DUTY — Notes on Jurisprudence
Duty → to do or not to do
I. Definition of Duty
• Act of omission or commission.
• * "Duties and wrongs are correlatives."
• The commission of a wrong is the breach of a duty, and the performance of a
duty is the avoidance of a wrong.
◦ → Salmond
Salmond
• Salmond distinguishes legal duty and moral duty:
◦ A legal duty is an act opposite to which is a legal wrong.
◦ A moral duty is an act opposite to which is a moral wrong.
Bentham
• "Duties are obligations or charges onerous to him who ought to fulfill them."
Keeton
• "Duty is an act or forbearance (compelled by the state) in respect to the rights
vested upon another, breach of which is a wrong."
Hindu Concept & Prof. Wilson
• Hindu → Duty → Dharma ('Dhri' → to hold)
• Prof. Wilson — A Glossary of Judicial and Revenue Terms:
◦ Dharma: law, virtue, legal or moral duty.
II. Kinds of Duty
(A) Universal, General and Particular — Acc. to Jenks
• Universal: Binding on all normal members of the community. Example: not to
harm others.
• General: 'Particularly' binding on classes of normal persons (not voluntarily
formed). Example: law within Nepal (Constitution, Civil Code) — Art. 48.
• Particular: Binding only on persons who have voluntarily taken it. Example:
particular person, Code of Advocates, contracts.
(B) Legal and Moral Duty — Salmond
(C) Positive and Negative Duty
• Positive: When the law obliges to do an act. E.g.: paying tax. (To fulfill duty, any
action is required.)
• Negative: To fulfill duty, restrain (रोक्न) is required. Example: not to harm
others. When the law obliges us to forbid/forbear to do an act.
(D) Primary and Secondary Duty
• Primary: Independent duty. Example: not to beat others.
• Secondary: Depends upon primary duty. Example: compensation. Enforced by
primary duty.
(E) Relative and Absolute Duty — Austin
• Relative: Right and duty are correspondence (co-relative). Those duties having
corresponding right to them.
• Absolute: 4 types:
◦ (i) Duty towards god or lower animal.
◦ (ii) Duties owe to persons indefinitely in the community. (Duty of all people of
a society)
◦ (iii) Duty towards self regarding duties. (Attempt to suicide)
◦ (iv) Duties owed to sovereign. (Duties made by and for sovereign)
III. Co-relation Between Right and Duties
The gist is that rights and duties are co-related.
Jurists: Holland, Salmond
Holland
• Holland explains the concept of duties in relation with the concept of rights. Every
right, whether moral or legal, implies the active or passive furtherance by others
of the wishes of the party having the right. Wherever anyone is entitled to such
furtherance on their part, it is said to be their duty.
Salmond
• "There can be no right without a corresponding duty or a duty without a
corresponding right, as there can be no husband without a wife or a father
without a child."
• Every right or duty involves a vinculum juris or bond of legal obligation, by which
two or more persons are bound together.
IV. Duguit's Theory of Duty
• Law में social solidarity होछ, right मा focus जाने होइन, duty मा focus
जान।
• → "Social Solidarity Theory"
Paton on Duguit's Theory
• "Useful antidote to excessive individualism of some theories of natural law, but
his theory creates a tyranny of duties to the exclusion of rights."
• * Man only does not live for himself nor he only lives for others.
• → "Duguit's theory is incomplete."
• Allen and Paton → criticized Duguit's theory.
V. Lundstedt's Theory
• Acc. to Lundstedt: "Law consists neither solely of rights nor solely of duties. Law
arises from one single source only, namely, the sheer necessity of order, security
and self-preservation in society, unconnected with any moral inception or
connection."
Lundstedt (contd.)
• "In reality right is purely an abstract expression or a mere form for actual
situations in which an account of certain rules maintained by force, certain acts
give rise to certain effect."
VI. Case Laws
Case Law 1
• Adv. Bhoj Bahadur K.C. vs. Office of PM et al.
• NKP 2074, D.N. 9839
• "The state must also remain ready to ensure (others) the fulfillment of duties,
which are on the other side of the same coin as rights."
Case Law 2
• Adv. Tulsi Simkhada vs. Office of PM et al.
• D.N. 10468, NKP 2077
• "State not to hassle citizens for parking systematically without fulfilling the duty to
provide enough parking spaces."