ETHICS AND CRITICAL
THINKING FOR LAWYERS
ECTL 5111 2020
Warning: Students must not rely solely on these slides for assessment
preparation – the prescribed sources must still be consulted
Contemporary ethical
trends in society and
the workplace
LEARNING UNIT 4
Duties, rights and claims
THEME 1
Siphokazi is one of four candidate attorneys employed at a law firm
in Kimberley. Each candidate attorney is required to work on a
specific Sunday in order to prepare the necessary paperwork for the
next day. Thandeka, one of Siphokazi’s colleagues, was supposed to
work on the following Sunday, but she has a family emergency that
she needs to tend to in Durban, and thus she will not be able to
work. Siphokazi volunteers to work on Thandeka’s behalf.
Practical problem:
Do rights = duties;
Do rights = claims?
Suppose Siphokazi decides not to work the next time it’s her turn to
work on a Sunday.
◦ Do you think Thandeka has a duty to fill in for Siphokazi? Why /
why not?
◦ Do you think Thandeka has a responsibility to work on
Siphokazi’s behalf after she (Siphokazi) filled in for her? Why /
why not?
◦ Do you think Siphokazi has a right to compel Thandeka to work
on her behalf after she volunteered to work on Thandeka’s
behalf? Why / why not?
Do you think there is a connection between rights and
corresponding duties? Why / why not?
◦ If yes, in which circumstances do you think a right will give rise
to a corresponding duty?
Feinberg’s
classes of duties
1)
Duty of indebtedness
2)
Duties of commitment
3)
Duties of reparation
4)
Duties of need-fulfilment
5)
Duties of reciprocation
6)
Duties of respect
7)
Duties of community membership
8)
Duties of status
9)
Correspond with other’s
in personam rights
Duties of compelling appropriateness
Correspond with
other’s in rem rights
Don’t necessarily
correspond with
other people’s rights
10) Duties of obedience
Feinberg, J Rights, justice, and the bounds of liberty: Essays in social philosophy (2014) Princeton University Press: Princeton (hereinafter
Feinberg) 130-139.
Types of rights
RIGHTS IN PERSONAM:
RIGHTS IN REM
Also called personal rights in SA law
Also called real rights in SA law
Can only be claimed / enforced against a
Can be claimed / enforced against the whole
specific person
world (“world at large”)
Object of the right is a performance (positive
Object of the right is property (can be positive
act)
or negative)
Duties of indebtedness Duties of commitment
Duties of reciprocation
Duty = right (owing)
Duty = promise
Gratitude =/=
indebtedness
In personam
In personam
“I owe you one”
Positive act
Positive or negative
In personam
Two parties / offices
Promisor // claimant
(Claimant can be
promisee / beneficiary /
both / there can be a 3rd
party beneficiary)
Usually positive
Feinberg 130-134.
DUTIES OF STATUS
“Payment of one’s proper share to the general
economy of interests”
Not owed to anyone specific any more
Idea of coercion (required / obliged /
imposed)
Idea of liability (consequences e.g.
punishment or guilt)
Feinberg 135-137.
DUTIES OF COMPELLING APPROPRIATENESS
Duty in an extended sense
Not owed to anyone specific
E.g. “duty of perfection” or “duties of love”
Duties v Responsibilities
DUTIES
RESPONSIBILITIES
Liability
Liability and burden
No discretion
Discretion / authority
Feinberg 137-138.
“Claim” closely related to “need”
Claiming that one has a right: “is to assert in such a manner
as to demand or insist that what is asserted be recognized”
Rights as claims
‘to …’
For every right, there is a further right to claim
Two types of moral transactions:
Gifts / services / favours – gratitude
Dutiful action and omissions because of other people’s rights
– can be demanded / claimed / insisted upon
Feinberg 139-142.