A right is usually presented as something a subject possesses: permission to act, an authority, an object one can have or lose. This conception places right before action and makes the subject dependent on prior permission.
The starting point here is different. First, there is the subject and the subject’s action. Right arises in relation to the response to that action.
A subject does not need a right in order to act. A right defines the mandatory mode in which other participants must relate to an action already performed or being performed.
The Subject as the Source of Action
The subject themselves is the source of their action. They do not need prior authorization from a law, a state, or any other system to perform an action. They can act regardless of whether any legal system exists at all.
Right does not create the possibility of action. The possibility of action already belongs to the subject. Right concerns not the emergence of action, but how other participants must respond to it.
Hence the asymmetry of the entire construction. The subject and the legal system are not symmetrical. Legal regulation establishes duties for other participants in relation to the subject’s action.
The expression “the subject has a right” turns out to be an abbreviation that can easily mislead. It creates the impression that the subject possesses some entity that enables them to act. The construction under examination concerns something else: in relation to a subject’s action, certain behavior by other participants has been established as mandatory.
Two Modes of Mandatory Relation
Right defines two fundamental modes of relating to a subject’s action.
The first is the absence of interference. The subject performs an action, and the system is obliged not to obstruct them. For example, the subject expresses an opinion. A legal arrangement may establish a duty for the state not to interfere with that expression.
The second is assistance. The subject performs an action, and the system is obliged to respond with a particular positive action. For example, the subject makes a claim for compensation for damage. If the established grounds are present, a duty arises for the relevant person to perform a corresponding action.
These two modes must not be collapsed into one. It is possible not to obstruct someone while at the same time not helping them. Where a duty of assistance exists, such failure to assist becomes a violation even in the complete absence of active interference.
It is therefore necessary to distinguish behavior itself from its normative assessment:
- assistance: performing a positive action in response to the action of another subject;
- non-interference: refraining from actions that obstruct another subject;
- failure to assist: the absence of a positive action needed by another subject.
In themselves, these descriptions do not yet tell us which particular duty has been established. The duty is specified by conditions.
Duty Arises from Action and Conditions
There are two subjects: A and B. Subject A performs an action. Under certain conditions, this action creates a duty for subject B to respond in a particular way.
The consent of subject B is not the source of that duty. B may not wish to perform it, may disagree with the demand, or may deny that it has any grounds. If the conditions under which the duty arises have been satisfied, B’s consent neither creates nor cancels it.
The source must be distinguished:
- voluntary assumption of a duty: the subject themselves agrees to bind themselves to particular behavior;
- arising of a duty independently of consent: another subject performs a legally significant action, or a stipulated condition occurs, and a duty arises as a result.
The second construction is examined here. In this context, duty is the appropriate term, rather than obligation. An obligation presupposes that a subject has themselves agreed to something. A duty may arise because another subject has performed an action under established conditions.
The sequence is as follows:
- The subject performs an action.
- The correspondence of the action to the stipulated conditions is established.
- When the conditions are satisfied, a duty arises for another subject.
- Assistance becomes performance of the duty; failure to assist becomes its violation.
If the first subject’s action is denoted by \(A\), and fulfillment of the conditions by \(C\):
\[
\begin{aligned}
A + C &\Rightarrow B_{\text{must assist}} \\
A + \neg C &\Rightarrow B_{\text{not required to assist}}
\end{aligned}
\]
The absence of a duty to assist does not automatically entail a duty to refuse.
A decision by subject B is not a condition for the arising of B’s duty unless the right itself stipulates such a condition. If the conditions have already been fulfilled, the duty exists regardless of whether B recognizes it.
Subject B does not choose whether the duty arises. B chooses whether to perform or violate a duty that has already arisen.
The law establishes the conditions under which an action acquires legal consequences for other participants.
This yields two basic types of duty:
- negative duty: not to engage in a particular form of interference;
- positive duty: to perform a particular action that assists in the exercise of a right.
A positive duty is independent. It is not reducible to a prohibition on interference.
Right and Permission
Permission may depend on the will of the one granting it. A right establishes boundaries on that very will: the party bearing the duty cannot, at their own discretion, cancel the relation belonging to another subject.
A right does not necessarily eliminate interference in fact. It makes certain interference unlawful. The guarantee of a right therefore concerns securing the corresponding response to the subject’s action.
If a subject acts and the system actually resists in violation of an established duty, the right does not disappear. A distinction arises between the normatively required response and the actual response.
A provider’s acknowledgment of the grounds of a demand and the very existence of those grounds are different things. The party bearing the duty does not become the source of the right. Their subsequent agreement or disagreement neither creates nor cancels a right that has already arisen. The duty to assist arises because the grounds stipulated by law exist.
When the Result Depends on the Other Party’s Opinion
If the result of a subject’s action depends on an arbitrary decision by another subject, the question arises in what sense one can speak of a right at all.
What needs to be examined is not whether there is a right in general, but the content of the duty.
Consider the submission of a complaint. Right arises in relation to the other party’s response.
Two duties, and accordingly two rights, are distinguished here.
The right to consideration. When the conditions are satisfied, the other party must examine the complaint, formulate a position, record it, and communicate it. The content of that position may depend on established circumstances and their assessment. The other party may agree with the demand or refuse to satisfy it. But it is not entitled simply to ignore the complaint.
The right to satisfaction of a demand. When the conditions are satisfied, the other party must perform the concrete action demanded by the subject. Here, recording the position “I disagree” is no longer performance of the duty.
The content of a response may depend on the other party’s opinion, and that does not yet extinguish a right. It is necessary to establish exactly what is the object of the duty.
If the duty consists in consideration, the right is exercised through proper consideration and provision of an answer. If the duty consists in compensation for damage, a reasoned written refusal may fulfill the duty to respond while simultaneously violating the duty to compensate for the damage.
One and the same action by the system must be examined in relation to a specific duty. One cannot conclude that the system has fulfilled the subject’s right merely because it responded in some way.
The familiar expression “the right to file a complaint” turns out to be a shortened and misleading designation. What is at issue is the right to demand that a submitted complaint be considered and that the other party record and communicate its position.
The right to consideration means, at a minimum, that the system must put its position on record. If the other party merely forms an opinion internally but never expresses it, the required response to the subject who applied has not occurred.
Assessment of Conditions and Arbitrary Decision
Two constructions can be distinguished.
The first: if conditions \(C\) are satisfied, subject B must perform action \(X\).
The second: if conditions \(C\) are satisfied, subject B independently decides whether to perform action \(X\).
In the first construction there is a right to demand action \(X\). In the second, fulfillment of conditions \(C\) does not itself create a duty to perform \(X\). It may create only a duty to consider whether to perform \(X\).
If the second construction is presented as the first, a right is replaced with the possibility of obtaining a favorable decision.
An official’s conclusion that grounds exist does not itself become the source of the right. It constitutes an assessment of circumstances that can be challenged. But if satisfaction of the demand really is left to free discretion, the applicant has no right to demand a specifically favorable decision. They may nevertheless retain a right to proper consideration.
Hence the question of fiction. A right becomes fictitious when the law formally establishes a duty but leaves to the subject bearing that duty the ability to determine independently and conclusively whether the conditions of its arising have been met. Then the decision of the party to whom the duty is supposed to apply becomes, in effect, the source of the right.
Definition
A right is a normatively mandatory mode of relation of other subjects and institutions to a subject’s action, expressed either as a prohibition on certain interference or as a duty of assistance.
A right exists where a particular action of a subject under established conditions corresponds to a particular duty of the other party.
If there is no such duty, and another subject is free to decide whether to satisfy the first subject’s wish, what exists is the possibility of obtaining the corresponding result.
The examination of right is therefore shifted from the subject’s presumed powers to the duties of those who enter into a relation with the subject’s action.
The subject remains the starting point of the entire construction. Right establishes duties for other subjects in relation to that action.
The duty corresponding to a right is one instance of duty. The general construction is examined in Duty as Required Behavior When Conditions Arise.
