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2023
PERM UNIVERSITY HERALD. JURIDICAL SCIENCES
Выпуск 3(61)
Информация для цитирования:
Ustahaliloglu M. K. The Right Perception of the Concept of Right: A View Through the Prism of Obligations // Вестник Пермского университета. Юридические науки. 2023. Вып. 3(61). C. 415-427. DOI: 10.17072/19954190-2023-61-415-427.
Ustahaliloglu M. K. The Right Perception of the Concept of Right: A View Through the Prism of Obligations. Vestnik Permskogo universiteta. Juridicheskie nauki - Perm University Herald. Juridical Sciences. 2023. Issue 3(61). Pp. 415-427. (In Russ.). DOI: 10.17072/1995-4190-2023-61-415-427.
УДК 343.13
DOI: 10.17072/1995-4190-2023-61-415-427
THE RIGHT PERCEPTION OF THE CONCEPT OF RIGHT: A VIEW THROUGH THE PRISM OF OBLIGATIONS
M. K. Ustahaliloglu
Osmaniye Korkut Ata University, Turkiye
E-mail: mkustahaliloglu@gmail.com
Received 20 Jun 2023
Introduction: the concept of right, which is one of the fundamental concepts of legal science, cannot exist as an independent concept. It is sine qua non dependent on the concept of legal obligation that gives the former its existence and meaning. This is similar to the relationship between the concepts of stove and fire: even though fire can exist and have a meaning without a stove, neither the existence nor the meaning of a stove is possible without fire. Purpose: this article aims to thoroughly analyze the concept of right, instituted in order to provide benefits for legal personality-holding entities and protect them from potential harms that may come from other entities, which requires the protection of an interest (directly or indirectly related to at least one human being) by imposing a legal obligation (expressed either in a legal prescription to perform or in a prohibition against performing certain legal acts) on another being (directly or indirectly related to at least one human being). Conclusion: this study concludes that the concept of right does not exist in and of itself, but rather appears from the perspective of a legal personality-holding entity when a legal obligation has been established in its favor.
Keywords: right; liberty; assumption; perspective; obligation
ПРАВИЛЬНЫЙ ПОДХОД К ПОНЯТИЮ «ПРАВО»: ВЗГЛЯД ЧЕРЕЗ ПРИЗМУ ОБЯЗАТЕЛЬСТВ
М. К. Устахалилоглу
Университет Османие Коркут Ата, Турция E-mail: mkustahaliloglu@gmail.com
Поступила в редакцию 20.06.2023
Введение: понятие права, которое является одним из фундаментальных в юридической науке, не может существовать независимым образом. Оно находится в sine qua non зависимо-
© Ustahaliloglu M. K., 2023
сти от понятия юридического обязательства, которое обеспечивает первому его существование и придает ему значение. Это похоже на соотношение понятий печь и огонь: хотя огонь может существовать и иметь смысл без печи, существование печи бессмысленно без огня. Цель статьи - тщательный анализ понятия права, как института, установленного для предоставления благ лицам, обладающим правосубъектностью, и для их защиты от потенциального вреда, который может исходить от других субъектов, что требует защиты интереса (прямо или косвенно связанного хотя бы с одним человеком) путем наложения юридического обязательства (в виде предписания совершить или запрета на совершение определенных действий) на другой субъект (прямо или косвенно связанный хотя бы с одним человеком). Вывод: в исследовании делается вывод о том, что понятие права не существует само по себе, а скорее появляется с точки зрения обладающего правосубъектностью лица, в пользу которого установлено юридическое обязательство.
Ключевые слова: право; свобода; допущение; точка зрения; обязательство
Introduction
The concept of the 'person' is often considered to be strongly associated with that of the 'human being' because it originates from the human idea [13, p. 2076; 34, p. 445; 54, p. 92]. In fact, in the legal realm it is a reflection of the human being into the legal world either directly, by making him the 'natural person' of the law [31], or indirectly, through any other physical or hypothetical beings like corporations [34, p. 458] that are closely related to the human being. It grants legal life not only to humans but also to any other physical or hypothetical beings at the discretion of the lawmaker, much like the 'soul' gives biological life to a corpse. However, the crucial difference between these two concepts, from a legal standpoint, is that while the lawmaker has the power to create a hypothetical entity and grant it the legal personality status, physical beings (both human and non-human) do not need to and even cannot be created by the lawmaker [43, p. 644].
Legal personality can be obtained by any entity [6, p. 380], whether it is physical or hypothetical, which occurs in two distinct ways, respectively: hypothetical entities must first be created and then endowed with legal personality, whereas physical entities only require the attribution of legal personality to them. All persons, physical or hypothetical, are created by the law. The law also has the power to destroy any person in the legal realm, without affecting their physical existence, just as it creates them [46, p. 34]. This can be observed in cases such as slaves, embryos, and 'civilly dead' [8, p. 195; 40, p. 395; 39, p. 7] human beings, whose legal existence can be terminated by the law while their physical existence remains unchanged. The law thus has the authority to determine who possesses legal personality and the conditions under which it can be granted, revoked, or terminated.
Once a person is legally created or incorporated into the realm of persons, they become subject to the law; that is, the law has the power to impose its commands on them [23, p. 82; 21, p. 85]. This applies to all persons in the legal realm, including physical and hypothetical beings that have been granted legal personality
status. Once a person is recognized as a legal entity, they are obligated to follow the law and may be held accountable for any violations of it. At that moment, a person is just an object that is subjected to obey the commands of the law .
Now, with persons as its subjects on the one hand and the actions prescribed to be performed as its own will on the other, the law has established a system in which persons are supposed to engage in proper conduct toward one another. The ability of the law to regulate and control the actions of legal persons and to enforce its provisions through a range of legal mechanisms is due to the legal personality status as this allows the law to interact with persons in a structured and predictable way, ensuring that society functions in an orderly and equitable manner. At that moment, there is still no 'right' created yet.
'Right' is a concept that is used when a reference is to be made to the legal obligation of a legal personality-holding entity from the perspective of another legal personality-holding entity that benefits from that obligation of the former. That is, when a legally constituted entity, or a person, is under any legal obligation (which makes him the 'obligor'), and the entity to which the obligation is owed (who becomes the 'obligee') is also a legally constituted entity, the term 'right' is used to express the obligation of the obligor from the perspective of the obligee.
However, the absence of legal personality of the obligee only means that there is no right associated with that legal obligation, not that the obligation is not a legal one. In fact, legal obligations may be imposed on legal personality-holding entities only, re-
1 A person's being subjected to obey the law may emerge from: 1- the 'free will', i.e. 'consent' or 'autonomous commitment' of the persons, as in the 'social contract' [19], or 2- the 'influenced will', as in the promise, or threat of sanctions, i.e. rewards or penalties as a safeguard against refusal to conform to the law [25], or even 3 - the 'self-promise' [20]. In any case, as long as there is a state and the law of thereof, there is either boundness, i.e. obligation, or un-boundness, i.e. liberty, of the personified entity.
gardless of whether the obligee has legal personality or not. The term 'right' only implies that a legal obligation has been established in favor of an entity that also holds legal personality. The lack of legal personality of the obligee party to a legal obligation means that the obligation cannot be referred to as 'right' when looked at from the obligee's perspective, and in no way does it mean that the obligation is not a legal obligation when looked at from the obligor's perspective. Therefore, the term 'right' refers exclusively to 'legal' obligations that are established in favor of legal personality-holding entities; its existence and legitimacy are always dependent on the existence and legitimacy of an obligation.
To summarize, the concept of 'right' in the legal realm is tied to the legal personality status of the obligee, and its existence depends on the existence of legal obligations. When a person has a legal obligation, and the entity to which the obligation is owed is also a person, the term 'right' is to be used to express that very same obligation of the obligor, but only from the perspective of the obligee. If the obligee does not hold legal personality, then there are no grounds to refer to the obligation of the obligor as a 'right'. Thus, in either case, the legal obligation exists and has legal force. The key takeaway is that the legal personality status and legal obligations are the basis for the concept of 'right' in the legal realm, and the absence of the legal personality status for the entity to which an obligation is owed does not negate the existence or legal force of the obligation.
Assumptions Behind the Concepts
If there were an assumption like (Al): all [6, p. 380] entities ab initio have the legal personality status until they are deprived therefrom', a concept like 'excluded' would be used, instead of an inclusive term like 'person', to describe the absence of legal personality on an entity. This is similar to how individuals with restricted legal capacity are described as 'restricted' [51, p. 513], and how 'darkness' is used to indicate the absence of light and 'coldness' is used to indicate the absence of heat [35, p. 139]. In this case, instead of using the term 'right' to express a legal obligation imposed in favor of an entity with legal personality, a term such as 'non-right' or 'bare obligation' would have to be used to express a legal obligation imposed in favor of an entity without legal personality. In other words, it would only be necessary and meaningful to use a term like these when referring to a legal obligation imposed on a legal person in favor of an entity without legal personality as this would be an exception. Therefore, instead of the currently applied assumption that all entities are ab initio in the 'nonperson' legal status and only those having the legal personality status are 'persons', it would be necessary to assume the opposite: all entities are ab initio 'persons' unless they are expressly deprived of this status.
If having legal personality were a rule and not an exception, being a 'person' would be ordinary and not having it would be exceptional. In that case, it would be meaningful and necessary to indicate that the legal personality of an entity 'does not exist' rather than 'exists'. In such a situation, it would be correct to speak not of establishing a 'right' by creating a legal obligation to protect an interest belonging to an entity 'with' legal personality, but of establishing a 'non-right' by creating a legal obligation to protect an interest belonging to an entity 'without' legal personality.
The statement that 'X has a right against Z' is true only if both X and Z have legal personalities [22, p. 35], while for the statement that 'Z has an obligation toward X' to be true it is enough that only Z has legal personality. A right, therefore and in fact, always pertains to the legal obligation of an entity possessing legal personality, and the benefits produced by the fulfillment of this obligation are subjected to the service of another legal personality-holding entity. The fact of Z's being burdened with an obligation toward X does require having legal personality on the part of Z, but does not require that on the part of X. The fact that X has legal personality makes Z's legal obligation to be referred to as 'X's right' from the perspective of X. The obligation of Z will still be a legal obligation even when X does not have legal personality.
In short, the existence of a legal personalityholding entity is necessary and enough for the legislator to create a legal obligation, and once such an obligation is created, all is done. The concept 'right' is not created by the legislator; it is the human mind that creates it.
Meaning of Legal Obligations
Only the entities that possess legal personality can bear legal obligations [41], and whether the entity that benefits from the performance of that obligation also possesses legal personality or not has no effect on the legality of these obligations. That is to say, all legal obligations, whether established in favor of an entity with legal personality or not, have the same degree of binding force with respect to the legal persons who are subject to them.
Therefore, the only consequence of creating a legal obligation serving for the benefit of an entity that does not hold legal personality is that it cannot be referred to as a 'right' when viewed from the perspective of the obligee. However, the impossibility of making such a reference has no effect on the legality of the obligation in question. Because the classification of an obligation as 'legal' is essentially and only the result of its source being law [44, p. 128], and whether an entity that will benefit from the fulfillment of such an obligation holds legal personality or not has no positive or negative effect on the legality of such an obligation.
Likewise, of two legal obligations that deal with the same act and are imposed on an entity with legal
personality, one of which is toward an entity with legal personality and the other is toward an entity without legal personality, the former has no more weight than the latter. That is to say, whether an entity that is the beneficiary of a legal obligation has legal personality, like the obligated party, or not has no importance or influence on whether this obligation can be called a legal obligation or not. A legal obligation is the consequence of a bilateral relationship between the legal system, which is its source, and the legal personalityholding entity that is its counterparty. It does not matter whether the third party, which benefits from the performance of this legal obligation, has legal personality or not. Therefore, if such an obligation is established in favor of a third party that also has legal personality, and it can be called a 'right' when viewed from the perspective of such an entity, this does not mean that a new legal institution is created next to the legal obligation. Thus, a legal obligation imposed on an entity with legal personality is not fundamentally different from a legal obligation imposed on an entity without legal personality. For instance, a slave has every obligation toward its lord regardless of whether these obligations are named 'rights' from the perspective of the lord.
Rights as the Authority to Utilize the Benefits Deriving from Legal Obligations
The concept of 'right' can be illustrated with a simple analogy: it is like authorization granted to relevant persons to utilize the 'coolness' (benefit) provided by the 'shadow' (obligation) that is formed by the falling of rays (order and prohibition) originating from the 'sun' (law) on a 'body' (person). All non-person beings are deprived of such an authority due to not having legal personality and they benefit from the performance of legal obligations to which persons are obliged 'unwillingly', while a legal personality-holding entity -i.e., person - is endowed with the 'authority' to utilize such a benefit at his own discretion or at the discretion of another person acting on his behalf. In other words, the use of benefits provided by legal obligations established in favor of beings without legal personality is absolute; however, in the case of benefits provided by legal obligations established in favor of beings possessing legal personality, the use of these benefits by the relevant individuals is not absolute but is subject to their decision-making 'power' and 'privilege' granted to them.
Therefore, the principal (and perhaps the only) consequence of the concept of 'right' is the creation of the 'possibility of voluntarily renouncing' [5, p. 306] the opportunity to use the benefit in question. When it comes to utilizing a benefit that is ready to be provided by a legal obligation established in favor of an entity, the situation is different for those possessing and not possessing legal personality (i.e. for non-persons and persons): in the former case the use of such a benefit is ensured in an absolute manner for all beings, while in
the latter case there is no such absolute certainty, but rather uncertainty. It is possible for a person to choose not to use the benefit provided by a legal obligation established in his favor, just as it is possible for him to prefer to use it.
The assumption currently applied by the legislator (A2) goes like this: persons do not want to benefit from the opportunities established in their favor in principio unless they make an 'expression of will' in the opposite direction. This assumption is the reduction of the enforcement of legal obligations from actuality to potentiality and therefore might be called the 'opt-in' effect of the expression of will. If this assumption were to be reversed, then the persons would have to make an expression of their will in the direction of 'not utilizing', i.e. 'opt-out' of, these benefit protections, and as long as such an expression of will is not made, in principio, it would be assumed that (A3): they are willing to benefit from these protections.
A3: Silence Implies the Consent to the Benefit Protection
The assumption we are discussing hereby is not at all foreign to the law in and of itself. This assumption dominates the field of criminal law: investigation and prosecution are carried out independently of the request of the parties involved, except for some exceptional crimes known as 'complaint-dependent' [49, p. 55]. The most striking point here is that it does not matter whether the entity falling under the 'relevant' category holds legal personality or not. The only significant point is whether the executed act of the entity had been defined as a 'crime' and whether the executor entity holds legal personality or not. Thus, whether the violated benefit had been defined as a 'right' or whether the violated entity had been defined as a 'person' has no meaning or importance. The only important issue that matters is whether the entity that executed the action classified as a 'crime' holds legal personality and therefore has a legal obligation not to execute it. Astoundingly, it does not matter whether the prescribed legal obligation not to execute the 'specified-as-a-crime action' protects any interest of any entity. Apart from the fact that it may result in an unjust1 outcome, an action may be defined as a 'crime' in a way that cannot reasonably answer the questions of why and how, and hence, a person that have executed this action can be punished solely because of this [37, p. 475].
In our opinion, the situation should be the same in private law. Just as committing a crime is a breach of a person's obligation under criminal law, harming another entity's interest is a breach of a person's obligation under civil law. There is no distinction in terms of both the entity's possession of legal personality and the
i
'The injustice of a particular law does not automatically remove the reasons for obedience or alter the basic relationships that make obedience a matter of duty* [19].
legality of the obligation in question. Therefore, by holding legal personality, any entity becomes the subject of legal obligations imposed on them and, when breaching such an obligation, they should face the prescribed sanctions regardless of the corresponding entity's legal status. Their obligation arises from their own legal personality, and it is directed toward the entity, namely the state, that conferred this legal personality upon them, along with the associated legal obligations1.
Rights Burdened with Obligations
The impossibility for entities that do not hold legal personality to choose whether to benefit from the interest protections that are ready for their service or not makes them 'forced' to benefit from them as 'being deprived' of such 'freedom of choice'.
Such a compulsion is not actually a 'deprivation', but rather an 'easement', as it relieves them of the burden of 'demanding' what is in their favor. We think that the same situation should apply to entities that do hold legal personality, as they (i.e., persons) are considered superior to non-persons [54, p. 92]. It can be argued that if non-person entities are granted certain opportunities, then persons, who are considered superior to them, should also be given those opportunities equally, if not excessively. However, any requirement for persons to perform some certain actions (to express their positive will, for instance) in order to 'benefit from the interest protections established in their favor', even though they are referred to as 'rights' and presented as a 'privilege', can actually be considered as an 'obligation' that burdens the persons rather than as a benefit that they are granted. The requirement of expressing their positive will in order to benefit from the protections established in their favor proves that these so-called 'rights' are in fact 'burdens' for persons when compared to the possibility for non-persons to benefit from similar protections without any requirement.
Here are various examples of the problematic situations arising from the use of the term 'right' as a 'privilege'.
El. There exist two entities: one is a discerning adult who is not restricted of his legal capacity, while the other is an ownerless animal. In the event that both of these entities require medical intervention, the first entity (a person) cannot be treated without his consent as long as he is conscious and does not consent to medical treatment [15, p. 83], while the second entity (a non-person) can be treated even forcibly, if and when necessary.
Apparently, here comes a dilemma deriving from the 'right to bodily integrity' granted to human-persons, along with the 'right to be informed' ('or perhaps, more accurately, imposing a duty on doctors to
1 'A person subject to the law might therefore be conceived of as someone with a legal duty to obey legal norms: To be bound by the law is to subject to legal duties' [4, p. 256].
provide it' [10, p. 535]) and the 'right to give consent to treatment': on the one hand, human life is deemed to be of the utmost importance [26, p. 483], and thus it is generally accepted that this value should - in theory -be protected against everyone, however, in this case 'except the person who holds the right concerned'. On the other hand, the right to bodily integrity of the human-person, which aims at the protection of his life, becomes the main source of damage thereto. It becomes akin to taking the first step toward ending one's own life, i.e., suicide, while an animal, no matter how much it resists, can benefit from this protection [15].
The solution to this situation might be as follows: allowing human-persons to form connections that will enable them to integrate into society as well as preserve and develop their individual identities, rather than solely focusing on 'individuality'2. It is crucial to recognize the value of communal connections and promote their development as a means of ensuring the protection and development of individual identities. This can be achieved by emphasizing the importance of social formations, such as families, and encouraging individuals to blend and participate in society as a whole. This way - instead of the mottos like 'my body, my choice', which separate human individuals even from their parents, spouses, and children - human persons may see themselves as connected to the whole community in such a way that their existence is of utmost importance in the positive way while their absence - in the negative way. This means: although one's own self is the one closest to him, he is not the only one affected by the fate of his living. Therefore, no one is in a position to decide on the fate of his own life: just as he was not at the beginning of it, neither is he eligible to interfere with the fate of another's. Thus, the so-called 'right to live' is actually a reference to the appropriate authorities that empower a human-person so as to enable him to perform his 'right', which in fact is 'obligation to live' as 'the right to life cannot be linked with a desire to live' [50, p. 392].
E2. An adult with full legal capacity borrowed a large amount of gold from his neighbor and returned home with it. After putting the gold under his pillow and falling asleep, the person passed away without waking up. The gold, which was physically located under the deceased's pillow and actually belonged to the neighbor, was considered part of the deceased's estate until the moment before his death, after which it became the property of his heirs [7], along with all other assets, only with a duty to repay the debt. Even if everyone, including the heirs, knew that the gold had been borrowed from the neighbor, the only right that the
2 'The currency in juristic thought of an individualist conception of justice, which exaggerates the importance of property and of contract, exaggerates private right at the expense of public right, and is hostile to legislation, taking a minimum of law-making to be the ideal' [42, p. 457].
neighbor would have is to include his name in the list of creditors of the estate. The neighbor can only fully recover the gold borrowed from him if the estate is not bankrupt (bad debt), or if the heirs do not refuse to accept the estate. If the estate is bankrupt or the heirs refuse to accept the estate, the neighbor can only recover some of the gold but not all of it.
To prevent such injustices and similar ones, he/she should be provided with certain facilities in a manner that is beneficial to him/her, similar to the priority given to ship creditors [27], the privilege given to workers' wage claims [12, p. 198], the preemptive right given to co-owners in shared property [14], the preference right given to shareholders during capital increases [1, p. 1], and allotting of the family dwelling to the surviving spouse [53, p. 652]. New institutions should be established to prioritize the interests of individuals and provide them with similar advantages with regard to their property.
E3. Let us consider a case of a marriage between fourth-degree relatives, also known as 'cousins', which ended through a marital agreement approved by a judge. Because they did not make an alternative marital property agreement, the couple was subject to the legal marital property regime, and for them to divorce by mutual agreement (no-fault), they must agree on the division of property acquired during the marriage as well as on child custody and support if they have children [28]. According to the approved divorce agreement, one of the couple will take ownership of the house and the car acquired during the marriage and will pay some amount of money to the other.
Now: The judge, who - besides other necessary terms - examines the terms of the divorce agreement regarding the amount of compensation to be paid and the payment conditions, and approves their conformity with the state laws, can simply grant one party a 'claim right' and the other party - a 'payment obligation'. However, all this looks like being 'pregnant' with new legal actions and/or enforcement proceedings to be initiated before an enforcement agency if the debtor fails to pay the debt and then having a 'miscarriage', if cultural factors come into play again, as the ex-spouse, being awarded the right, will refrain from claiming the payment of compensation.
The current system, which is based on assumption A2, needs to be restructured as it places an unnecessary burden on the persons to repeatedly declare their desire to receive the compensation amount. Despite having already declared their desire to receive the compensation amount during the negotiation phase with their former spouses and then in front of the judge who approved the agreement, they are required to do so for the third time before a different state office in the case of non-payment. This burden, which in fact leaves them unprotected and vulnerable, is a result of assumption A2, and therefore this unnecessary obligation should be avoided along with the associated
'powers' that are created to overcome this. This is because the former state authority (the court), which deems the agreement to be acceptable, and the latter state authority (enforcement office), to which the claimant will have to apply in the event that the debtor fails to pay their debt, possess the same degree of public power, and therefore it is, or should we say 'should be', even possible to ensure that the debtors will pay their debt in the first place, for example, by guaranteeing the payment through various means, such as by ordering the deduction of a certain amount from the debtor's income and transferring it to the other party's account if the debtor is employed.
In fact, the purpose of presenting the agreement text, which emerged as a result of negotiations between the claimant and the debtor in a private setting, to the judge is to give it public power by confirming the reality and applicability of the statements of will contained in the agreement as well as to confirm that they represent the actual will [5] of the parties. Rather than simply take an abstract step of adding public power to an agreement that contains such statements of will that confirm their practicability in terms of the amount and payment method by means of a final decision, the judge could and should add such power to it with an interim decision and take further concrete steps toward its implementation. Thus, the claimants will not have to repeat their will to 'receive the payment' in front of other authorities. It should be assumed that their will, which they have already declared twice, is current even at the stage of taking concrete steps, and (unless they state otherwise) concrete steps should be taken, at the latest in the final decision.
E4. The Second Amendment, which was introduced in 1791 in the United States Constitution of 1789, states 'the right of the people to keep and bear arms'1. However, when interpreted correctly, this right is actually an 'obligation' to be fulfilled in order to ensure the safety and security of one's own, or of the society as a whole [16], although this is one of the primary objectives of the state's existence [9]. The simplest and most rational way to fulfill this responsibility of the state is to limit the carrying, possession, and use of firearms to state officials only.
It appears that individuals, when reading this provision as a statement of the state, will understand this as: 'although armed personnel of the state are available, you should take precautions for yourself'. In that case, anyone will be seen as a 'potential weapon carrier' and therefore perceived as a 'threat' for everyone around. Even if every act of arming oneself is considered a 'measure' that must be taken to address this threat, it will ultimately result in the individuals who fear of this threat to become a threat to themselves, whether intended or not.
1 For a detailed historical background of the right, see: [32].
These examples illustrate that the granting of certain powers to individuals under the guise of 'rights' that promise to protect their interests may not be sufficient to ensure the effective protection of such interests, and may even worsen the already difficult living conditions of persons. In such situations, individuals' expectations from their states are more likely to include concrete steps to protect their interests, rather than simply granting them certain rights. Therefore, the assumption that 'they may not want' (as in A2) should be replaced with that 'they may want' (as in A3), and concrete steps should be taken for a more effective protection of their interests without waiting for a demand, claim, request, petition, etc.
The Concept of 'Right'
If and when a legal obligation, which can only be borne by entities possessing legal personality, is violated and this results in damage to the interests of other legal personality-holding entities, then the lat-ter's legal personality mirrors the legal obligation of the former under the name of 'right'. In this sense, the 'right' is like the 'moon in the sky': its manifestation and even its meaning are only possible with the 'rays of the obligation sun'.
For example, it is impossible to grant someone the 'right to go to the moon' without imposing the obligation on another person to 'take the first person to the moon' or 'not to prevent them from going to the moon'. However, it is possible to impose the 'obligation to go to the moon' on a person regardless of whether another person's interests are involved in this trip. Another example that can be given about the impossibility of the existence of any right without an associated legal obligation is that the 'right of ownership', which is frequently classified as 'absolute', does not allow a claim against God if it is damaged due to natural disasters such as earthquakes, storms, floods, and water inundation, called 'Act of God' [29] because there is no legal personality of God [45; 52, p. 112] and therefore no legal obligation for Him to compensate for such losses.
In that case, classification of the right as 'absolute' can only mean that it concerns 'all entities with legal personality', in other words, 'all entities that can be burdened with the obligation not to violate relevant interests'. However, even this is not entirely possible because in some cases the interests associated with ownership are almost entirely eliminated. For example, real and personal property can be taken out of the ownership of a person, even against their will, through the processes of nationalization or expropriation [48; 36], even though with a compensation being paid.
The concept of 'right', which is seen not to be truly 'absolute', is even not a 'right' literally. In other words, a 'right' is never inherently present, because its existence is always dependent on the existence of another person and the legal obligation imposed on that person. It cannot be said that the existence of an entity
is real if that is absolutely dependent on another entity. The most explicit manifestation of the fact that owning something, which is commonly perceived as a 'right', in fact burdens the owner with obligations is the provision of Article 14 (para. 2) of the Basic Law of the Federal Republic of Germany, which is translated [3, pp. 6-7] as: 'Ownership entails obligations'. Therefore: 'It is true that an alleged right means nothing unless duties to fulfill it have been assigned to people upon whom someone can call on behalf of the right-bearer1' [47, p. 689].
The Concept of 'Freedom'
The word 'freedom' may be the closest meaning to the concept conveyed by the term 'right'. This is due to the Persian term - 43-which has the literal English meaning 'head-band', which means 'a signature or seal showing the binding effect of a legal document' and metaphorically means 'rein', or 'instrument for controlling a load by someone else' in its technical sense. However, this term is used to convey a meaning contrary to its actual and metaphorical meanings, namely 'liberty', 'immunity', or 'exemption'. The reason for this assigned meaning can be explained as follows: there is highlighted the legal bindingness of a document that provides a 'certificate of release from a headband', or the quality of a 'legal document' of creating an exception to the default status of 'boundness'. According to an alternative explanation, the 'bond', which had one end 'attached' at the head and the other end in the hands of another (the lawmaker), is now left to the person with both ends in their own hands. Thus, it can be said that a person who has been freed from bonds has been made capable of binding himself again through the actions he takes on his own.
Comparison of 'Right' and 'Freedom'
The most significant consequence of the possession of legal personality by entities is that these entities (persons) can subject themselves to legal obligations. Although the phrase 'gaining rights in their own favor' is often added to this consequence, the truth is that a person is not inherently capable of creating obligations that are 'in favor of them' on their own, unlike the case with obligations that are 'against them'. Imposing an obligation on a person that serves the interest of another person can only be created if the former assumes it on their own [18, p. 4].
In fact, when materialized in writing, an agreement, being one of the most common sources of obligations and meaning 'bond', 'tie', and 'knot', gets the name of a 'contract' and requires the parties to put a sign of theirs either in the form of a seal or a signa-
1 The term 'the owner of an obligation' is also used, as in: 'The only way in which the owner of an obligation can realize his ownership is by compelling its performance by the obligor' [2, p. 262].
ture. By sealing or signing the contract document, both parties express their will in a visible and tangible way to assume their own obligations, i.e., obligations 'of their own' and 'against themselves'. However, the seal or the signature of the latter party in sequence has no effect on the validity of the legal obligation that has been assumed with the seal or signature by the former party in sequence. In other words, the first party to sign the agreement states, 'By signing this agreement with my seal or signature, I accept to be bound with the above-written legal obligations that are against my interest, under the condition1 that the other party will also seal or sign under the legal obligations that are against their interest'. This means that the so-called right of the latter party has been created by the former party and vice versa. Thus, with the sealing or signing of the contract document, there is no 'gaining of a right in their own favor' but rather there is only 'burdening themselves with obligations against their own interest'.
The expression 'head-tied' is a common phrase in Turkish societies, particularly in the context of marriage, meaning either 'married' or 'engaged'. It indicates that the parties involved have accepted various legal obligations that are imposed upon them by the engagement. However, it does not imply that they have accepted the benefits arising from the obligations that have been imposed on the other party. The first step in a contractual engagement of the parties is the 'offer' or 'invitation'. The offerer party declares their willingness to be bound by the obligations that will fall on themselves [24, p. 50] and requests the other party to accept the obligations that will fall on their part. Persons can only impose obligations on themselves that are detrimental to themselves and advantageous to others, but not obligations on others benefiting themselves [21, p. 85]. Therefore, the concept of 'right' implies the reflection of a legal obligation borne by the obligor (promisor) on the obligee (promisee) as the one 'who holds the reins of the obligation' [18, p. 42].
On the other hand, there are situations that are called 'freedoms' but in fact they are neither 'freedoms' nor 'rights' and are just the names of some legal institutions.
Firstly: When these situations are evaluated according to the criteria of the widely used definition of rights, it is evident that they are not in fact rights. The 'right' can be defined as follows: legitimate benefits that are recognized as belonging to persons, violations of which are illegitimate (though possible), and that are protected by the use of public power when they are violated only if and when requested by the concerned persons. The criteria that can be derived from this definition are as follows: (1) 'an entity' that has (2) 'legal personality' and (3) 'an interest' that is (4) 'legitimate', any
1 If the condition is not met, the obligation of his promise will never come into existence [18].
(5) 'potential' (6) 'breach' of which is (7) 'illegitimate'; and when it is breached, there exists (8) 'protection' by the use of (9) 'public power' (10) 'upon the request of the concerned party' (11) 'against the violator'.
If we apply these criteria to the example of 'freedom of contract', it might be possible to meet the 1st, 2nd, 3rd, 4th, 9th, and 10th criteria, but not the 5th, 6th, 7th, 8th, and 11th. That is, the legislator may enact a rule which states that (1) that holds (2), in case of (3), may (which is 4) initiate a contract. At that point, before proceeding to the 9th and 10th criteria, the question of 'with whom?' arises, which is unanswerable because, according to the definition of the contract, at least another person's free will is required. If there were to be such a rule that attempts to take a step further and state that (12) - which in fact should follow (4) and thus take the position (5) - 'another person be the other party', this would not be a 'contract' anymore. This eliminates the 5th, 6th, 7th, 8th, and 11th criteria, leaving the public power and claim useless if not also meaningless. Therefore, it cannot be said that 'a person has a right to establish a contract'. If establishing a contract were to be a right, it could be said that it is possible to protect the interest of a person who wishes a contract to be established between himself and the second party who, in the case that he does not wish to establish a contract with the former and therefore could be characterized as 'negligent', would be forced to do so by the use of public power if necessary.
For instance, in sales contracts, except for cases of 'nationalization' and 'expropriation', there is no such protection provided against real estate or movable property owners who would be in the position of the second party. In other words, one can only bind their own free will with the 'headband' if there is a second person who is willing to hold the other end of the band or also bind their own free will to it. As stated before, it cannot be said that a being that is absolutely dependent on another being, that is, that exists not on its own, does not actually exist. Therefore, the concept of 'contract' cannot be considered as a right since it is dependent on another party's willingness to enter into the agreement.
Secondly: Only when both parties agree and willingly enter into the contract, can it be considered a true exercise of 'freedom'. Otherwise, it is merely a potential exercise of freedom that is not guaranteed or protected by law. The concept of 'freedom' in this sense refers more to the 'absence', rather than the 'existence', of a legal rule either ordering to perform or prescribing to refrain from performing an action [55, p. 122]. Thus, whether to perform an action that has not been prohibited is left to the persons' own discretion, that is, they may do so if they wish to.
The concept of 'right' also implies this same discretion in A2, according to which an individual 'may' benefit from the protection of a granted interest 'if they wish so'. However, here is the difference: the con-
cept of 'freedom' is related to the possibility of refraining from performing an action, whereas the concept of 'right' is related to the possibility of benefiting from a granted interest. For instance, the concept of 'freedom of contract' does not mean that a person has the possibility of entering into a contract whenever they want and under any circumstances, but rather that they have the possibility of 'not entering into a contract' if they do not wish to. On the other hand, such a concept of the 'right to contract' would mean that persons may benefit from the protection of the law when 'entering into a contract' if they wish to do so, even if under certain conditions.
This difference becomes more vivid in employment contracts, which, as a rule, contain neither the obligation to 'work' [38] for the employee nor the obligation to 'employ'1 for the employer. Although the employer does not have an obligation to secure his earnings by hiring employees, there is an obligation for spouses to financially support each other and for parents to support their children, to secure alimony [11]. If such persons are not granted a special authority, as in other cases of positive discrimination, in the case that they are unable to secure financial support in any other way than through employment, they cannot be considered as having a 'right to work'. Even in the case of granting such persons such a right, there can be no claim for protection unless an 'obligation to hire such persons' has been imposed on potential employers. Furthermore, even in the case of imposing such an obligation on such employers, there can be no guarantee that such persons will definitely work as there still exists the freedom 'from' working, which protects persons from being forcibly employed even though they would have a duty to work in order to secure financial support for their spouses and children. This situation is similar to that of the person in El who refuses medical intervention despite needing it.
On the other hand, the concept of 'contract' is a term defining the fact that there exists a bilateral will of at least two parties according to which they agree upon performing their own acts upon the performance of the counter-act by the counter-party. As a person's entering into a contract is 'binding his own head', it is in fact related to the status of 'boundness' rather than 'un-boundness', which makes it illogical to correlate it with the concept of 'freedom'. If these two concepts were ever to come together, that would be the 'freedom from contract' rather than 'freedom of contract'.
In conclusion: It is possible to say that these institutions, which are clearly not 'rights', are 'obligations' that ensure immunity or security from unjust interference by others. On the other hand, it is not possible to say that there is also a 'right' that corresponds to these obligations. The clearest example of this is the 'freedom to live': when a harm is caused to the interest that
1 For exceptions, see: [33].
is supposed to be protected by this freedom, the responsibility arising from the violation committed by the perpetrator will not be against the 'ex-person' whose interest is violated, as there is no claim for protection for the interest of living, since it is not reparable once it is breached; it cannot be considered a 'right'. Therefore, the obligation not to violate this freedom, although being explicitly against the owner of the freedom, is essentially and implicitly to the legislator; accordingly, the obligations that will arise after the event of a violation will be not against the owner of the freedom, but directly against the legislator and other individuals on its behalf. Therefore, in terms of the 'interest of living' there is no any 'right' - neither before nor after the violation - belonging to these individuals, but an 'obligation' that is essentially and only against the legislator himself in both cases - i.e., toward the person considered to be the holder of this interest before the violation and toward the 'relevant' other persons after the violation. These persons benefit from that obligation on behalf of the legislator.
Comparison of 'Right' and 'Obligation'
As legal theories say, either rights arise from obligations or obligations arise from rights, there is no third option.
In our opinion, there are various obligations that exist without depending on the existence of any rights, although the same cannot be said about rights as these only arise when there is a corresponding obligation. The most obvious example of this is the human-persons' obligation 'not to end their own lives'.
On the one hand, it is not possible to classify the benefit of 'living' or 'not living' as a 'right' as it is not subject to the power of disposal of any person. In a way, this obligation makes this benefit more than just a 'right' or a 'freedom'. If the opposite were the case, suicide or euthanasia would be considered legitimate if individuals waived these rights. Therefore, even the benefit that is classified as 'the most basic' [30, p. 6] cannot be called a 'right' but should be considered an 'obligation'. On the other hand, there is no bias in imposing another obligation on others, such as 'not preventing this human-person from fulfilling this obligation', which would mean creating a 'freedom from being killed'.
Thus, it is possible to state that all the rights, as well as some obligations, arise from obligations rather than obligations from rights. So much so that a legal text that only mentions rights may not exist without mentioning obligations, whether explicitly or implicitly, while a legal text that only mentions obligations may exist without mentioning any rights, whether explicitly or implicitly.
Although speaking about persons' rights may sound liberating and speaking about their obligations may sound binding, in reality the situation is quite the opposite. According to the principle of 'argumentum a
contrario', every 'acknowledgment of rights' also means 'prohibition of actions that are not mentioned as rights', and every 'imposition of obligations' means 'the freedom of actions that are not mentioned as obligations'. In this case, the listed rights and liberties - no matter how numerous they may be - will be fewer in number than the unlisted obligations, and the listed obligations - no matter how numerous they may be -will be fewer in number than the unlisted rights and liberties. This is because, when considering the infinite range of human actions, it is not possible for those mentioned as 'rights' to outnumber those that are 'not rights' and for those mentioned as 'obligations' to outnumber those that are 'not obligations'. This would bring one to realize and confess that: 'if I must attempt to conform to all of these obligations, that would seem a sacrifice great enough to add up to a supererogatory pattern of conduct - it would amount to a renunciation of an entire way of life, one whose permissibility most of us take for granted' [17, p. 147].
Only an individual who lives completely apart from any society would have the freedom to perform any action. 'But though this be a state of liberty, yet it is not a state of licence, though man in that state have an uncontrollable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature in his possession' [56, p. 4]. On the other hand, a slave who lives completely under the commands of a lord would have no rights, as whatever action they take is an obligation. If both of them were to have a constitution of their own, both of these constitutions would have not 'what they can do' but 'what they must do' (command) and 'what they must not do' (prohibition) written in them. However, while the former would be free to perform any action that is not commanded or prohibited, the latter would be forced to perform every action no matter whether that is written or unwritten. The obligations written in the former's constitution would be restrictive, while those written in the latter's would be numerous. If a slave were to be granted any rights, meaning if their master were obligated to perform or refrain from certain actions in favor of the slave, only then would such provisions be incorporated into their constitution, leading to an increase in their freedom as their master's obligations grow.
Therefore, the meaning and nature of obligations change depending on the perspective from which they are viewed. When viewed from a freedom-oriented perspective, the obligations mentioned are seen as 'mandatory restrictions on freedom' that must be only performed in exceptional, life-threatening-like situations, while when viewed from a restriction-oriented perspective, the rights mentioned are seen as 'mandatory freedom situations' that are 'allowed to be performed exceptionally for the preservation of re-strictedness'. This is just as the case with the Ten Commandments, sent through the prophet Moses,
which imply the freedom of actions outside of them. If the opposite were true, that is, if there were Ten Rights, it would imply that actions outside of them were prohibited.
Similarly, since no right can be granted exclusively to a particular person, any right remains valid for every person. This means that what is considered a right for an individual personally is transformed into a corresponding obligation for every other person living in the same society [22, p. 190]. This is because every right that someone else possesses also implies an obligation for the individual, at least in the form of 'not preventing the exercise of this right'. Thus, the increase in the number of actions considered to be 'rights' is perceived not only as an increase in the number of actions that an individual may perform but also as an increase in the number of actions that other members of the society may also perform, and therefore an increase in the number of actions that the individual must refrain from interfering with. In other words, while every right grants an individual the authority to exercise it and to make claims against anyone who violates it, it also imposes an obligation on the individual not to violate and allow others to exercise it.
Similarly, endowing persons with certain legal powers under the guise of 'rights' may seem to strengthen them, but in reality weakens them. When one person violates the legitimate interests of another entity in an illegitimate way, the first question asked is whether the entity whose interests were violated has legal personality. If so, then no intervention is made and the person is expected to make a claim for intervention, as in the case E1. In this case, the legal powers granted to that person, which are to be used either directly or through a representative but within the prescribed periods, turns into an 'obligation' for him or a 'barrier' between him and his interest that was meant to be protected. However, if the entity does not have legal personality, there would be no such barrier and the legal protection would be provided automatically.
If A3 were valid, the argument against granting legal personality to non-human entities would carry weight. In this scenario, whether a non-human entity possesses legal personality or not would be inconsequential in terms of holding a person accountable for breaching any legal obligation of him. Legal protection would automatically be provided, eliminating the need to grant any 'rights' or 'powers to demand legal protection'. Legislators and administrative authorities would focus solely on persons that violate their obligation of 'not to harm the interests of others', rather than on the entities that have had their own interests infringed upon the violation. If such a violation were discovered, the legal protection process could commence automatically without waiting for the expression of the desire for protection, as long as the desire of not to be protected is expressed.
Conclusion
The A3 perspective, which looks at an individual as the subject, i.e. the bearer, of the 'obligations imposed', rather than the subject (holder) of the 'rights bestowed' by law, would allow not only for the protection of beings that have legal personality, i.e. persons, but also for the legal protection of beings that do not have legal personality but are recognized as the owners of their own interests and are deemed to benefit from their own protection. This is because burdening an entity that holds legal personality with 'obligations' is a prerequisite of bestowing another entity that also holds legal personality with 'rights'.
The fact that a person has violated his obligations should be enough for holding him accountable, without requiring that the being whose interests have been violated should also hold legal personality and express its desire for legal protection. Such a requirement would worsen the situation for the being in need of protection and reduce the burden on the person with obligations. With regard to legal obligations that are to be borne by legal personality-holding beings, this would result in their reduction in quantity and quality while making such obligations only imposed in favor of beings that also hold legal personality and only enforceable upon the request of relevant parties, rather than being absolute. However, ensuring the absolute nature of legal obligations would be sufficient to truly protect the interests that are deemed to require protection. Thus, it would be seen that the 'right' is not a self-existing concept but a reflection of the legal obligation, which can be in the form of either 'order' or 'prohibition' imposed on a legal personality-holding entity in favor of another, but not necessarily a legal personality-holding 'real or legal entity'.
Hence the issue that needs further research is the presence of the 'right to perform' in obligations and the 'obligation to claim' in rights.
According to this, first: the 'obligation coin', which is in the obligor's hands, has the main obligation on the front face and not the obligee's 'right to claim' but the obligor's 'right to perform'1 on the rear face of it. This obligor's 'right to perform his obligation' is also due to the existence of the obligee's 'obligation to accept the performance', which is the rear face of the obligee's 'right to claim the performance'. If the obligee has a counter-obligation toward the obligor with regard to the obligor's main obligation, then the obligee also has an 'obligation coin' that also has two faces: the 'obligation to perform his counter-obligation' toward the obli-
1 Where the law imposes a public duty, there is an immediate inference that a liberty exists to give effect to the duty, in accordance with the maxim that 'what the law requires it also justifies'. In other words, 'must' includes 'may', for otherwise the subject of the law would be placed in the embarrassing position of having to break one or the other of the conflicting duties [55].
gor on the front face and the 'right to perform his counter-obligation' on the rear face.
Second: as A2 is in vigore, any right is coupled with the 'obligation to claim the performance thereof'. Therefore, not only the existence of the 'obligation of another person (obligor)' is required for the existence of a right but also is the performance of the 'obligation to claim' of the obligee in order to initiate the performance of the obligation of the obligor. However, in this case, the obligee's obligation to claim the performance of the obligor's obligation is not toward the obligor but toward the state authorities, which hold public power they can use. That is, the obligee demands the assistance of state authorities through his 'claim-right' (or 'claim-obligation'), which is very similar to pressing the activation button that initiates the state's performance of its protection obligation.
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Информация об авторе:
М. К. Устахалилоглу
Доктор права, кафедра коммерческого права Университет Османие Коркут Ата 80000, Турция, г. Османие
ORCID: 0000-0003-1554-5997 ResearcherID: ADR-3521-2022
Статьи в БД «Scopus» / «Web of Science»: DOI: 10.17803/1729-5920.2023.195.2.122-133
Sciences Journal]. 2019. Vol. 5. Issue 1. Pp. 54-64. (In Turk.).
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About the author:
M. K. Ustahaliloglu
Doctor of Law, Commercial Law Department Osmaniye Korkut Ata University 80000, Osmaniye, Türkiye
ORCID: 0000-0003-1554-5997 ResearcherID: ADR-3521-2022
Articles in Scopus / Web of Science:
DOI: 10.17803/1729-5920.2023.195.2.122-133
