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“Rights and Duties”
Prof. S. D. Bhosale
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Legal Concepts
(..6 b..)
Rights and Duties
QUESTION BANK
Q.1. Define the concept of Legal Right and explain whether Rights and Duties are
correlatives.
Q.2. Define the concept Legal Right and explain characteristics of a legal right?
Q.3. Define the concept Legal Right and explain kinds of legal rights.
Q.4. Define the concept Legal Right and explain how they can be enforced.
Short Notes
(i)
I) Introduction –
In a modern welfare and democratic state, every citizen requires rights apart from
Hohfeld’s analysis.
food, clothing and shelter. These rights are recognised and enforced by courts in every
civilised society. Without rights, man cannot live in a society with human dignity. Rights
are those social life conditions essential for developing human personality and helping man
be the best of himself. It is the function of the state to see that everyone enjoys his rights
equally and along with others. The state recognises, maintains and coordinates the rights
of its citizens.
II) Meaning and Definitions of Legal Rights –
Rights are broadly divided into two groups: moral rights and legal rights. Moral
rights are based on the ethical code of morality. Moral rights include all those actions and
forbearances which are our moral duty to perform. ‘Moral or natural rights’ means ‘an
interest recognised and protected by the rule of natural justice’. Moral rights are not
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supported by the law of the state. If a citizen violates moral rights, the law does not punish
him.
‘Legal rights’ generally mean ‘standard of permitted action by law’. A legal right is
a privilege enjoyed by a citizen as against his fellow citizens. The right is guaranteed and
upheld by the sovereign power of the state. The state regulates legal rights through its laws.
If an individual violates another person's legal rights, he is liable for punishment.
Examples: Right to property, right to speech, right to opinion and assembly, Right to vote,
right to be elected, right to the profession, trade, etc.
Various thinkers have defined legal rights as follows –
1) Salmond –
‘A ‘legal right’ is an interest recognised and protected by the rule of law. it is an
interest in respect for which is a duty, and disregard of which is wrong.’.
2) Holland –
‘Legal right is capacity residing in one man of controlling, with the assent and
assistance of the state, actions of others.’.
3) Austin –
‘A party has a right, bound or obliged by law, to do or forbear towards or in regard
to him’.
4) Allen –
‘A legal right is the willpower of man applied to a utility or interest recognised and
protected by legal system’.
5) Kohler –
‘A relation sanctioned and protected by legal order’.
In conclusion, we may say that a ‘legal right’ is any interest that is either vested or
created under a law or a contract.
III. Theories of Right-
There are following theories or views about rights, viz-
1) The will theory-
This theory is supported by Hegel, Kant, Humes, Holland and Austin. According to
this theory, rights emerge from human will. The theory further contends that the purpose
of the law is to grant an individual the means of self-expression or self-assertion.
According to Austin and Holland, ‘will’ is the main element of right. However, Dugit has
criticised this theory. According to him, the theory is anti-social. He is of the view that the
basis of law is ‘social solidarity and not individual will’.
2) The Interest Theory.
Rudolf Von, Ihering, and John Salmond propounded the interest theory. According
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to Ihering, the purpose of the law is to protect the interests of the citizens, not their will.
Salmond supports this theory. According to him, a right is an interest recognised and
protected by the rule of law.
Gray criticised the theory, saying it is a half-truth. He says that a legal right is not
an interest in itself but a protection of an interest.
3) Synthetic Approach.
An analysis of the ‘will’ and ‘interest’ theories shows that each reveals one of the
two important aspects of ‘right’, and the other explains the remaining. In other words, these
two theories are not opposed to one another but only a synthesis of the two, which explains
the concept of rightfully. Both elements, ‘will’ and ‘right’, are essential ingredients of a
legal right.
III.
Characteristics of legal rights.
Characteristics of legal rights are as follows.
1) Vested in a person-
A legal right is always vested in a person called the ‘person of inheritance’. The
person of inheritance is the owner of the right.
2) Operates against another person.
Legal rights always operate against some person who is called the ‘person of
incidence’.
The person of incidence has to obey or respect others’ rights.
In fact, ‘rights’ and ‘duties’ are two sides of the same coin; when there is a legal right in
one person, there is a corresponding duty cast upon another.
3) Obligation to do or not to do something.
Legal right obliges the ‘person of incidence’ to do some act or refrain (omit) from
doing something in favour of the person of inheritance. It is also called the ‘content’ of
right.
Thus, the creditor is entitled to the debt amount while the debtor is duty-bound (to act) to
repay it. Similarly, when one has a right to reputation, the other refrained (omission) from
disrespecting him.
4) Object of Right.
The act or omission relates to some ‘thing,’ i.e., the object or subject matter of the
right. Such ‘thing’ or ‘object’ or ‘subject matter of right may be tangible or intangible.
Thus, the person may have a right in the property (i.e. tangible) or ‘copyright’ (intangible).
5) Source of a legal right/ title
The Source of a legal right signifies certain facts or events due to which the right is
vested in its owner. It is a vestative fact. Thus, by purchasing property, becoming a citizen
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of a state, or by gift or mortgage, one becomes the owner of the right.
These incidences conferring ownership are also called ‘title’.
The above characteristics can be illustrated by the example that if ‘A’ purchases land from
‘B’, ‘A’ is the person of inheritance, and ‘B’ is the person of incidence. The content of the
right is that neither ‘B’ nor anybody else can disturb A’s peaceful possession of purchased
land, and the title/incidence by which ‘A’ has derived ownership of the right is ‘purchase’.
IV.
Kinds of Legal Rights-
Following are the kinds of legal rights-
1) Perfect and imperfect rights-
A ‘perfect right’ is a right which can be legally enforced which corresponds to a
perfect duty. The perfect duty is one which is not merely recognised by law but enforced
by it. A duty is enforceable when the action or legal proceeds will lie for its breach.
An ‘imperfect right’ is a right that, though recognised by law, is not enforceable. In
other words, the law recognises such rights for a specific purpose, but it does not enforce
them, i.e., no legal action for its enforcement lies. Time-barred debt is the best example of
imperfect right. By the Limitation Act, recovery of debt beyond three years is barred. Time-
barred debt is not recoverable by law.
Imperfect rights remain valid for all purposes except enforcement. Just as a perfect
right becomes imperfect, an imperfect right can also become perfect. For example, a debt
that is not received within the limitation period can become time-barred and consequently
not receivable, but if the debtor acknowledges it and agrees to repay it, it becomes perfect.
2) Positive and Negative rights-
A positive right corresponds to a positive duty. The positive right is the right which
requires a person under a duty to do some positive act for or on behalf of a person entitled
to it. Thus, if A purchases a car from B, he is entitled to possess it from B. In other words,
B is obliged to hand over possession of the car to A.
Similarly, a negative right corresponds to a negative duty. A negative right is that
which forbears a person under duty from doing some act or refraining from doing
something adverse to the person having the right. Thus, every person has a right not to be
defamed or injured.
Generally, a number of negative rights are much more than positive rights. Negative
rights are usually created by statute, whereas positive rights are created by contract.
3) Rights in rem and Rights in personam:
A right in rem is one that is available to the whole world. Such rights may relate to
tangible things such as land, building cars, etc., or may be related to intangible things such
as copyright, patient rights, etc. A right in rem is also called a ‘real right’. Rights in rem
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are countless. These rights are generally negative.
A ‘right in personam’ is one which is available against a particular person or group
of persons only. Right in personam is usually created by a contract. Such rights in personam
are generally positive rights. As soon as the right in rem is violated, it becomes personam
against the person who violates the right. Thus, not to be beaten is A’s right against the
whole world (i.e. right in rem), but as soon as B beats A, it becomes personam, and A gets
the right to prosecute B (i.e. personam).
4) Proprietary and Personal rights:
A proprietary right is the right of a person relating to his property. In other words,
it is a right which has economic significance. Thus, a person’s rights relating to his land,
building, car, gold, copyright, etc., are his proprietary rights.
Whereas ‘Personal rights’ are the rights which relate to a person’s status. Personal
rights correspond to personal duty. Thus, freedom of speech and expression, right to
reputation, right not to be beaten etc., are personal rights. Similarly, not beating, not
disrespect etc., are personal duties. Personal rights cannot be valued in terms of money.
Proprietary rights are transferable, whereas personal rights are not transferable.
5) Right in Re-propria and rights in Re-aliena:
The right in re propria is the right concerning one’s own property, whereas the right
in re aliena is the right possessed by one person relating to others' property. Thus, the right
over one’s own land is right in propria, but the right of way over others' property is right
in re-aliena. ‘Re-aliena’ is also called ‘encumbrance’. In India, we call them elementary
rights. The right in re-aliena limits the right in re-propria. Thus, one single property may
be the subject matter of both these rights.
The main right upon which there is encumbrance is called ‘Servient’ , and the
property subject to encumbrance is called ‘servient heritage’. Whereas the right of others
which is on servient heritage is called as ‘dominant.’ and the property for which benefit the
‘dominant’ right is given is called as ‘dominant heritage’. Thus, if A has the right of way
over his adjacent land, A is a ‘dominant owner’ and his property for which benefit he has
dominant ownership is called ‘dominant heritage’. Whereas B’s land is ‘servient heritage’,
and he is the servient owner.
The dominant owner’s right passes with property and is not attached to a particular
person. Thus, if A sells his landed property to C, upon which A has the right of way, the
right passes with property and is not extinguished by sale.
6) Principal and Accessory Rights
A ‘principal right’ is the main right or primary right vested in a person, whereas an
‘accessory right’ is a secondary, subordinate or additional right connected to a principal
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right. Thus, the right to a lake is a primary right, and the right of the fishery or the right to
water land is an accessory right. Similarly, the right to legal action is a primary right. But
the right to appoint an advocate for that is an accessory right.
7) Primary and Sanctioning Rights—
‘Primary rights’ are a bundle of rights which are the privileges enjoyed by
any person. These are rights in themselves, and they do not have their source in the
same wrong. E.g. person’s right to liberty, safety, reputation etc.
‘Sanctioning’ or ‘remedial rights’ are those rights which come into existence
after the violation of primary rights. Thus, one’s right not to be defamed is his
primary right, and the right to get compensation for defamation is a remedial or
sanctioning right.
‘Primary rights’ exist independently, while remedial or sanctioning rights
have no such independent existence and arise only on the violation of ‘primary
rights’. (For more details, refer topic “Administration of Justice”)
8) Legal and Equitable Rights—
Legal rights are recognised by the courts of Common Law, i.e. courts based on law,
whereas equitable rights are recognised by the court of Equity or Court of Chancery in
England. Legal rights are based on law, whereas; equitable rights are based on equitable
principles of justice, equity and good conscience.
9) Vested and Contingent Rights—
Right vests when all the facts have occurred, which must by law to occur in order
to the person in question to have the right. A right is contingent when some but not all of
the vestitive facts have occurred; thus, if any child takes birth in a Hindu family, his right
in property vests by birth. But if A transfers property to B for life and after his death to D,
the right of D is contingent upon the death of B.
10) General Rights and Special Rights-
‘General rights’ are the rights possessed equally by all members of society, e.g.
freedom of speech and expression, right of equality, right to vote etc. Special rights are
those that arise out of special transactions or special relationships between persons, e.g.,
contractual rights, right of maintenance, etc.
V. Enforcement of legal rights;
Legal rights are generally enforced in the following ways. Viz.
1) Damages:
The court awards damages or compensation to the aggrieved party in civil cases for
breach of legal rights.
2) Restoration of a thing:
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When the remedy in terms of money seems inadequate, the court awards restitution
of that thing to the person entitled (or person illegally deprived of possession of that thing).
3) Specific performance:
The specific performance of a contract means the specific enforcement of an
agreement as agreed upon between the parties.
4) Injunction:
Another method of enforcing legal rights is the grant of injunction as provided in
order 39 of the Civil Procedure Code and S. 34 to S. 42 of the Specific Relief Act.
By the grant of injunctions court orders the party to do or to abstain from doing an
act which is likely to infringe the legal right of the plaintiff.
VI. Rights in a wider sense:
The term ‘right’ is defined as “any
advantage or benefit conferred upon a person by
Power
Immunity
the rule of
law. The
Right
Liberty or
Privilege
definition is
generic, and
in fact, it
Liability
Disability
(Subjection) (No power)
covers
all
of
aspects
Duty
No-Right
connotations of rights such as power, liberty,
immunity, etc.
Hohfeld, an American jurist, has tried to separate and explain different concepts, i.e.
power, liberty, immunity etc., usually and generally used as “right”. According to him,
legal terms are to be properly and precisely understood. Therefore, he classifies the general
concept of “right” into (i) a strict concept of ‘right’ (ii) liberty or privilege, (iii) power, and
(iv) immunity. Generally, all these terms are understood as “right”. Hohfeld has dissected
the general or wider concept of ‘right’ into the above four specific concepts. He further
grouped these concepts into “jural correlatives” for better understanding. and “jural
opposites.”.
According to Hohfeld, jural correlatives of ‘right’ (in a strict sense) is a ‘duty’, of a
‘privilege/liberty’ is ‘no-right’, of a ‘power’ is ‘liability and of ‘immunity’ is disability’.
These concepts are related and stand together. The jural opposite of ‘right’ is ‘no-right’, of
privilege/liberty is ‘duty’, of ‘power’ is ‘disability’, and of ‘immunity’ is ‘liability’. In other
words, the ‘jural opposites’ mentioned above cannot stand together, which means when
one person has ‘right’, he cannot be said to have ‘no right’; similarly, when one enjoys
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liberty or privilege, he himself has no duty bound for the same act. Moreover, when one
has ‘power’, he is not ‘disabled’. When one has ‘immunity’ means there is an absence of
liability in him. Thus, these opposites cannot stand in one person. One cannot be said to
have ‘right’ and also ‘no right’.
Diagram
1) Right and duty-
Here, right is taken with a strict sense. The right, in a strict sense, implies correlative
duty. In other words, when there is a right in ‘A’ corresponding duty is imposed on ‘B’.
Thus, if ‘A’ purchases a house of ‘B’ for Rs. 5 lac, it is ‘A’s right to get the sale deed done
in his favour and ‘B’s corresponding duty is to make the sale deed of the house in favour
of ‘A’. If A has the privilege or liberty to sell his house to anyone he wishes, ‘C’ has no
right to compel ‘A’ to sell his house to ‘C’ only.
2) Privilege or Liberty and no-right-
‘Privilege or liberty’ is the freedom of a person to do or not to do something. In
other words, in the field of legal liberty, a person is left alone to act. Liberty is also called
a ‘privilege’ or ‘licence’.
3) Power and Liability-
A power is an ability conferred upon a person by the law to alter, by his own will,
the rights, duties, liabilities or other legal relations either of himself or of another person.
Thus, one has the power to make a will, to walk around his farm, a judge has the
power to pass a sentence against a convict, police have the power to arrest criminals, etc.
All these may seem ‘right’, but these are no ‘rights’ in the strict sense because there is no
corresponding duty in anybody.
The correlative of power is liability (or subjection). For example, when power is
vested in a police officer, the criminal is liable to be arrested. Similarly, everybody is liable
to obey the law.
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In other words, he is liable,326598, whose position can be changed by the person
having power.
4) Immunity and Disability-
Immunity denotes freedom from the power of another. It is an exemption from
others’ power. When one person is immune from the power of another, he is not liable to
that power.
Thus, in India, parliamentarians are immune to court attendance during parliament
sessions. Similarly, a foreign sovereign has immunity from the jurisdiction of the court of
the visited country. Moreover, the President of India cannot be sued for certain civil and
criminal wrongs (i.e., he is immune).
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