rule’, and ‘ought’. As a consequence, the discussion of duties, obligations and rights will often overflow in brief discussions of some other concepts. The topics of this article are more extensively addressed in Hage 2018a and this article follows and updates the analyses that are presented there. This article has three main sections, conveniently titled ‘Duties’ (section 3), ‘Obligations’(section 4) and ‘Rights’ (section 5). The arguments of these three sections presuppose a particular view of the nature of rules, and section 2 explains this view. Introduction Law is multi-faceted and in order to get a grip on it, it often pays to emphasize one of its many facets at the cost of others. In this paper, the emphasis will be on a small set of legal concepts which I will treat as building blocks of law. A good understanding of legal concepts is crucial for improved reasoning with existing law and for the creation of better future law. Before continuing, I need to say a little about concepts. The precise nature of concepts is debated (Margolis and Laurence 2021), but that does not matter for the present article. When I write about concepts, I mean the phenomena that match these concepts. When Ryle wrote The Concept of Mind (Ryle 1949), or when Hart wrote The Concept of Law (Hart 2012), these authors wrote about the mind and law, respectively. In a similar way, I will write about duties, obligations and rights in abstract, and present this as writing about three central legal concepts. Many legal concepts are defined explicitly. For instance, the Dutch Act on Traffic (Wegenverkeerswet 1994) starts in article 1 with a number of definitions of essential concepts, such as ‘road’, ‘motorized vehicle’, and ‘tenant of a motorized vehicle’. In such cases, knowledge of legal concepts typically boils down to knowledge of the legal rules that define them. However, some very basic concepts, including the ones with which this paper deals, are not defined by legal rules. Their nature is presupposed, and their use is taught in legal education. Three legal concepts take the central place in this article: duties, obligations and rights, and the main question of this article is what (legal) duties, obligations and rights are. However, these concepts can only be understood in their relations to other concepts such as ‘rule’, and ‘ought’. As a consequence, the discussion of duties, obligations and rights will often overflow in brief discussions of some other concepts. The topics of this article are more extensively addressed in Hage 2018a and this article follows and updates the analyses that are presented there. This article has three main sections, conveniently titled ‘Duties’ (section 3), ‘Obligations’(section 4) and ‘Rights’ (section 5). The arguments of these three sections presuppose a particular view of the nature of rules, and section 2 explains this view. To make the rather abstract discussions of duties, rights and obligations more concrete, I will use a running example about tort liability. The example case is the following: Jaap drives his car through the town of Lanaken when he is distracted by his young daughter on the back seat. He crashes on a car that belongs to Anouk, which was parked on the right side of the road. By doing so, Jaap causes €2000 damage to Anouk’s car. If Jaap’s behaviour is unlawful, he must compensate Anouk for the damage to her car. Rules Examples of rules It is sometimes thought that rules are about prescribing behaviour. Admittedly, mandatory rules do, in a sense, prescribe behaviour. However, many kinds of rules do not prescribe at all, and strictly speaking, even mandatory rules do not prescribe. Let us consider some examples of rules. 1. The moment that the President dies, the Vice-President becomes the new President. This is a rule about succession. It operates in time and attaches a new fact – the person who happened to be the Vice-President is the (new) President – to the occurrence of an event: the (old) President died. 2. Statutes are created by Parliament. This rules attributes the exclusive competence to create statutes to Parliament. In doing so, it attaches a fact – this entity has the exclusive competence to create statutes – to another fact: this entity is Parliament. 3. A bachelor is an unmarried man of marriageable age. This rule defines the meaning of a word, and at the same time conceptually connects two kinds of entities: bachelors and unmarried men of marriageable age. 4. If two or more parties conclude a valid contract, everything in the contract holds between the contract partners. This is a (strongly simplified) rule about the consequences of a contract. These consequences often involve mutual obligations, but the rule does not mention them explicitly. Neither does the rule mention duties or permissions. Therefore, we cannot say that it is a mandatory rule, even though its application will often lead to obligations. 5. Car drivers must stop at red traffic lights. This is a typical mandatory rule. It imposes a duty – to stop – on agents that belong to a particular category – car drivers. Notice that the duty itself, e.g. that Henry must stop at this red traffic light, is not a rule. The existence of this duty is a fact, described by a true statement. This fact is attached by the rule to other facts, namely that Henry is a car driver and that the traffic light before Henry is red. By attaching this fact to the other facts, the rule creates the duty. The duty prescribes behaviour, and – strictly speaking – the rule does not, or at most indirectly. What are rules? Although sometimes the application of a rule leads to a duty or an obligation, there is no inherent or conceptual relation between rules and the guidance of behaviour. There are different kinds of rules, but the common element which makes them all rules is not that they guide behaviour, but that they attach facts to other facts. Rules have the so-called ‘world-to-word direction of fit’. This expression was popularised by Searle (1979, 1-29), but I will use it in a way that is not completely identical to Searle’s use. If they are applied, the world comes to fit the content of the rule. For instance, application of the rule about the succession of the President makes the old Vice-President into the new President. Or, application of the rule that car drivers must halt at red traffic lights imposes the duty to halt on a car driver who approaches a red traffic light. Or, being an unmarried man of marriageable age makes it the case that a person is a bachelor. Based on their effects, it is possible to distinguish two main kinds of rules: dynamic rules and static rules. A dynamic rule attaches a new fact to the occurrence of an event, or takes an existing fact away, or modifies it. The rules (1) and (4) above are examples of dynamic rules. An example of a dynamic rule that takes a fact away would be the rule that a right of usufruct ends as soon as the right-holder passes away. A static rule attaches a fact to an already existing fact. The rules (2), (3) and (5) above are all static rules. It is possible to subdivide the category of static rules into counts-as rules and fact-to-fact rules. A counts-as rule makes that an entity of one kind is also an entity of another kind. Here I deviate from Searle (2010, p. 96-97), who seems to treat every constitutive rule as a counts as-rule. In my view, all rules are constitutive, even the duty-imposing ones, and only some of them are counts-as rules. For more explanation, see Hage 2018b. Rule 3 above is such a counts-as rule. An unmarried man of marriageable age counts as a bachelor. A fact-to-fact rule attaches a fact to some other fact. This category of static rules is exemplified by the rules (2) and (5) above. If an entity happens to be Parliament, it also has the competence to create statutes. Or, if an agent happens to be a car driver (and approaches a red traffic light) the agent has the duty to stop. Duties Analysis of duties Duties are a particular kind of relations between agents and action types. This brief characterization of duties deserves some explanation. The first thing to notice is that every duty has a duty-holder, and this duty-holder is an agent. An agent is an entity that can perform acts. The agent may be a person such as Jaap, an organisation such as the French state, a group such as a football team, or perhaps even an artificially intelligent entity such as a self-driving car. However, duties do not pertain to categories of entities, such as a duty for all car drivers. There may exist rules that impose duties on car drivers, such as for instance the rule that car drivers must drive on the right. This rule imposes individual duties to drive on the right on all individual car drivers, but does not create a single duty for car drivers as such. Duty-holders are always individuals, even if these individuals are groups or organizations. Duties come in two variants: duties to do and duties not to do (duties to refrain). Jaap has the duty to take care of his daughter; this is a duty to do, or – which is the same thing – a duty to perform. Jaap also has the duty not to damage somebody else’s property; this is a duty not to do, or – which is the same thing – a duty to refrain or a prohibition. Duties also come in two other variants, which are perpendicular to the duties to do and to refrain: duties to do something and duties to do something in a particular way. An example of the first is the duty to drive your car; and example of the second is the duty to drive on the right. These duties are independent from each other: for instance, it is possible to have the duty to drive on the right without also having a duty to drive. I will ignore duties to do something in a particular way in the rest of this article. Another characteristic of duties, which is sometimes overlooked, is that duties always refer to action types or ‘actions’. Action types must be distinguished from act tokens, or ‘acts’ (Quine 1987, p. 216-219). Acts are concrete events, linked to a particular place and time, that have actually taken place. Jaap damaging the car of Anouk counts in our present case is an act; damaging somebody else’s property is not a concrete event, and therefore not an act (but an action). The counts-as terminology used here indicates that acts do not occur with a label ‘act’ attached to them. Whether something is an act depends on attribution of the act-status to an event. This necessity of attribution is expressed by saying that an event ‘counts as’ an act. Duties fulfil two functions. Their first and primary function is to guide behaviour. Jaap’s duty to take care of his daughter has as its function to make Jaap take care of his daughter. The second function is as a standard by means of which acts that have already been performed can be evaluated. If an act violated a duty, this is a reason why the act was wrong, or – in the legal case – unlawful. Duties can only fulfil their primary function if they address actions, not acts. An act, as a concrete event, has by definition already taken place, and it is not possible to guide it anymore. Action guiding is possible with regard to acts that are to be performed in the future, and these acts can only be referred to by means of the type to which they belong. Jaap has (at least) two duties: not to damage somebody else’s property and to take care of his daughter, and both concern action types. Conflicts of duties As the running example illustrates, it is possible to have conflicting duties. Two duties conflict with each other if compliance with the one duty necessarily leads to non-compliance with the other. Let us assume, for the sake of argument, that Jaap can only take care of his daughter by paying insufficient attention to the traffic, which will lead to damaging Anouk’s car. The other way around, Jaap can only avoid damaging Anouk’s car by paying attention to the traffic and thereby not taking care of his daughter. This means that Jaap’s duty not to damage somebody else’s property and his duty to take care of his daughter conflict. Elsewhere (Hage 2017), I have dubbed the expression ‘compliance conflict’ for this type of conflict. Even if one of the two duties prevails over the other, this does not mean that the latter duty disappears. Complying with one duty means for Jaap violating the other duty. It is important in this connection to see the contrast with what Jaap ought to do. Let us assume that if Jaap cannot comply with both duties, he ought to comply with the duty that is the most important, however defined. And since this compliance means violation of the other duty, Jaap ought to violate this other duty. Suppose that, in the given circumstances, taking care of his daughter is more important than avoiding damage to somebody else’s car. In that case, Jaap ought to take care of his daughter and to damage the car. If Jaap took care of his daughter, he did what he ought to do. Notice, by the way, that even if Jaap ought to damage the car, he did not have a duty to do so. The argumentative step from the presence of a duty to what the duty holder ought to do is in principle possible, but the step from an ought to a corresponding duty is invalid . What an agent ought to do is based on balancing all the relevant reasons for and against performing some kind of action. It is not possible that an agent both ought to perform some action and at the same ought to refrain from performing it. It is possible to have conflicting duties and then these duties provide colliding contributory reasons with regard to an action type. In the running example, Jaap’s duties to take care of his daughter and to avoid harming somebody else’s property collide. and provide reasons against, respectively for paying sufficient attention to the traffic. An ought judgment is based on the balance of these reasons and the balance can only point in one direction: the action ought, or ought not, to be performed. It is possible that the balance of reasons ends in a draw and that the agent neither ought to perform an action nor ought to refrain from it. I will leave such details out of consideration here. Jaap’s behaviour was unlawful if Jaap did not do what he ought to have done. Jaap’s problem was that he had a conflict of duties and that he could not avoid violating at least one of them. However, this does not imply that Jaap had to act unlawfully. What is law or unlawful depend only indirectly on the duties that exist; directly, it depends on what ought to be done. The conflict of duties is in a sense resolved in the judgment on what Jaap ought to do. If Jaap ought to have left Anouk’s car undamaged, Jaap acted unlawfully. However, if Jaap ought to have taken care of his daughter, his behaviour was lawful, even though it violated a duty. If unlawfulness is a necessary condition for becoming liable for damages, it is possible that Jaap violated his duty to leave Anouk’s car undamaged and nevertheless does not have to compensate the damage. Such conflicts of duties are in law handled under the denominator of force majeure and force majeure may bring about that the violation of a duty is lawful. This outcome may strike some as undesirable. However, law has several ways to avoid this threatening injustice. The common solution is to introduce a stricter form of liability for car accidents that does not require unlawful behaviour. Another logical possibility is to make fault liability dependent on the violation of duties, rather than on unlawfulness. After all, although Jaap may not have acted unlawfully, he did violate a duty. I only mention these possibilities to illustrate the power of conceptual understanding. Sources of duties Most duties are the result of rule-application; they are attached by some rule to an existing fact situation. I discuss three examples: a. Judges have (a duty) to apply the law. Christina is a judge, and therefore Christina must apply the law. b. Traffic participants must halt if they approach a red traffic light. Gerald is a traffic participant and approaches a red traffic light. Therefore he incurs the duty to halt. c. Traffic participant must obey the commands of police officers who regulate the traffic. Louise participates in the traffic and a police officer commands her to turn around. Therefore, Louise incurs the duty to turn around. Let us assume that there is a rule that judges have a duty to apply the law. This rule imposes on individual judges a duty to apply the law. In doing so, the rule attaches (the existence of) a duty to the possession of a legal status. If somebody is a judge, the rule imposes on this person the duty to apply the law. The fact that somebody is a judge goes, because of this rule, together with the fact that this person has the duty to apply the law. The rule attaches one kind of fact – having the duty to apply the law – to another kind of fact – being a judge – and can for this reason be called a fact-to-fact rule. Because the attached fact is the existence of a duty, the rule is also a duty-imposing (mandatory) rule. To contrast this kind of duty-imposing rule to the dynamic rules of examples b and c, I want to emphasize that the rule does not react to the occurrence of some event. The rule deals with persons who are judges, not with the event of becoming a judge. Another interesting aspect of the rule is, finally, that the content of the resulting duty is to some extent open-ended. The judge has the duty to apply the law, but the law determines what precisely the judge must do. To the extent that the content of the law is fixed, the content of a judge’s duty is also fixed, but that content cannot be read off from the rule. Example b describes the effects of a dynamic rule with a fixed consequence. The rule imposes duties to halt on traffic participants, but these duties only enter into existence after the occurrence of an event: the traffic participant must approach a red traffic light. The precise content of the duty is determined by the rule. Dynamic rules by definition attach consequences to the occurrence of some event. In this case, the event is that a traffic participant approaches a red traffic light, and the rule attaches to this event the consequences that the traffic participant must halt. Example c deals with a situation that cannot easily be labelled. On one hand, the rule seems to impose a duty (to obey the commands of police officers) on traffic participants. From this perspective, the rule is similar to the rule of example a. On the other hand, the rule seems to attribute to police officers the competence to create duties for traffic participants. From this perspective, the rule is similar to the rule of example b, as the duties only enter into existence as a result of events. However, there is the distinguishing difference that the rule of example b imposes duties with a fixed content, while the rule of example c makes the duties dependent on decisions of police officers. The three examples illustrate that different kinds of rules can generate duties. It is worthwhile to point out a common aspect, however. It is only possible to obey these rules indirectly. The rules impose duties, and the duties can be obeyed. We can say that obeying a duty that was imposed by a rule is also obeying the duty-imposing rule, but that would identify obeyance to duty-imposing rules with obeyance of the imposed duties. More precise would be to say that only duties (and obligations) can be obeyed and that rules can only be followed – not obeyed – by recognising the duties and other legal consequences that they create. The consequences of unlawfulness If an agent violates a duty, this is a reason why the duty-violating act was unlawful. Suppose that Jaap’s behaviour, damaging Anouk’s car, was unlawful, what are the consequences? The answer is that it depends. Being unlawful is merely a legal status of an act, and as such does not have any consequences. (See section 5.2.) If there are any legal consequences, there must be law that attaches consequences to unlawful acts. One such a consequence may be that the agent who performed the act becomes liable for damages. Of course, this consequence only makes sense if there is damage. Sometimes, a person who has an interest in a potential unlawful act not being performed, can ask a court for an injunction. In criminal law, unlawfulness is typically a pre-condition for the liability to be punished. However, the main message is that unlawfulness as such is not very interesting. What is interesting are the consequences that the law attaches to unlawfulness as a necessary or even sufficient condition. Obligations In the English-language literature the words ‘duty’ and ‘obligation’ are often used interchangeably. An important exception is White 1984. Perhaps this has to do with the limited influence on the common law of Roman law, from which the notion of an obligation stems. Anyway, the dominance of the English language in the legal philosophical literature may have obscured the differences between duties and obligations. One glaring difference between the two is that a duty has a duty-holder, but no counterparty, while obligations are by definition obligations of a debtor towards a creditor. Moreover, the creditor has a claim on the debtor, and in the case of duties there is no counterpart of such a claim. Admittedly, many duties exist in order to protect the interests of one or more persons other than the duty-holder. Duties of care are a case in point. Moreover, sometimes the law attaches consequences to the fact that somebody’s interests are protected by a duty on somebody else, for instance standing in a judicial procedure. If the latter is the case, the difference between these duties and obligations is blurred. However, the possibility to blur a difference only illustrates that the difference exists. This section will start with an analysis of obligations which focuses on the difference between obligations and duties. Then it will be argued that obligations can only come about as the result of an event and that this event determines to a large extent the content of the obligation. Finally, it will be shown how obligations are co-determinative of what an agent legally ought to do. This section will be concluded with brief discussions of the possibility to ‘reduce’ obligations to a combination of a duty and a claim and the alleged obligation to perform contracts (pacta sunt servanda). Analysis of obligations The concept of an obligation has its main role in law, not surprisingly in the law of obligations. For a historical overview of this branch of law, see Zimmerman 1996. Strictly speaking, there are two concepts of obligation which are closely related. An obligation in the wider sense is a relation between two legal subjects which consists of an obligation in the narrow sense of one legal subject, the debtor, towards the other legal subject, the creditor, and a claim of the creditor on the debtor for the performance of the obligation in the narrow sense. An obligation in the narrow sense has four elements: 1. the debtor who must perform the obligation; 2. the creditor (or claim-holder) towards whom the obligation exists; 3. an indication of whether the performance consists in doing or refraining; 4. an action type that must be performed or refrained from. There can also be obligations to do something in a particular way, analogous to the similar duties. They will be ignored here. The elements 1, 3 and 4 are similar to the corresponding elements in duties and will not be discussed any further. One essential difference between obligations and duties is that obligations are, in contrast to duties, ‘directed’ (Herrestad and Krogh 1995). An obligation is always an obligation towards a legal subject. This legal subject towards who the obligation exists is called the creditor of the obligation, reflecting the roots of obligations in Roman law. Using modern terminology, the creditor might just as well be called the claim-, or right-holder. Here, I will use the expression claim-holder, because the concept of a right suffers, as we will still discuss in section 5, from some ambiguity. A claim, as I will use the concept here, is just one type of a right. Using this terminology, we can say that an essential characteristic of obligations is that they are directed towards a claim-holder. If in our example case Jaap becomes liable for damages, this liability consists in an obligation of Jaap towards Anouk as the claim-holder. The content of the obligation is that Jaap must pay Anouk €2000, as this is the damage to Anouk’s car expressed in money. The foundation of obligations All obligations are the result of an event, the ‘source’ of the obligation, and a dynamic rule which attaches an obligation to this event. Only after the event, and because of the event, the obligations comes about. Although different legal systems recognize slightly different sources of obligations, they concur in that the main sources are unlawful acts (torts We should be careful with lumping the common law doctrine of torts and the continental doctrine of liability for unlawfully caused damage together. Cf. Van Dam 2014. The focus in this article will be on the continental approach. I nevertheless want to claim that much of the argument also applies to tort law, in particular to the tort of negligence. ) and juridical acts, mainly contracts. For my present purposes, the precise sources of obligations are less relevant and I will focus on unlawful acts and contracts only. The typical case of liability for unlawfully caused damage, at least the kind of case I want to focus on here, is when an agent performs an act which is unlawful and when the act causes damage to somebody else (the victim). In such a case, a rule of liability law attaches to the occurrence of this event an obligation for the agent to compensate the damage of the victim to the extent that this damage was (counts as being) caused by the unlawful act. The victim becomes in the same way the holder of a claim against the agent for compensation of the damage. At least two things are noteworthy. First, the obligation is attached to an event, and the rule attaching the obligation is therefore a dynamic rule. Although duties may also be the result of an event, they are more often attached to the possession of some status, such as the status of car driver or the status of a judge. Obligations are never attached to status alone. However, the agent’s possession of a status may be a requirement for the onset of an obligation as the result of an event This is typically the case with some forms of strict liability, for instance if the possessor of a defective or dangerous good is liable for the damage caused by the good. Forms of vicarious liability also belong to this category. Second, the content of the obligation – for instance, the exact amount of money that must be paid – depends on the event that led to the obligation. In our standard example, the details of the car crash that Jaap brought about, in particular the amount of damage caused Other details may also be relevant, for instance in cases of contributory negligence., determine how much money Jaap must pay to Anouk. This holds in general for obligations: the details of what becomes obligatory are determined by the source of the obligation. In the case of contracts, this dependency of the content of an obligation on the source is the very reason why contracts are useful. The source of contractual obligations is first and foremost the contract. The intentions of the parties engaging in a contract are the main – although certainly not the only – determinants of the obligations that result from the contract. This makes it possible for legal subjects to influence their own legal positions to the extent that these positions consist of obligations. To keep the argument relatively simple, I ignore all the other changes in their legal positions that contract partners can bring about, such as the appointment of an arbiter to deal with conflicts arising from the contractual relation. Obligations and the legal ought Just as an agent can have conflicting duties, an agent can also have conflicting obligations, or obligations that conflict with duties. Conflicting obligations are based on conflicts of compliance: they occur when two obligations require that an agent does things that cannot all be done together. A common example is when somebody has more debts than she can pay. Perhaps every required payment can individually be made, but the total amount of debts is higher than the debtor can handle. In such a case, the impossibility to pay all the debts does not make one or more debts go away. Nevertheless, the existence of other debts can influence the issue of whether a debtor legally ought to pay one particular debt. In fact, paying one debt may favour one creditor over other creditors, which can under circumstances make the payment unlawful or invalid. An obligation may also conflict with a duty. For instance, the owner of a plot of land may contract with a neighbour to remove all thistles from his land against the payment of some amount of money. Later, the municipality imposes on all land owners a legal duty not to harm the natural vegetation of their land, including the thistles that may grow on it. The land owner cannot comply with both his contractual obligation and the municipal duty, so there is a conflict of compliance. However, this conflict takes neither the obligation nor the duty away, and most likely the land owner legally ought to comply with the duty and compensate his neighbour for not complying with his contractual obligation. Arguably, the obligation continues to exist, and relives – in the sense that it determines what ought to be done – as soon as the municipal prohibition is lifted. These examples illustrate that the step from obligations to what legally ought to be done (or omitted) is not an automatic one. An obligation to do something is a contributory reason why the debtor legally ought to do what the obligation requires. In this respect an obligation is like a duty. It is useful to have a technical term that stands for this common aspect of duties and obligations. In earlier work (Hage 2018a, p. 141-148), I proposed to use the concept of being obligated to this purpose. If an agent has the duty or the obligation to do something, or to refrain from doing something, he is by definition – and therefore without exceptions – obligated to do this, respectively to refrain from doing it. In our example, this would mean that Jaap was obligated to take care of his daughter, to avoid a car crash and that he has become obligated to pay Anouk €2000. If the step from duty or obligation to being legally obligated is without exceptions, the step from being obligated to what legally ought to be done must be open to exceptions. Being obligated is a contributory reason for a legal ought. What an agent legally ought to do is the outcome of adding and balancing everything that the agent was legally obligated to do. This raises the question of how this contributory reason relates to the duties and the obligations that were also claimed to be contributory reasons. The answer seems that being obligated replaces its underlying duty or obligation as contributory reason for the legal ought. Can obligations be reduced to duties and claims? Obligations differ from duties in that the former, but not the latter, include a claim and a claim-holder. This raises the question of whether an obligation is anything other than a combination of a duty and a claim. On closer inspection, this turns out not to be the case and the reason why is the relatively independent status of the claims that correspond to obligations. An example can illustrate this. Let us assume that the car crash caused by Jaap has led to an obligation for Jaap towards Anouk to pay her €2000 and a claim of Anouk on Jaap for the payment of this amount of money. This obligation and the corresponding claim are not independent entities. If they were, the transfer of the claim would not affect the obligation, but it does. Suppose, for instance, that Anouk needs her money immediately and that the payment of Jaap will still take a month (because of insurance issues). Anouk can then sell and transfer her claim on Jaap to Roy. After this transfer, Roy has become the claim holder and Jaap must pay €2000 to Roy. And here is the rub. If the obligation and the claim would have been independent, the obligation would have remained unaffected by the transfer of the claim. That is not the case, however. After the transfer of the claim from Anouk to Roy, Roy has become the new claim holder and the obligation of Jaap has changed from an obligation to pay Anouk into an obligation to pay Roy. A different claim holder means a different content for the obligation. As this example illustrates, the obligation (in the narrow sense) and the corresponding claim are closely related in the sense that they mutually influence each other’s content. The claim of the creditor is the claim that the debtor fulfils his obligation, and the obligation is directed towards the holder of the claim. They cannot well be seen separately, and although they can conceptually be distinguished (as was done above), they remain legally speaking connected. It is not possible to reduce obligations to pairs of a duty and a claim, because that would mean a larger independence between the two than actually exists. Pacta sunt servanda? It is sometimes claimed that there is a rule or a principle stating that contracts ought to be complied with: pacta sunt servanda. However, if obligations are the result of events and of dynamic rule that attach obligations to these events, there is no need for such a rule or principle. If an obligation has already come about, there is no need for a supplementary duty or obligation to comply with this obligation. If there is an event to which the law attaches an obligation, the law only attaches this obligation. It does not attach another obligation to comply with the first obligation. So, there is no rule or principle that obligates to comply with contracts or other agreements. By the way: historically speaking, the point of the principle pacta sunt servanda was not to create an obligation to comply with what was agreed, but only to make sure that so-called pacta nuda, oral contracts, could also lead to obligations (Zimmerman 1990, p. 565/6). Rights Overview Rights are sometimes presented as the opposites of duties, but there are several kinds of rights, including: human or fundamental rights, such as freedom of religion or the right to privacy, rights on things (in rem, as the Romans would say), such as ownership, mortgage and copyright and claim rights (rights in personam), which are parts of obligations in the broad sense. Rather than discussing what is the proper theory of rights – e.g. the will theory or the interests theory (Kramer, Simmonds and Steiner 1998; Ten 2006) – it seems more interesting to explain why rights can be so diverse and what distinguishes one kind of rights from another. That is what I intend to do in this last substantial section of this article. I will start with some background theory about legal status in section 5.2 and then continue with claim rights in section 5.3. In section 5.4 I will move to rights on things and I will mainly use ownership to illustrate the characteristics of these rights in rem. Section 5.5. will, finally, be used to show what other kinds of rights are also possible, and to that purpose, I will use freedom of religion and the right to privacy. Legal status Earlier we saw that unlawfulness is merely a status assigned by the law to some acts. An act was unlawful if the reasons why this act ought not to have been performed outweigh the reasons why the act ought to have been performed. However, unlawfulness as such does not mean very much. It is a step in an argument chain leading from violated duties or obligations, via unlawfulness, to the consequences of unlawfulness, such as liability to be sanctioned for a crime, or for damages (Ross 1957; Lindahl and Odelstad 2013). The law very frequently uses this mechanism of status: it assigns a particular status to a person, a thing or an event, which then counts as a status-holder. This status is immaterial and exists not in space, but only in time, and it is a necessary or sufficient condition for other, more substantial legal consequences. Examples of status are being legally the parent of a child, being the Prime Minister of a country, being a suspect in criminal law, the avoidability of legislation or a contract, being a sovereign and – particularly important for this section – being a right-holder. The existence of legal status, including the existence of a claim, can be compared to a pincushion with pins in it. The pincushion can (continue to) exist if more pins are added, or if pins are removed. The legal consequences attached to the status are comparable to the pins in the cushion. The cushion has as its only function to hold pins, and without pins the cushion loses its use, and perhaps even the nature of a pincushion. If the holder of a claim cannot enforce the claim anymore, for instance because she contracted with her debtor not to enforce any claims for the next three months, the claim continues to exist and the power to enforce revives after the three months have passed. If the government has created a ban on the transfer of claims, the claim also continues to exist, albeit with less powers for the claim holder. However, if all the legal consequences of a claim have disappeared, it makes no sense to speak of a claim anymore (Hage 2009). A legal status depends on there being some consequences attached to it, and without consequences, the status has lost its meaning. Status exists for the sake of the legal consequences attached to it and typically, no single consequence is decisive for the existence of legal status, but the existence of some consequences is crucial for giving the status legal sense. There is no a priori set of consequences attached to legal status, but some kinds of consequences occur frequently. For instance, the holder of a legal status can have a permission to do things which non-holders are not allowed to do. A status-holder can also have special competences to perform juridical acts which non-holders lack. And, finally, status-holders can be immune against the effects of some juridical acts. Claims Being a claim-holder is an example of legal status. A contract or a negligent act leads, via the application of a dynamic rule, to the existence of a claim and makes somebody the holder of this claim. Without additional rules, we have a claim-holder who cannot benefit in any way from this legal status. However, the status of claim-holder would make no legal sense if the law would not attach further consequences to it. In our example, Anouk has become the holder of a claim against Jaap for payment of €2000. This claim does not mean that Jaap has the obligation to pay Anouk that money. Jaap does have that obligation, but the obligation is the result of Jaap’s wrongful act, not of the claim. Anouk’s claim as such does not do anything, but the law attaches consequences to the claim. Perhaps the most important consequence is that Anouk has the standing to start proceedings against Jaap for performance and that courts have, if the claim was proven, the duty to order enforcement of Jaap’s obligation. The details of what the court or the enforcement agencies must do vary between jurisdictions, but the existence of some form of enforcement seems (almost) universal and the possession of a claim is often a pre-condition for this enforcement to take place. Another consequence of holding a claim is the possession of another status: the claim holder is often competent to transfer the claim to a new creditor. Because the claim is part of the estate of the claim holder, the claim may be amenable to seizure if the claim-holder has debts. And so on, and so forth … Rights in rem Claim rights are, together with obligations in the narrow sense, elements of obligations in the broad sense. They are always directed towards another legal subject. For instance, Anouk has a claim against Jaap for the payment of her damage. They are therefore also called rights in personam. Rights in rem are not directed towards a person, but they are rights on some ‘object’. This ‘object’ may be material, such as a home or a car, but it may also be immaterial, such as a trade mark or a product of creativity (copyright). It may even be argued that there can be rights on rights, for instance if a usufruct is construed as a right on a right of ownership, or if claim rights can become the objects of ownership. Despite these differences, rights in rem are remarkably similar to claims in the sense that both are cases of legal status. If you are the owner of some good, the owner received her ownership through the application of some dynamic rule which attached ownership to the occurrence of an event. Examples of such events are the creation of the object of ownership, or transfer of this right from one legal subject to another. Moreover, ownership as such has no fixed content (Ross 1957). It is like a pincushion which needs to be fed with pins that inserted into it. These pins represent the legal consequences of ownership, which are attached to ownership by fact-to-fact rules. Examples of such consequences are that the owner of a good is: - permitted to use, damage or destroy the good (e.g. Anouk is permitted to use her car); - competent to transfer her right to some other legal subject; - competent to create limited rights (such as a usufruct, a mortgage, or a license) on the good (or – in a different construction – on the right in rem); - competent to create similar permissions or competences for other legal subjects, without losing her ownership (e.g. Anouk can, without losing ownership, give Jaap permission to damage her car or make Jaap competent to sell her car). None of these consequences is essential for a legal status to be called ownership, but sufficiently many of them must be present if a legal status is to be called a right in rem, or more in particular ownership. The set of consequences may change in time, without necessarily leading to a loss of ownership. For example, if Anouk lets her car to somebody else, Anouk loses her permission to use, damage or destroy her car for the duration of the lease, but she remains the owner. There is one characteristic that is shared by all rights in rem, namely that all legal subjects with the exception of the right-holder have a duty not to infringe upon the right. It depends on the right in question what kinds of behaviour would amount to such an infringement. Damaging the object of ownership or a mortgage would certainly count, as would unauthorized copying of the object of a copyright or use of a trade mark. The scope of the duties attached to a right in rem can typically be modified by the right-holder. We have already seen that the owner of a good can give permission to damage the good, or lease the good. Another example would be that the holder of a copyright can license copying the object of the right, or that the holder of a mortgage on a home can give the owner permission to rebuild the home. Other rights Some rights are very much like rights in rem although they do not rest on some good. One example is the right to privacy. It is attached by a fact-to-fact rule to being human and may for that reason be called a human right. As such, the right to privacy does not do anything, but the right lives in the consequences that the law attaches to it. One of the main consequences is a prohibition (a duty not to do) on all except the right-holder to do or omit actions that would count as an infringement of the right. Because of this prohibition, privacy functions almost as a right in rem with a person’s privacy being like the object of such a right. Other human rights are very different, and the freedom of religion is an example. As a human right, it is attached to being human by a fact-to-fact rule, and in this respect it is similar to the right to privacy. However, the consequences of the freedom religion are very different. They include first and foremost a permission to manifest one’s religion or beliefs in worship, teaching, practice and observance (Art. 9 ECHR). This permission is protected by a lack of competence in law-makers to take this permission away. In Hohfeldian terminology, this lack of competence on the side of law-makers might be called an immunity of the right-holder. I prefer not to speak of immunities and this has to do with my preference for not analysing all legal positions in terms of legal relations. This lack of competence can be compared to the universal prohibition that is attached to rights in rem and also to the right to privacy, but the major difference is that the latter are protected by a prohibition, while the freedom of religion is protected by a lack of competence. It is possible to disagree on whether states cannot forbid the exercise of a religion (lack of competence), or that it is merely forbidden for them to do so (prohibition). I will not enter into this debate here. Concluding observations All legal rights are cases of legal status. Legal status is something immaterial, that is established by legal rules and to which legal rules attaches consequences. The combination of rules that create the status, rules that specify how the status is lost and the rules that attach consequences to it is all there is to legal status (MacCormick 1986). Having a name for a legal status, such as ownership, being a criminal suspect, or freedom of religion, only makes sense if there are clusters of rules which play a role in law that is so important that it is useful to have a name for them. Some of these clusters exist to protect the interests of legal subjects, and that may be a reason for making their enforcement depend on legal action undertaken by these subjects. Herein lies the basis for the interest and the will theories of rights, and for singling out some cases of legal status as being rights. This is all there is to rights: they are special cases of legal status and they are completely defined by the rules that specify how they come about, how they end and what their consequences are. It makes little sense to search for a further common denominator of rights; the insight that they are special cases of legal status in combination with an understanding of what legal status is, is all there is to know. There is no special relation between duties and rights. Although some rights consist partly in the existence of duties on others than the right-holder, some other rights – mainly claims – are not. So the main claim of this article about the relation between duties and rights is that there is no general relation between these two. However, there is a general relation between claim rights and obligations, both in the broad and in the narrow sense. 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