Anna Taitslin (ANU College of Law): On the origin of terms of Duty, Obligation and Right in Roman law and beyond: could ‘Duty’ and ‘Obligation’ be distinguished?
In De Finibus 3.20 Cicero introduced a notion of duty – officium – translating Greek ‘appropriate action’ (kathekon) that had the Stoic connotation. In De Fin 3.59 he distinguished perfect and imperfect duties, as did Ambrose in his De officiis ministrorum (1.11.36) and, much later, Pufendorf (who indebted to Grotius’ distinction b/w perfect moral quality – faculty, or right strictly [cf Pufendorf De officio 1.2.15], and imperfect moral quality - aptitude (De jure belli ac pacis 1.1.4-5).
Roman law texts used ‘officium’ referring to judicial office (G 2.219-20, 222; 4. 63,114). Roman law, instead, invented the notion of obligatio. This was defined as res incorporalis (incorporeal thing) and, as a right (ius) (G 2.14) in the sense of right in personam (against a person), differentiating it from right in rem - a servitude (such as the right of way).
Moreover, originally obligation was linked not with duty [as ‘actionable performance’] but liability [going back to the archaic contract of nexum]. Obligation was defined by Justinian (JI 3.13) as a bond/chain of right (iuris vinculum), retaining the link to the old meaning of obligation as personal subjection. Only indirectly Roman law developed the notion of duty [to perform]. In the civil law action to enforce obligation in personam, one claimed (G 4.2) that something ought to be given, done, answered for (Dare, Facere, Praestere Oportere).
Pufendorf, the 17th century natural lawyer, had linked absolute duty (officium) with perfect right and perfect obligation (De Offic. 1.6. 1,2,5). While Pufendorf did not explicitly delimitate b/w duty & obligation, he stressed the reciprocal nature of [perfect] obligation in contract (De Offic. 1.9.2,4).
Reciprocity of right and duty was also acknowledged by a 19th century positivist John Austin (1.5), who already distinguished primary & sanctioning rights and duties (2.44) (the latter denoted enforceability). Overall he used ‘duty’ & ‘obligations’ interchangeably (1.12), on occasion referring to offices (duties) as subset of obligation (1.14).
The idea of correlation of right and duty was taken on another level in the 20th century by in Hohfeld and HLA Hart. But did they distinguish ‘duty’ & ‘obligation’?
