The author(Prof Gray) starts by discussing the nature of human intercourse throughout the civilization. People have always maintained the concept of "right and wrong". What a person ought to do. And what a person should refrain from doing. That much is clear.
Since we have always held the notion of right, it becomes difficult to explain what a right actually is from the perspective of the legal science. The ambiguity of a language presents an obstacle to our understanding the term right as a concept of law.
Is right something which is morally accepted by the society as the correct thing to do? Or is it something that a person ought or ought not to do regardless of the view of the society? How does law protect a right? Does free will have any effect on right? What are duties? Does free will have an effect on the duty of a person?
An analytic discussion of the word right raises many questions and there are an equal number of answers depending upon the point of view with one chooses to analyze.
A society has a force of opinion that is is greater than the opinion of any single person. This opinion influences the behaviour of all the individuals within it. The actions which confirm to the opinion of the society are praised where as those which contradict are censured.
But a society is not a nation. The opinion of the neighbours may/may-not approve the actions of a person but that opinion can't be used as a test for their validity. Since what is right has to be good for the greatest number of people. And what is wrong has to be bad for the greatest number of people.
"A right is co-relative to duty. Where there is no duty there is no right. But there can be duties without a right." What follows is that duty creates rights. In order for a duty to create right there must be an action or it's forbearance.
Since a right is an action or it's forbearance the exercise of right is determined by the will of the individual. The wills of the greater portion of men is exercised by a fictitious person called state. Where as an individual right must be exercised by an individual.
For example: I have the right to live peacefully in my house. If a person through his actions obstructs my right of enjoyment I can compel or forbear him to remove the obstruction. But the act of compulsion or forbearance must come through me, my will. I can also choose to look the other way. I can choose not to exercise my right.
But if a man murders another then it is not up to the relatives of the murdered man to determine whether the murderer should be brought to justice. In this case the the right to life was taken from a murdered man and the fictitious person called state chooses to exercise the rights on the behalf of the murdered man.
The above example also gives some insight into what duties are. In the first example it is the duty of every man to not obstruct the peaceful living or a person in his house. This duty creates a right by giving the person power to compel him to stop an act of obstruction. If the peaceful living is obstructed then the person can choose to remove that obstruction.
In the second case it is the duty of the fictitious person state to protect the right to life of a citizen. It does not give any right to state to choose whether or not to punish a man who takes away the right to life. If the right is taken away the murderer is brought to justice regardless of the will of the state or the relatives.
Legal duties are different from moral duties. It is a moral duty of a man to love his neighbour. But I can't be punished for not loving mine. But I will certainly be punished for not paying the fine which the judgment in a court has imposed on me.
Legal duties are therefore not a subject of will. Whether I will it or I will it not, any legal duty imposed on me must be performed.
Following the discussion above it is quite clear why animals have no rights in the law of most countries. Because animals can not perform a duty. If right is correlative to a duty and every being exercising a right must also perform a duty then if animals are given the power to exercise a right then they must be competent to perform the duty.
But this raises lots of question in itself. Given that animals are incompetent to perform any duty and therefore unable to have any rights, what then about the newly born or the mentally sick person. They are incapable of performing their duty as well. Do they also not have any rights?
This is a very thought provoking question and was discussed by Gray in the chapter called legal persons where he talks about who are the subjects of law and what are the fictions in law?
After reading Prof. Gray's views on rights an duties I remembered reading about our Constitution in school. Among other things there was a phrase that was often repeated by our teacher:- "Fundamental rights and duties".
But according to Prof Gray a duty can exist without a right but a right can only exist with respect to a duty. The question that I am asking myself is a right truly fundamental? I will explain what I mean...
If right is co relative of duty. And if without duty there can be no right is it wrong to say that all rights are derived from duties? And if the rights are derived from duties can they be called fundamental?
Consider the right to equality before a court of law. Can I not put it another way and say that it is the duty of a court of law to treat every person as equal.
Similarly if I take the right to education then can I not say that it is the duty of state to not deny me education?
Can not all rights be replaced by the duties? And if so could it mean that the duties are essential and rights are just what follows.
Why then is the word right used when a duty could have been used to the same effect? Prof Gray himself admits that the word right is difficult to explain as it can have different meanings for ex: right as in not wrong.
The explanation that I have is that when you say that you have a certain right like the right of education the onus is upon the holder of the right to exercise that right or not. He can choose to exercise it or he can choose to waive it. But duties have to be fulfilled. There is no will in a duty.
The state for example can protect my right to education if it has been violated. But the state can not guarantee me education. The state only guarantees that if I choose to get an education then it can not be denied to me.
The onus of exercising my right is upon me. That much I understand. But why call it fundamental. The duty to defend my right education is essential. and my right is only implied. The duty to treat me as an equal in a court is fundamental and my right to be treated as an equal is only implied.
Or maybe I am wrong in my conclusion. Because if there were only fundamental duties and no rights then I would not be able to exercise them. Sure it is the duty of the state to protect my education but if I had no right could I then ask the state that I need my education to be protected?
I think I am just going in circles here. This chain of thought is pointless.