Classification of legal duties
Legal duties may be classified as follows:
- Positive and negative duties
- Primary and Secondary duties
- Absolute and Relative duties
Positive and Negative duties:
When the law obliges us to do an act the duty is called positive, when the law obliges us to forbear from doing an act, the duty is called negative. If A has a right to a land, there is a corresponding duty on persons generally not to interfere with A’s exclusive use of the land. Such a duty is negative duty. If A owes a sum of money to B, the former is under a duty to pay the sum when due. This is a positive duty. In positive duties performance extinguishes both duty and right. A negative duty can never be extinguished by fulfilment.
Primary and Secondary Duties:
A primary duty is that which exists per se and independent of another duty. The duty not to cause personal injury to another is a primary duty. A secondary duty is one which has no independent existence but exists only for the enforcement of other duties. The duty to pay damages for the injury already done, is a secondary duty.
Absolute and Relative Duties:
Austin distinguished between absolute and relative duties. According to him, while every right is relative and has a correlative duty, every duty need not necessarily have a correlative right. In Austin’s opinion some duties are absolute duties to which no corresponding rights are attached. According to Austin’s analysis, there are four kinds of such duties:
- duties not regarding persons (those owed to God and the lower animals),
- duties owed to persons indefinitely (duties towards the community eg. Duty not to commit nuisance),self regarding duties (duty owed to one self eg. Duty not to commit suicide or duty not to become intoxicated.)
- duty towards State.
As indicated above absolute duties are those which have no corresponding or correlative rights. Relative duties are those to which there is a corresponding right in some person or definite body of persons eg. duty to pay one’s debt to the creditor.
According to Salmond, all duties are relative and there can be no absolute duties, for there must be a right in another when one is under a duty.
All these four kinds of absolute duties as mentioned by Austin are really reducible to one head – Duties towards the State. Man’s relation to God is a matter of religion and not of law. If the legal system protects certain religious duties with a sanction, then that duty is part of the law and amenable to same analysis as other legal duties. So far as duties towards animals are concerned, if the law prohibits cruelty, one may owe a duty to the State. In case of duties towards the community or the public, duty is merely the correlative of the right inhering in each member of the community. As for self-regarding duties, there cannot be a legal duty owed to oneself. The duty not to commit suicide is not a duty I owe to myself but is part of the criminal law and subject to the same analysis as any other duty imposed by the criminal law. In Austin’s view, the duties of the subjects towards the State are absolute. This argument leads to the rejection of the notion that there can be a right-duty relationship between the subject and the state. Austin maintained that when the state imposes a duty on a subject, it is a misuse of language to say that the State has a corresponding legal right. The state has physical power. The exercise of a legal right is regulated, whereas the power of the sovereign is not.
Austin’s thesis of ‘absolute duties’ is generally rejected in modern times. However, Prof. C.K.Allen supported Austin’s view. He was of the view that where the State imposes duties in virtue of its sovereign character, the duties are absolute without correlative rights in the State. For example, a State compels children to go to school, or to be vaccinated, prohibits the sale of liquor. In these cases there are no corresponding rights. According to Allen, the duties imposed by the criminal law are absolute duties