Q. 7. What do you mean by the term ‘Duty’. Is there any concept of `Absolute Duty’? Explain with reasons. Or Define the term ‘Duty’. What is meant by the term ‘Absolute Duty’? Explain.
Ans. `Duty’.—The society consists of people who in turn consist in the shape of men, women and children and law regulates their behaviour inter se and opposite to each other which is termed as “Duty and Right” depending upon the quantum of obligation or benefit of liberty of user if thrust upon by the law it becomes legal otherwise it is moral.
Duty is the behaviour which one has to perform or negatively one has to refrain from doing certain acts and breach of duty may lead to imposition of certain punishment if it is legal. In case of moral duty also `expiation’ is the punishment if it is breached.
A duty is an obligatory act, i.e., it is an act the opposite of which would be wrong. Thus, duties and wrongs are generally correlated. The commission of a wrong is the breach of duty and the performance of a duty is avoidance of wrong (Fitgerald P.J—Salmond on Jurisprudence, p. 217).
Duties are of two kinds—
(1 ) Legal, and
(2) Moral.
A duty may be legal but not moral or it may be morai but not legal, or it may be both—moral and legal as well.
The law enforces the performance of a legal duty or punishes the disregard of it.
Absolute Duty.—According to Keeton, a duty is an act or for bearance compelled by the state in respect of a right vested in another the breach of which is a wrong. Hibbert refers to absolute and relative duties. According to him, absolute duties are owed only to the state, breach of which is generally called a crime and the remedy for it is punishment. Relative duties are owed to any person other than the one who is imposing them, the breach of which is called a civil injury which is redressible by compensation or restitution to the injured party. Austin also supports the view that certain duties are absolute, that is, they do not have a corresponding right. For instance, duty towards God or state or a duty not to commit suicide is absolute. A duty of kindness towards animals is also an absolute duty but shall be under the bracket of moral duty unless imposed by some law enforceable by the state.
Dr. Alien also supports Austin’s view that a duty owed to the state is absolute and there are no correlative rights in the state. To quote his words, “A state compels children to go to school, or to be vaccinated, prohibits the sale of certain drugs or alcoholic liquors or forbids the importation of animals which have not first been quarantined. In such cases; the State, has no corresponding right. Particularly, the duties en-forced by criminal law are absolute duties.
Salmond, however, rejects Austin’s concept of absolute duty. He says, ‘there can be no duty without a right any more than there can be a husband without a wife or parent without a child. Rights and duties are always correlated and therefore, there is no scope for an absolute duty. Professor Gray also denies the existence of an absolute duty.
Classification of legal duties.—
(1) Positive or Negative Duty.—When an obligation is imposed by law to do an act it is positive duty while to refrain to do a certain act is ordained, it is negative duty. Perfor-mance of the positive duty such as paying off the tax or debt, extinguishes both duty and right. The negative duty such as to refrain from interfering with the exclusive possession and use of things owned or possessed by some one. The negative duty remains in existence so long as others have a corresponding right of non-interference.
(2) Primary and secondary duty—A primary duty is one which exists per se and is independent of any other duty. To pay tax is a primary duty or to refrain from causing hurt to another is a primary duty. The secondary duty is one which has no independent existence but exists for the enforcement of another duty. To pay damages for causing injury is a secondary duty. It is also called a sanctioning duty or a remedial duty.
(3) Absolute and Relative duties.—Absolute duties arc owed only to the state breach of which is termed as crime and remed” is its punishment. Relative duties arc owed to any person other than the one who is imposing them and breach of which is termed as civil wrong which is remedied by restitution or compensation to the injured party. Salmond has rejected the Austin’s concept of absolute duty towards the state and has asserted that there can be no duty without a right.
