Benjamin Porat, ‘Rights-Based Law v Duty-Based Law: Old Dilemma, New Perspective’

Abstract:
The concept of right stands at the very center of our legal universe. Rights are the raw material from which the entire legal edifice is built. But one can also imagine an alternative legal universe that contains exactly the same norms as ours but is centered on the concept of duty. Duties would be the raw material from which this alternative legal edifice might be built. Following the Hohfeldian assumption of complete correlativity between rights and duties, one can argue that the difference between these two parallel legal universes is merely a matter of rhetoric. This article, however, argues that a rights-based legal world would presumably be significantly different from a legal world based upon duties. It provides a roadmap which highlights the major contours of the structural differences between rights-based law and duty-based law. The comparison that is made is between our modern law and classical Jewish law, the latter being considered a typical example of a duty-based legal system. Among the issues that are discussed in the course of the article are (a) duties which allegedly have no correlative rights; (b) the relations between affirmative duties and negative duties; (c) the relations between duties and claims; (d) deciding between contradictory norms. Towards the end of the article, this analysis leads us to consider the possibility of a richer, non-binary, legal language that combines elements of the lexicon of rights with elements of the lexicon of duties. Such a combination, executed judiciously, may enable us to relearn the language of duties while at the same time continuing to improve our rights-language, thus benefitting from the best of both worlds.

Porat, Benjamin, Rights-Based Law v Duty-Based Law: Old Dilemma, New Perspective (November 28, 2015).

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