Individual Duty within a Human Rights Discourse

Douglas Hodgson

• Editorial: Routledge
• Año: 2017
• ISBN:
  9781351927826
• Edición: 1
• Categoría: Diritto
• Categoría: Diritti civili in ambito legislativo

Over the past two decades or so, legal literature has devoted much attention to various human rights issues at both the national and international levels. Yet there has been comparatively little written on the concept and importance of individual duty within the human rights discourse. This book attempts to comprehensively and systematically examine the corollary of human right - the principle of individual duty - from a number of different perspectives, including history, the law (principally international human rights and humanitarian law and national constitutional law), philosophy, jurisprudence, religion, and ethics. The author attempts to demonstrate that a greater emphasis upon individual duties is consistent with a cultural relativist critique, natural law theory, the experience of national legal systems and regional human rights systems, certain socio-political philosophies and conventional sociological postulates, and the dictates of good public policy. The author urges the assignment of a greater, indeed revived, role for the principle of individual duty in order to achieve a more salutary balance between rights and duties and in the relationship between individual freedom and the welfare of the general community.

Chapter 1
Introduction

The fulfillment of duty by each individual is a prerequisite to the rights of all. Rights and duties are interrelated in every social and political activity of man. While rights exalt individual liberty, duties express the dignity of that liberty.¹

The main purpose of this book will be to examine the principle of individual duty from a number of different perspectives, including history, the law (both international and national), philosophy, jurisprudence, religion, ethics, socialism and cultural relativism. For a long time national legal systems have recognised and enforced in their constitutions and ordinary legislation various duties which citizens owe to their own families, the communities in which they reside and their country. Such duties include the duty to pay taxes, the duty to provide maintenance and a basic education for one's children, the duty to undertake military service for a specified period and the duty to obey the constitution and other laws.

A central focus of discussion will be the controversial and emerging trend, particularly since the end of World War II, to recognise individuals as the bearers of duties under international law. This development was foreshadowed by an American judge in 1793 in the following passage:

When men have formed themselves into a political society, ... they cannot, by this union, discharge themselves from any duties which they previously owed to those who form a part of the political association. Under all the obligations due to the universal society of the human race, the citizens of the state will continue ...On states as well as individuals the duties of humanity are strictly incumbent...²

The term 'duty' may broadly implicate any act or abstention from action which is considered morally or legally incumbent upon the duty-holder. The source of a duty may be obedience to the dictates of one's conscience, custom, a particular religious or ethical tenet (such as the duty not to harm others or unjustifiably enrich oneself at their expense), the secular law itself or it might be based upon personal relations (such as the mutual duties of parents and their children). A useful explication of the meaning of the term 'duty' follows:

In its use in jurisprudence, [duty] is the correlative of right. Thus, wherever there exists a right in any person, there also rests a corresponding duty upon some other person or upon all persons generally. But it is also used, in a wider sense, to designate that class of moral obligations which lie outside the jural sphere; such, namely, as rest upon an imperative ethical basis, but have not been recognized by the law as within its proper province for purposes of enforcement or redress. . . In this meaning 'duty' is the equivalent of 'moral obligation', as distinguished from a 'legal obligation'.³

This book will identify and analyse mainly legal duties arising for individuals under international and national (constitutional) law, although references will be made from time to time to moral duties.⁴ As will become apparent in Chapter 6, the meaning of the concept of duty, the manner in which duties are performed and the degree of emphasis and importance attached to them will vary across different cultures, belief systems and historical traditions as well as political, socioeconomic and legal systems.

As the above-quoted third preambular paragraph of the American Declaration of the Rights and Duties of Man emphasises, human rights and duties form a basic unity or organic whole. The linkage between rights and duties is very tight in the sense that virtually every right implicates a corresponding or correlative duty.⁵ The discharge of a duty is the guarantee and precondition of the realisation and enjoyment of human rights. Nonetheless, one commentator has recently referred to the principle of duty as 'that great neglected rule'.⁶ The observation that human or individual duties do not today enjoy the same exalted status as human rights, at least in Western liberal democracies, has also been made by a Special Rapporteur of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities:

[I]n the systems of the Eastern countries the principle of equal rights and equal duties prevails. This could be said for a number of less developed countries, in particular in Africa, Asia and Latin America. In the systems of most of the Western European countries and others, on the other hand, the emphasis is put on the effective protection of individuals' rights. An overwhelming majority of statesmen, legislators, jurists and sociologists of the West consider that the primary role of the law is to protect individual rights, even if logically, duties should in certain cases have priority.⁷

As will be discussed in Chapter 9, 'it is rights which are the dominating subject of discourse'.⁸ David Selbourne has complained:

The principle of duty, ... as the obligation of the individual to ... fellow-members of the civic order, now sounds strange to many ears, and no longer possesses real moral status. The idea of the enforcement of such obligation suggests the very spirit of reaction, not of progress.⁹

Yet why is this so? The principle of duty, as will be demonstrated in Chapter 2, has venerable and ancient roots in Judaism, Confucianism and Greco-Roman philosophy and jurisprudence. The principle of duty, moreover, is the historical antecedent of the concept of human rights. The contemporary decline of the principle of duty can be traced back to the mid-nineteenth century, if not earlier, coinciding with the emergence of liberal democratic theory under the influence of laissez-faire and the writings of John Stuart Mill. The notion that the State should interfere as little as possible in the private lives of individuals, coupled with the call for citizens to be protected from arbitrary exercises of authority by the State itself through a system of civil liberties, eventually displaced the principle of duty from its pre-eminent historical position. Today, most liberal theorists support 'rights' over 'duties' as a preferable system for attaining individual freedom and dignity.¹⁰ This preference is based upon a variety of factors. It is argued that duties are insufficiently precise in their content or lacking in foundation to be considered enforceable.¹¹ By contrast, 'rights' are considered superior because of their greater ability to be enforced, their empowerment capacity and their rhetorical strength. Furthermore, the emphasis placed upon 'individual freedom' creates an environment inimical to notions of extensive obligations to one's neighbour.¹² Rights tend to enjoy more popular appeal than duties (which can require significant personal sacrifices for the common good). While we like to be fully cognisant of our rights, we may not always enjoy being reminded of our duties which can prove to be an annoyance or intrusion into our individual realms. Furthermore, as the force of divine prescription has gradually diminished within the Western secular State, much of the spiritual basis of duties has disappeared.

It is the author's intention to demonstrate in the succeeding chapters that the contemporary emphasis upon rights over duties is incompatible with the following:

• a cultural relativist critique inasmuch as some cultures (principally those in Africa and Asia) place much greater emphasis upon the recognition and fulfillment of individual duties;
• mainstream religious and ethical systems which consider duties to occupy a more central position in human affairs;
• early natural law theory and Greco-Roman political and social philosophy;
• the experience of national legal systems (both civil and common law) which have traditionally prescribed legally enforceable individual duties in civil codes, constitutional and statutory provisions and judge-made common law;
• regional human rights systems (particularly those in Latin America and Africa) which explicitly mention duties in their constituent documents;¹³
• certain socio-political philosophies (notably socialism and communitarianism);
• the dictates of good public policy;
• certain conventional sociological postulates concerning the nature of human existence (regarding humans as essentially and innately a group-dependent social species).

Chapter 2 will provide an overview of the historical development of the principle of duty and discuss the contributions of certain political philosophers to that process. Chapter 3 will examine the correlative nature of rights and duties and the various ways rights theorists have sought to classify duties. Chapter 4 investigates the dominant position the principle of duty occupies in a number of mainstream religious and ethical systems. The emergence of the concept of individual responsibility and accompanying individual duties within the framework of international humanitarian law (particularly in relation to war crimes and crimes against humanity) will be covered in Chapter 5. Chapter 6 catalogues the extent to which the principle of individual duty has been explicitly addressed by the international and regional human rights systems. Chapter 7 compiles a representative sampling of provisions contained in constitutional documents and ordinary legislation which impose duties upon individuals. Chapter 8 analyses the sources and content of the principle of duty from a socialist perspective. Chapter 9 discusses the perception that rights are overemphasised at the expense of duties and the alleged deleterious consequences of such a disequilibrium, which has given birth to the communitarian movement (particularly within the United States of America). The penultimate chapter identifies the extent to which duties are capable of being enforced as well as the main impediments to such enforcement. The concluding chapter calls for the assignment of a greater, indeed revived, role for the principle of individual duty in order to achieve a more salutary balance in the relationship between rights and duties and in the relationship between individual freedom and the welfare of the general community.

1 Second preambular paragraph of the American Declaration of the Rights and Duties of Man Resolution XXX. Final Act, Ninth International Conference of American States, Bogota, Colombia, 30 March - 2 May 1948 (Pan American Union, 1948), p. 38.

2 Henfield's Case 11 F. Cas. 3099, 1107 (C.C.D.Pa. 1793) (No. 6, 360) per Wilson J.

3 Black's Law Dictionary (Revised Fourth Edition, 1968) p, 595.

4 The term 'duty' will be used interchangeably with the terms 'obligation' and 'responsibility' since their meanings are largely synonymous.

5 The correlative nature of rights and duties will be examined in more detail in Chapter 3.

6 David Selbourne The Principle of Duty (1994) p. 148.

7 Erica-Irene A. Daes Freedom of the Individual under Law: A Study on the Individual's Duties to the Community and the Limitations on Human Rights and Freedoms under Article 29 of the Universal Declaration of Human Rights (United Nations, New York, 1990) 40.41 (footnote excluded).

8 Selbourne, op. cit., p. 2.

9 Id. p. 5.

10 A. Devereux 'Should "Duties" Play a Larger Role in Human Rights? A Critique of Western Liberal and African Human Rights Jurisprudence' (1995) 18 University of New South Wales Law Journal p. 464, p. 467.

11 The enforcement of legal and moral duties will be canvassed in Chapter 10.

12 Devereux, op. cit., p. 467.

13 The regional human rights systems and their constituent documents will be examined in Chapter 6.