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JURIDICAL CONCEPTS AND JURAL ANALYSIS

LEGAL RIGHTS AND DUTIES

INTRODUCTION

MEANINGS OF "RIGHT"; LEGAL AND MORAL RIGHTS

"Right” in the ordinary sense of the terms means a number of things, but it is generally taken to mean "the standard of permitted action within a certain sphere"1. As a legal

term, it means the "standard of permitted action by law". Such permitted action of a

person is known as his legal right. Here we are concerned with legal rights only.

A legal right must be distinguishing from a "moral or natural right". "A legal right is an

interest recognized and protected by a rule of legal justice - an interest the violation of

which would be a legal wrong, done to him whose interest it is, and respect for which is a

legal duty". "Moral" or "natural right" means "an interest recognized and protected by a

rule of natural justice - an interest the violation which would be a moral wrong, and respect for which is a moral duty"1.

The difference between the two lies in the sanction behind them. The violation of a legal

right is redressed by the state whereas behind the moral rights there are only moral and

social rebuke or disapprobation.

Prof. HOLLAND distinguished legal right from "might" and "moral right". About

"might" he says: "if a man by his own force, or persuasion can carry out his wishes,

either by his own acts, or by influencing the acts of others, he has the 'might', so to carry

out his wishes, either by his own acts,, or by influencing the acts of others, or by

influencing the acts of others, he has the 'might' so as to carry out his wishes".

About "moral rights" he says: "If the pubic opinion would view with approval or at least

with acquiescence, a person carrying out his wishes, with disapproval any resistance

' Shroter Oxford English Dictionary

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made to his doing it, then he has a 'moral right' so as to carry out his wishes". About

legal rights he says: "if irrespective of his having or not having, either the might or moral

right on his side, the power of the state will protect him in so carrying out his wishes, and

will compel acts such acts or forbearance on the part of other people, as may be

necessary in order that his wishes may be so carried out, then he has a legal right so to carry out his wishes1 2. A man may have a legal right to do some act which may be against

morals. But it does not mean that the legal rights are always opposed to morals".

The ethical or moral views of community influence the law in determining the conduct it

will protect and all the actions it will prohibit.

Principles of liability, in the last analysis, must be derived from the moral sense of the

community. Therefore, in most cases, moral rights and legal rights coincide and they

clash only in rare cases. Many jurists "positivists" are opposed to the idea of "natural

rights" and they do not regard it as more than a fiction or by a metaphor.

Briefly, the real credit of development of human civilization goes to law and its

prohibitive processes which oppnised man of his rights an duties towards one another. These rights and duties are regulated by the law prevalent in the society3. It is well

known that the main purpose of law is to protect human interests by regulating the

conduct of individuals in the society. For the attainment of this object, it is necessary that

state should make use of its physical force for the enforcement of legal rights and punish

those who violate these rights.

It therefore, follows that in all civilized societies law consists of those rules which

regulate human conduct and it is the state which enforce the rights and duties created b

such rules. The conception of right accordingly is of fundamental significance in modern

legal theory because rights are indispensable for all civil societies and are recognized and

enforced by the state.

1 SALMOND: Jurisprudence2 Prof. HOLLAND : Jurisprudence3 SUBHARAO G.D.: Jurisprudence(3r<1 Ed.) P.161

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While studying the conception of law, we noticed that SALMOND defined the term law

as consisting of the rules recognized and acted on by courts of justice. The object of the

administration of justice is the maintenance of safety and security of the people within the

state and the object is achieved by the cue of the physical force of the state in enforcing

rights and punishing their violation. The term "right" has, therefore, a fundamental legal

conception and requires a careful study.

SALMOND defines a right as an interest and protected by a rule of right. It is any

interest, respect for which is a duty, and this disregard of which is a wrong.

Before analyzing, the essential elements of a right it become necessary to define the

terms "wrong" and "duty" which are closely connected with it.

MEANING OF A "WRONG"

According to SALMOND a wrong is an act contrary to any rule of right or justice. A

wrong, in law, means violation of a legal right. A legal right is meant to be respected, the

disregard of it is a legal wrong., it is called injurist. If the violation of the legal right

causes any damage is called damnum.

Wrongs may be classified as

i) Legal wrong, and

ii) Moral wrong.

i) Legal Wrong means an act which is legally wrong and contrary to the rule of

legal justice and violation of the law e.g. non-payment of debts within the period

of limitation.

In other words, a legal wrong is a wrong that arises by violation, disregard or non-

observance of a legal right. Thus, to defame or assault somebody, to trespass on

another's land or to infringe copy-right, patent or trade-mark is a legal wrong. So

also the failure to pay debt under a contract or to deliver goods as promised or to

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render the agreed services is a civil wrong for which an action may be brought in

a court of law. Unless there is an infringement of right there cannot be a cause of

action. There can be no legal wrong unless there is a violation of a corresponding

legal right.

Whenever there is a legal wrong arising out of violation of a perfect legal duty

created under a perfect legal right, there is a cause of action, "ubi jus ibi

remedium" i.e. wherever there is a legal right, there is a legal remedy. The fact

that no damages has resulted from the violation of the legal rights, or the failure of

the legal duty to respect that right is immaterial, and a cause of may be because of

the injuria even though there may not be any damage. Thus, if A trespasses on

B's land, B can use A for nominal damages though B may not have suffered any

damage.

ii) Moral WRONG means, it is an act which is morally or naturally wrong, being

contrary to the rule of natural justice e.g. disobeying one's parents.

A legal wrong need not necessarily be a moral wrong, and conversely a moral wrong

need not be a legal wrong.

The infringement of a legal right is always a wrong, it being an infraction of legal

standards of fair and proper conduct.

In other words, a moral wrong is an act which is morally or naturally wrong, being

contrary to the rule of natural justice whereas a legal wrong, being contrary to the rule of

legal justice and a violation of the law. in simpler words, a wrong is a violation of legal

right "injuria"

"Injuria sine damnum.

It means legal injury without damage or infringement of a legal right without damage. In

the law of torts, a person is liable for his which violates another's right. If no one's right

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has been infringed, yet another has suffered injury, the defendant shall not be liable.

According to this maxim, if there is legal injury on account of the defendant, he shall be

responsible. Actual change is not essential in order to constitute liability. In other words,

an action does lie in cases for interference with another's legal private right even where it

causes no actual damage. Take the case of a trespass to land i.e. entry on the land of

another without lawful authority. It constitutes a tort without proof of actual damage.

Here we give the extracts from some leadng cases, following the maxim injuria sine

damnum-

ASBBYVS WHITE

In this case, the dependent a returning officer at a voting booth wrongfully refused to

register a duly tendered vote of the plaintiff, who was a qualified voter. The candidate

form whom the vote was sought to the tendered was elected, and no loss was suffered by

the rejection of the plaintiffs vote. The court held that nevertheless an action lay. The

action was allowed on the ground that violation of plaintiffs statutory right was an injury

for which he must have a remedy, and was actionable without proof of actual damage.

This ruling in English case, has been followed in India in the Municipal board of Agra vs.

Asharfilal. In this case it was held that if a voter's name is wrongly omitted from the

voter's list; he suffers a legal wrong for which a suit can lie.

DAMNUM SINE INJURIA

This is the reverse of the above maxim. Without the violation of a legal right, there

cannot be any liability in tort. Damnum sine injuria means that a damage without the

violation of a legal right is not actionable in a court of law.

Simply damage, however substantial without the infringement of a legal right, will give

no ground for action. The following leading cases will explain the maxim damnum sine

injuria.

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Glucester grammer school case (1411) YB II - the defendant of a school master set up a

rival school next door to the plaintiffs and the boys form plaintiffs school flocked to the

defendant’s school.

It was held that no action lay, as no damage was caused by a rival in the exercise of the

right to employ one self in one's calling without let or hindrance and freely competing

with one's rivals in the same calling, trade or business. But to stop the children from

going to that school by waylaying or intimidating them is illegal and an action would be

in the case.

UBI JUS IBI REMEDIUM

It is the general principle of law that the law will provide remedy for every wrong.

Literally the maxim "ubi jus ibi remedium" means that "where there is right, there is

remedy" its breach. In other words there is no wrong without remedy. The law of torts

has accepted this principle and consequently advanced remedy for each and every case.

According to the above mentioned doctrine, common law in England advanced remedy

for each and every wrong.

The case of Ashby Vs. White established for the first time the principle of "ubi jus ibi

remedium". In this case it was observed by the court that if a person ha a right he must,

of necessity, have means to vindicate and maintain in , and a remedy if he is injured in

the exercise or enjoyment of it and it is a vain thing to imagine a right without remedy.

Want of right or want of remedy was reciprocal.

The maxim supplies legal remedy in case of violation of legal right. On the basis of

maxim moral rights of the individuals Were not enforced. Similarly if a particular injury

was curtailed by the legislation, the maxim and the application. Moreover in its

application to the law of torts, this excludes the wrongs for which statutory penalty is

provided e.g. law of crimes. The maxim only means that legal wrong and legal remedy

are correlative terms and it would be more intelligible and correctly stated, if it were

reversed, so as to read "where there is no legal remedy, there is no legal wrong".

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The maxim is generally true to its full extent. In fact law of torts owes its origin and

development to the maxim, "there is no wrong without a remedy". There is, in law , no

right without a remedy; and if all remedies to enforce a right are gone, the right in point

of law ceases to exist.

According to POLLOCK : "wrong is in morals the contrary to right. Right action is that

which moral rides prescribe or commend, wrong action is that which the forbid. For

legal purposes anything is wrong which is forbidden by law; there is wrong done

whenever a legal duty is broken. A wrong may be described, in the largest, as anything

done or omitted contrary to legal duty, considered in so far as it gives rise to liability".

Hence the existence of duty, as it involves right, involves also the possibility of wrong;

logically no more than the possibility, though we know too well that all rules are in fact

sometimes broken. Duty, right and wrong are not separate or divisible heads of legal

rules or of their subject-mater, but different legal aspects of the same rules and events.

There may be duties and rights without any wrong; this happens whenever legal duties

are justly and truly fulfdled. There cannot, of course, be a wrong without a duty already

existing, but wrongs also create new duties and liabilities. Strictly speaking, therefore,

there can be no such thing as a distinct law of wrongs. By the law of wrongs we can

mean only the law of duties, or some class of duties, considered as exposed to infraction,

and the special rules for awarding redress or punishment which come into play when

infraction has taken place. There is not one law of rights or duties and another law of

wrongs. Nevertheless there are some kinds of duties which are more conspicuous in the

breach than in the observance. The natural end of a positive duty is performance. A

thing has to be done, and when it is duly done the duty is, as we say, discharged, the man

who was lawful bound is lawfully fret. We contemplate performance, not breach.

Appointments to officers are made, or ought to be, in the expectation that the persons appointed will adequately fulfill their official duties1"

' POLLOCK : Jurisprudence and Legal Duties, PP 37-38

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DUTIES

A duty is an obligatory act i.e. it is an act the opposite of which would be wrong. Thus

duties and wrongs are generally co-related. The commission of a wrong is the breach of duty and performance of a duty is avoidance of wrong1 2.

According to KEETON, a duty is an act of forbearance which is enforced by the state in

respect of a right vested in another and breach of which is a wrong. Every right implies a

co-relative duty and vice-versa

Duties are of two kinds, namely

1) Legal; and

2) Moral

!l Legal Duty

Means an act the opposite of which would be a legal wrong. The term is

synonymous with obligation, meaning liability to a legal sanction. It implies

some evil to be suffered on breach of a legal duty.

A legal duty is an act, the opposite of which is a legal wrong. It is an act

recognized as a duty by law and treated as such for the administration of justice.

nl Moral or Natural Duty

Means an act the opposite of which is a moral or natural wrong. A duty may be

moral but not legal or legal but not moral, or both at once.

SALMOND illustrates this by an'example. In England there is a legal duty not to

sell, have for sale adulterated milk whether knowingly or otherwise, and without•j

any question of negligence . Since this duty is irrespective of knowledge and

negligence, it is exclusively legal, and not moral duty.

1 SALMOND : Jurisprudence (12th Ed.) P.2172 The doctrine of constructive mens applies in such cases.

624

On the other hand, there is no legal duty in England to refrain from offensive

curiosity about one's neighbour, even if the satisfaction of it does them harm,

Here it is clearly a breach of moral duty and not of legal duty1. Not to steal is

both, one's moral and legal duty.

According to AUSTIN duties are of two kinds viz.:-

1) Absolute duties, and

2) Relative duties

AUSTIN says that a "relative duty" corresponds to a right. It is a duty to be

fulfilled towards a determinate person; while on the other side there are duties to

which there are no corresponding rights. He named such duties as "absolute

duties" and he said that there are four kinds of such absolute duties viz.-

i) Self regarding duties;

ii) Duties owed to persons indefinitely;

iii) Duties not regarding persons - i.e. the duties owed to God and lower

animals

iv) Duties owed to the sovereign.

Thus, there are two theories - one says that "rights and duties are co-relatives"

while there is other theory which says that there are "absolute duties".

Prof. ALLEN supports the view of AUSTIN and denies that there are co-relative

rights in the state. ALLEN say that a state, for example, compels children to go to

school, or to be vaccinated, prohibits the sale of certain drugs or alcoholic liquor,

or forbids the importation of animals which have not first been quarantined. He

asks where is the corresponding right? According to him the duties enforced by

the criminal law are absolute duties.

SALMOND : Jurisprudence (12th Ed.) P.217

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The view of AUSTIN is that "a sovereign government its collegiate or sovereign

capacity has no legal rights against its own subjects" and therefore the duties

towards the state are absolute duties.

Dr. ALLEN, MARKBY, and HIBBERT support AUSTIN. According to

HIBBERT, "the distinction between absolute and relative duties is logical and

convenient since it harmonies with the distinction between might and right".

The view of AUSTIN is criticized by GRAY, POLLOCK and SALMOND.

According to SALMOND, "there can be no duty without a right any more than

there can be a husband without a wife or a parent without a child". The result is

that rights and duties are always correlated and there is absolutely no scope for

absolute duties.

The views of POLLOCK is that "there seems to be no valid reason against

ascribing rights to the state in all cases where its officers are enjoined or

authorized to take steps for causing the law to be observed and breakers to be

punished". It is pointed out that the view of SALMOND is to be preferred to that

of AUSTIN because his definition of law is more in accord with modem juristic

ideas than that of AUSTIN.

According to PATON we cannot have a right without a corresponding duty or

duty without a corresponding right. When we speak of right we really refer to a

right-duty relationship between two persons and to suppose that one can exist

without the other, just as meaningless as to suppose that a relationship can exist

between father and son unless both father and so have existed.

According to HOHFELD, "duty" and "right" are correlative terms when a right is

invaded, a duty is violated. In other words, if X has a right against Y that he shall

staff off the former's land, the correlative "and equivalent" is that Y is under a

duty toward X to stay off the place.

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As we shall subsequently study, rights and duties and always correlative and

modem view seems to disregard altogether an absolute duty.

The law enforces the performance of a legal duty or punishes the disregard of it.

POSITIVE AND NEGATIVE DUTIES

A duty may either be positive or negative. When law obliges us to do an act, the duty is

called positive. When the law obliges us to refrain from doing an act, it is negative duty.

If a person owes a debt to another, he is under a duty to pay-off the amount of debt. This

is his positive duty. The performance of a positive duty extinguishes both duty and right.

The illustration of a negative duty is that if a man has a right to a land, others are under a

corresponding duty not to interfere with that man's exclusive use of land. Thus, a

negative duty is not capable of being extinguished by fulfillment.

PRIMARY AND SECONDARY DUTIES

Again, a duty may be primary or secondary. A primary duty is one which exists "per se"

and is independent of any other duty. For instance, to forbear from causing personal

injury to another is a primary duty.

A secondary duty, on the other hand, is one which has no independent existence of other

duties. For example, a duty to pay damages for the injury already done to a person, is a

secondary duty. A secondary duty is also called sanctioning or a remedial duty.

ABSOLUTE AND RELATIVE DUTIES

According to Prof. KEETON, a duty is "an act or forbearance compelled by the state in

respect of a right vested in another and the breach of which is wrong.

HIBBERT refers to absolute and relative duties. According to him absolute duties are

owed only to the state, breach of which is generally called a crime and the remedy

therefore is punishment. Relative duties are owed to any person other than the one who

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is imposing them, the breach of which is called a civil injury which is redressible by

compensation or restitution to the injured party.

AUSTIN also supports the view that certain duties are absolute, that is, they do not have a

corresponding right. For instance, duty towards God or state or a duty not to commit

suicide is absolute. A duty of kindness towards animals is also an absolute duty.

DR.ALLEN also supports AUSTIN'S view that a duty owed to the state is absolute and

there are no co-relative rights in the state. To quote his words, "a state compels children

to go to school, or to be vaccinated, prohibits the sale of certain drugs or alcoholic

liquors, or forbids the importation of animals which have not first been quarantined. In

such cases, the state has no corresponding right. Particularly, the duties enforced by

criminal are legal duties".

SALMOND, however, rejects AUSTIN'S concept of absolute duty. He says, "there can

be no duty without a right any more than there can be a husband without a wife or parent

without a child". Rights and duties are always correlated and, therefore, there is no scope

for an absolute duty.

Prof. GRAY also denies the existence of an absolute duty1.

DEFINITION OF LEGAL RIGHTS

We now proceed to study right in a some what greater detail. We have already studied

the definition by SALMOND and it will be useful to note a few other definitions of the

term by other authors.

When we use the term "legal right" the word "legal" qualifies "right". It is obvious that

there may be rights other than legal ones.-for example there are moral or ethical rights

why may or may not coincide with legal rights. It is in this sense that HOLLAND

distinguishes right from legal right. He defines right as "one man's capacity of

1 GRAY : Nature and Sources of Law, P.18

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influencing the acts of another, by means, not of his own strength, but of the opinions or

the force of society".

AUSTIN

About the definition and the analysis of the legal rights there is a great deal of difference

of opinion among the jurists. According to AUSTIN, right is a "faculty which resides in

a determinate party or parties by virtue of a given law and which avails against a party

or parties 'or answers to a duty lying on a party or parties' other than the party or

parties in whom it resides". According to him, a person can be said to have a right only

when another or others are bound or obliged by law to do something or forbear in regard

to him. It means that a right has always a corresponding duty. This definition, as it

appears on its very face, is imperfect because in this definition there is no place for

"imperfect rights".

HOLLAND

HOLLAND defines legal rihgts as the "capacity residing in one man of controlling, with

the assent and assistance of the state the actions of others". It is clear that HOLLAND

follows the definition given by AUSTIN.

SALMOND

SALMOND defines rights from a different angle. He says, "a right is an interest

recognized and protected by a rule of right. It is an interest respect for which is a duty,

and disregard of which is a wrong". The main elements in this definition as two: First,

"a rule of right" means a rule of law, or, in others words, that which is judicially

enforceable. Thus, according to SALMOND, a right must be judicially enforceable.

Second, a right is an interest. The elemelit of interest is essential to constitute a right. So far as SALMOND first element is concerned, it is a corollary to the definition of law1. In

laying down the second element he follows IHERING's theory of right which shall be

discussed later on in Ms chapter.

' See Chapter - Definition of Law

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Right was defined by IHERING as "an interest". It was said that this definition is very

wide because a person has no many interests but all those interests are not right. For

example, a beneficiary has an interest in trust property but it does become his right to

have trust properly. In another case a factory owner has an interest that his workers

should not go on strike but it does not become his right to check the workers from going

on strike for their just and legal demands as they have a right to proceed in strike if their

legal demands are not fulfilled.

Therefore it was said by IHERING that "right are legally protected interests" that means

only those interests become rights which can be protected by law. But this idea was also

not found workable because there may be an interest which is protected but that does not

become a right.

The term right has been defined by SALMOND as an interest which is recognized and

protected by rule of right. By rule of right here we mean the rule of justice. Further

explanation to this view is that right is an interest respect for which is a duty and

disregard of which is wrong. That means it must be such an interest which casts duty to

in some one else to respect under an obligation to do or to abstain from doing something

for the person ahs an interest. This is known as his duty. Thus rights and duties are

correlative terms; if one person as a right then there must be some other person in the

world who is under a duty or against whom such right is to be exercised. Further

explanation to the definition is that right is an interest disregard for which is a wrong. It

simply means that if that another person respects the interest of one person then it

becomes the duty of that another person but if that another person does not respect or

disregards the interest of that person, then it is said that he has committed a wrong or he has made breach of his duty and therefore" he should be held liable for that breach.

Thus, it will be clear from this discussion that right, duty and wrong all these three terms

are related to each other and we can conclude that right has following ingredients:

1) It is an interest.

2) This interest is recognized and protected by courts i.e. by rule of right "justice".

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3) This interest must be respected by someone else against whom interests is

claimed, then that person is under a duty. '

4) If this interest is not respected then the person who disregards it is said to have

committed a wrong.

In the words of SALMOND himself the interests which thus receive recognition and

protection from the rules of right are called rights. Every man who has right to anything

has an interest in it also but he may have an interest without having a right. Whether his

interest amounts to a right depends on whether there exists with respects to it a duty

imposed upon any other person. In other words a right is an interest the violation of

which is a wrong.

DUGUIT AND KELSEN

There are certain jurists who do not recognize the existence of any legal right. According

to them there is no such concept as "legal right". Prof. DUGUIT says that "no one has

any other right than always to do his duty".

Professor KELSON also says that there is no such conception as right in law. The

theories of law of these jurists negative the idea of rights. It is not possible here to

discuss the numerous definitions of right given by various jurists. It would be convenient

to classify the definitions on the basis of the main elements in them and to discuss them.

Prof. VINOGRADOFF observed that "right is a range of action assigned to a particular

will within the social order established by law... A right, therefore, supposes a potential

exercise of power in regard to things or persons ...when a man claims something as his

right, he claims it as his own or as due to him". The defintion, however, seems to be

unsatisfactory as it does not take notice of the elements of "recognition" andt

"protection" by the rule of justice which are-indispensable for a legal right.

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PROFESSOR PATON

Prof. PATON also agrees that one of the essential conditions of a legal right is that it

should be enforceable by the legal process of the state. He, however, mentions three

"exceptions" to this general assumption:-

1) It is not necessary that the state should always necessarily enforce all the legal

right. There may be cases when instead of enforcing a right, the state may redress

the wrong by getting compensation paid to the injured party.

2) There are certain rights which are imperfect by nature, that is they are recognized

by the law "state" but not enforced by it. For example, in a time-barred debt the

right of the creditor to recover the debt is an "imperfect right" because the debt

becomes legally irrecoverable after the expiry of the period of limitation prescribed by the law of limitation1. But if the debtor makes payment of

borrowed money to the creditors after the period of limitation, it would be legally

recognized as valid payment of debt and the debtor shall not have the right to

recover this amount from the creditor on the ground that the debt being time-

barred, he was not legally bound to pay it. Again, a time-barred debt can be

revived by any subsequent written consent even if no new consideration is

specified in the document.

3) There are certain laws which do not confer right of enforcement to the courts,

therefore their enforcement is not possible although they are recognized by law.

For instance, the international court of justice has no power to compel

enforcement of its decrees under the international law.

Chief justice DUGLUS HOLMES of the( supreme court of USA holds the view that right

is an inherent attribute of human will. ^Therefore right is, "nothing but a permission to

exercise certain natural powers and upon certain conditions to obtain protection,

restitution or compensation by the aid ofpublic force”. According to him legal right is

the power of enforcing legal limitation on conduct.

1 In the Indian Limitation Act, 1963 this period is three years

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Prof. GRAY says, "a legal right is that power which a man has to make a person or

persons do or refrain from doing a certain act or certain acts, so far as the power arises from society imposing a legal duty upon a person or persons"1 2.

i

The definition of "legal right" adopted by Dr.HOLLAND brings out the distinction

between right and might. It is sometimes said that "might is right" meaning thereby that

every right is the creation of might or power. Every right whether divine, legal or moral

rests on a relative duty on a party of parties other than the party in whom the right

resides. The relative duty would be duty if the law which imposes it were not sustained

by might. But a right is clearly distinguished from might in so far as a right is one's

capacity of obliging others to do or forbear by means not of one's own strength, but by

the strength of a third party, i.e. the state whereas might is the capacity of obliging others

to do or forbear by virtue of one's own strength.

MARTIN distinguishes legal right from a mere permission. Quoting an illustration he

observes, that it is erroneous to argue that a plaintiff workman had a right to do along

with the path across which the machinery was erected for he was a workman employed in

the dockyard and had liberty to use the water closet, because in fact the plaintiff-

workman had only the permission to use the path. If a man enters another man's land

with his permission, he does so by virtue of a license and not of a right.

The eminent French jurist DUGUIT is opposed to the view that the basis of a legal right

is human will. He argues that all laws originate from social solidarity hence there is no

existence of a right as such DUGUIT believes that human will is opposed to social good

because it always leads to conflict of interests between individuals. Therefore there is no

place of the concept of right in the society. Law being an expression of social solidarity,

demands that every one should abide by his duties and has no right to claim rights.

DUGUIT rejects the concept of right as immoral and against the interest of the society.

1 GRAY : Nature and sources of Law P.182 PATON : A Textbook of Jurisprudence,P.222

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DUGUIT's view of absence of right has, however, been vehemently criticized by many

writers. According to HAROLD LASKI, DUGUIT's theory of right rejects the existence of any subjective right and not the "de facto" right1. Rejecting DUGUIT's views abut

legal rights.

Dr.EDWARD JENKS writes that undoubtedly, the main function of the state is to ensure

enforcement of duties, but after al these duties are enforced for protecting the interests of

the people. In other words, when a person wronged approaches the state to punish the

wrong doer for committing the breach of this duty, it implies that the wronged person has

the capacity to compel the wrongdoer to perform his duty, which is called a "legal right"2 3.

Some jurists notably BUCKLAND, IHRING and SALMOND suggest that a legal right is

an interest or an expectation guaranteed by law. For POLLOCK "right is a freedom

allowed and power conferred by law". According to T.H.GREEN, "rights are powers

which it is for general well-being that the individual should possess". KANT believes

that "right is the authority to compel".

INDIAN SUPREME COURT

The supreme court of India has defined legal right in State of Rajasthan V. Union of

India" wherein it is observed:

"In a strict sense, legal rights are correlative of legal duties and are defined as interests

which the law protects by imposing corresponding duties on others. But in a generic

sense, the word right is used to mean an immunity from the legal power of another,

immunity is exemption from the power of another in the same way as liberty is exemption

from the right of another. Immunity, in short, is no subjection".

1 LASKI: Duguit's Conception of the State in Modern Theories of Law, P.522 JENKS EDWARD : The new jurisprudence, P.I763 AIR 1977, SC 1361

634

THEORIES OF LEGAL RIGHT

In connection with the definition of rights, there are, however, three theories which need

a consideration.

1) Firstly, a right is legal because it is protected or at least recognized by a legal

system.2) Secondly, the holder of a right exercises his will in a certain way, and

3) Finally, that the will is directed to the satisfaction of certain interest.

Although, all of these theories that is, protection , will and interest, have been upheld

inevitable to a truer description of a right, many disputes, however, have arisen due to a

false emphasis either on the will or on the interest.

U Protection Theory of Rights

Since the characteristic feature of a legal right is its recognition by a legal system,

enforceability by a legal process, therefore, may be stated to be an indispensable

condition of a legal right. But this statement may not escape the following

qualifications.

a) First, that the law should not' always enforce a legal right; it may, but grant the

injured party only a remedy or damages

b) Secondly, there are certain imperfect rights which the la only partially

recognizes.

For instance, a statue barred debt cannot be recovered in a court of law,

whereas for certain purposes the existence of the debt posseses legal

importance. If the debtor paid the money, he cannot thereafter sue to recover

it as money paid without consideration; and the imperfect right has the faculty

of becoming perfect, provided the debtor makes an acknowledgement of the

debt from which there can be deduced a promise to pay. But the creditor has

no claim for the money, the debtor is at liberty to pay or not to pay the time

barred debts, but once he has paid it, he has no claim to recover, since the

635

"natural obligation" restrains him from bringing an action for money had and

received. The law has indeed chopped off creditor's right to the receipt of

voluntary payments though in specific situations, that is, promise to pay, the

imperfect right may become a perfect one.

c) Thirdly, in certain legal systems courts of justice do not control and adequate

machinery for enforcement, as in case of international law there is no power in

the court to enforce its decree. It lacks certain important features, such as

courts with compulsory jurisdiction and institutional methods of law enforcement1. Hence the answer to the question whether the essence of a

legal right in its "enforceability" will rest on the definition of law.

Professor DICEY made the distinction between law and constitutional

conventions and pointed out that the test of the former being that they are enforced by the courts, whereas conventions are not enforced by courts2. The

distinction appears to be plain and unambiguous, but it is by no means free

form difficulty.

Accordingly JENNINGS has remarked that "if we apply rigorously the test of

enforcement in a court of law, we are left with too narrow a view of constitutional law"3.

Owing to the difficulties that have arisen, very off and on, in the enforcement

of certain rights, it has been thought better to define a legal right in the terms

of recognition and protection by the legal order, or by the rule of right. It is an

interest, the violation of which would be a wrong and respect for which is a duty4. This definition involve here two points

1 SALMOND : Jurisprudence (12th Ed.) P.562 DICEY : Law of the Constitution, (9th Edn.) P.233 IVOR JENNINGS : The Law of the Constitution, (3rd Edn.), P.3144 SALMOND : Op. Lit 12,h Edn. P.218

636

1) Firstly, that right is an interest,

2) Secondly, that it is protected by a rule of law.

This, however, does not necessarily curtail the meaning of legal right, for an

international court would recognize any rights granted by international law

and protect them as far as it could, even though there is no specific machinery

for direct enforcement. The element of enforceability is significant in

questions of jurisdiction and private international law. The principle of

effectiveness should be considered, since it is absurd for a court to make a

decree that is wasteful. Thus, an English court will not make a decree relating

the title to immovable situated abroad and even if a defendant falls under the

English jurisdiction, equity will not permit him to do an act which is illegal by the law of the land where it is to be performed1.

21 Will Theory of Rights - Will as the Basis of Right

This theory says that the purpose of law is to grant the individual the means of

self-expression or self-assertion. Therefore, right emerges form the human will.

In other words, the will-theory of rights has been upheld by many on the ground

that since the very objective of law is to grant the widest possible means of self-

assertion i.e. the maximum of individual self-assertion, rights, therefore, on this

notion are nothing but only inherent attributes of the human will. The mental attitude of claim or of demand is the historical basis of rights2.

The will theory so extended by the doctrine of natural rights, which declared that

there are certain spheres of personal life with which tire state could not legally

interfere, is, indeed, grounded on a confusion of what is and what ought to be.

1 PATON : Op. Lit., P.2872 VINOGRADOOF : The Foundation of a Theory of Rights, in Coilected Papers, II Page -367

637

For there are certain rights which it is desirable that the law should protect, but

that does not prove that they are protected by the law, nor that any law that

interferes with them is invalid. But this does not mean to suggest and think of law

as, crediting rights out of nothing. After all, law exists to reconcile the competing

and conflicting claims and desires of society, and some parties of the will-theory

only state that the law should protect the individual will as far as possible.

Since rights have been termed by many1 as inherent attributes of human will, they

have found adequate support from HOLMES, who defined a legal right as

"nothing but a permission to exercise certain natural powers and upon certain

conditions to obtain protection, restitution, or compensation by the aid of the public force.2" But this is not quite true, for there are certain rights or claims

which do not consist of a liberty to do something but only of an ability to compel

others to do an act.

The definitions of right given by AUSTIN and HOLLAND lay down that the

"will" is the main element of a right. According to AUSTIN, right of a person

means that others are obliged to do or forebear from doing something in relation

to him. AUSTINIAN conception of right is obviously based on sovereign power

of the state. Likewise, AUSTIN defines duty of an obligation the breach of which

is punishable because of the penal sanction attached with it. Justice HOLLAND

of USA pointed out that a legal right is nothing but a permission to exercise

certain natural powers to obtain protection under certain conditions. It has the

support of public force for its protection, substitution or redress by compensation3.

*

POLLOCK and VINOGRADOFF also define rights in terms of "will". A strong

support to the theory has been given by the doctrines of natural rights and by the

jurists who have made metaphysical approach to law.. VINOGRADOFF considers

1 For example, see Kant, Hegel, Hume and Locke2 HOLMES : The Common Law, P.2143 DIAS & HUGHES : Jurisprudence, P.250

638

that psychology by asserting claim is the basis of legal right. In a social order

established by law no man absolutely is free to act as he likes, but his freedom of

action is restricted due to rights of others.

LOCKE believed in "inalienable" rights. He declared that in certain spheres of

individual life the state could not interfere. According to him, the basis of the

right was the will of the individual.

HOLMES in his definition of right puts the same view more clearly. He defines

legal right as nothing "but a permission to exercise certain natural powers and

upon certain conditions to obtain protection, restitution, or compensation by the

aid ofpublic force".

The theory has also been accepted by historical jurists of Germany.

PUCHTA observed that a legal right is a power over an object which by means of

his right can be subjected to the will of the person enjoying the right.

DUGUIT suggests that will is not an essential element of a legal right or law. The

real basis of law is social solidarity. He calls theory of subjective right as a mere

metaphysical abstraction.

METAPHYSICAL JURISTS

HEGEL, KANT, HUME and others say that by right is meant the power of self­

express or "will". The will theory had its greatest supporters in Germany. The

German jurists of the historical sfchool also supported the "will" theory.

PUCHTA defined legal right as a "power over an object which by means of the

right be subjected to will of the person enjoying the project".

639

WILL THEORY CRTICISED

DUGUIT is vehemently opposed to the "will" theory. According to him the basis

of law is the objective fact of "social solidarity" and not the subjective will. The

law is to protect only those acts or rights which further "social solidarity". The

idea of will is anti-social.

The "will" theory has been criticized on other grounds also. Those who greatly

emphasize the element of will confuse the fact with abstract ideas, that is, they do

not make the distinction between "what is" and "what ought to be". It is

submitted that "will" is an important element of right. It is an important factor in

the determination of rights. The purpose of law is, more or less, to make a

compromise between the conflicting "wills" of the individuals in the society.

Secondly, the law does not create rights from a vacuum but to a great extent it

picks and chooses them from the wills of the individual. The law respects the

wills of the individuals but curtails them to the extent to which it is in conflict

with the wills of the other individuals or is in conflict with the social interest in

general. It is due to these reason that PATON says that "will is an essential

element in the general conception of legal right, but it is not the only element".

3)_ Interest Theory of Rights

INTEREST IS THE THEORY OF RIGHT

Interest theory of rights is popular theory regarding the nature of legal right is called the "interest theory1" which was mainly propounded by the German jurist

IHERING. In his "spirit of Roman law" IHERING defined rights as legally

protected interest. IHRING does' not emphasize on the element of will in a legal

right. He asserts that the basis of legal right is "interest" and "not will". The main

object of law is protection of human interests and to avert conflict between their

individual interest. These interests are not created by the state, but they exist in

the life of the community itself. The state only chooses out of them such

1 IHRING Geist des romichen Reghts, iii, P.332; see also Hallis, Corporate person P.169

640

interests, as it will protect. This view of IHBRING is supported by SALMOND

also, but the latter adds enforceability, to it as a necessary element.

In his "law as a means to an end" he pointed out, that a person can be said to have

a right only when there exists for him some advantage which is protected by the

state.

SALMOND has criticizes IHERING's theory on the ground that it is incomplete

since it completely overlooks the element of recognition by the state. A legal

right should not only be protected by the state but should also be legally

recognized by it. He cites an example to substantiate this view. The interests of

beasts are to some extent protected by law in as much as cruelty to animals is a criminal offence1. But beasts cannot for the reason be said to possess a legal right

of not being treated with cruelty. SALMOND treats the rights to protection of

animals from cruelty merely as a moral right.

Prof. GRAY was greatly impressed by SALMOND's view about legal right. He,

however, held that the interest theory was only partly true. He emphasized that a

legal right is not an interest in itself but it is only a means to extend protection to

interests. He considers legal right as that power by which a man makes other

persons do or refrain from doing a certain act by imposing a legal duty upon them

through the agency of law "state". Thus for example, if a man lends some money

to another, the right of the creditors to recover his money from the debtor is, in

reality, not his legal right but it is rather a power conferred on him by law by the

exercise of which he recover the debt. In other words, the creditor's interest to get

back his money from the debtor fs protected by law but this interest is not a legal

right in itself, it is rather his object. It is the power conferred on him by law to

recover the money which is the legal right.

DIAS & HUGHES : Jurisprudence, P.250

641

According to BUCKLAND, a legal right is "an interest or an expectation granted

by law".

PATON defines a legal right in terms of recognition and protection by the legal

order. According to him, although enforceability by legal process is said to be a

necessary condition of a legal right, yet there are three qualifications to the above

statement. Law does not always enforce a right and the injured party is guaranteed

merely damages. There are certain imperfect rights which are recognized by law

only partially. A time barred debt cannot be realized through the agency of courts

as it is an imperfect right, but if the creditor come to have the money in some

way, he can adjust the same towards the debt and need not return the same.

Likewise, a time-barred debt may be revived if the debtor acknowledges the same.

In certain cases, the courts of justice do not have an adequate machinery to

enforce their decisions. This is particularly so in the case of international law.

Dr.ALLEN has attempted to reconcile the two theories by pointing out that the

absence of legal right seems to be, not legally guaranteed power by itself nor

legally protected interest by itself, but the legally guaranteed power to realise an

interest. Thus, a sound theory would be to consider both the elements of "will"

and "interest" as essential ingredients of a legal right.

The totalitarian view completely denies the existence of legal rights. They argue

that state being omnipotent, individual has no separate existence from it.

Therefore, in fact al right belong to the state and the individuals do not have any

independent legal right as such. This view has, however, been rejected being far

from reality in the modem context of democratic welfare state.

ARGUMENTS IN FAVOUR OF INTEREST THEORY

The main argument given in support of the "interest" theory that the "interest"

and not the "will" is the basic element of right is that there are cases where a

person may have rights without having any "will".

642

Infants, lunatic and corporations have legal rights but they do not have wills. In

such cases, in the name of right their interests are protected. Though this

argument is not very sound., because in all these cases a will is operative, that is,

of the guardian of the infant, or the lunatic, or of the members of the corporation,

it has some truth.

An analysis of both the theories, that is, "the will” and "interest" theories, would

however, reveal that they are not so much opposed to each other.

Prof. PATON has pointed out, "in truth it is an exaggeration to set interest" and

"will" to much in opposition to each other.

An analysis of both the theories, that is, the "will" and "interest", theories, would,

however, reveal that they are not so much opposed to each other.

Professor PATON has pointed out, "in truth it is an exaggeration" to set "interest" and "will" too much in opposition to each other1. One exaggerates the

one element and the second the other element. It is only the synthesis of the two

that can provide a clear picture. The human will does not operate in "vacuo" but

desires certain ends, and interests are nothing but object of human desire. An

interest, is thus, a claim or want of an individual or a group of individuals which

that individual or group wishes to satisfy. And the law grants rights not to the

human will as an end in itself, but to a human will that is pursuing ends of which

the legal system approves. Rights, therefore, on this analogy mean nothing more

than the legal protection and recognition of human will be directed towards the

satisfaction of certain interests. The remarks made by ALLEN in this regard are :

"the absence of legal right seems to me to be not logically guaranteed power by

1 PATON : Op. Cit, P.289

643

itself, not legally protected interest by itself, but the legally guaranteed power to realize an interest"1,

LUNDSTEDT, the most extreme member of the Scandinavian school, regarded in

a right simply the favourable position enjoyed by a person in consequence of the

functioning of the legal machinery. A judge should think in terms of social aims, not of rights2.

The main objection of this is that everything depends on why the courts viewed

on person's position favourably. This is because of a right. It happens, too, that a

person has a favourably position by virtue of a right even though it is socially•3

undesirable that he should do so .

There are other writers too, who have sought to discover some test for the

existence of rights which is not exterior but interior to tire law. Besides HOLLAND4 5 and GRAY3, who explained rights in the sense of ability to enforce

the correlative duty, the most extreme thought put forward is that of Dean

ROSCOE POUND. The expression "right" which is a juristic concept as

distinguished from legal concept, is according to Professor POUND the most

ambiguous word in the legal as well as in the juristic literature. Since as a noun it

has been used in various sense, right, therefore, according to POUND becomes a complex of rights, interests and values6.

Professor K.N.LEWELLYN too, has remarked in his work that he saw no value to

be gained from the interests - rights and rules - remedies set up except to bring out

to underscore that law is not all, rior even the major part of society.

1 ALLEN CK: Legal Duties, P.1832 See, DIAS, Jurisprudence (1964) P.221; Also superstition or rationality in action for peace, P.l 183 Bradford Corpn. V. Pickles, (18950 A.C. P.5874 HOLLAND : Jurisprudence, P.835 GRAY : The Nature and Sources of Law, PP 12, 186 Quoted by PB Mukarji, The new jurisprudence, P.8

644

DUGUIT'S THEORY OF RIGHT

According to DUGUIT, will is not an essential element in law or right. The real basis of

law is social solidarity. The emphasis on will is anti-social as it shows that man is in

conflict with his fellow-beings. DUGUIT rejects altogether the conception of legal right.

There is no conflict of interests between society and the individuals. The theory of

subjective rights is merely "a metaphysical abstraction". To him, "the right of the

individual is a pure hypothesis, a metaphysical affirmation, it is not a reality. It implies a

social contract at the origin of society, a manifest contradiction. No one has an other

right than always to do his duty". DUGUIT goes to the extent of saying that the term

"right" should be removed form legal vocabulary.

The theory of DUGUIT has been criticized from many quarters.

According to Dr .JENKS, "if one individual can in the name of the law and by the agency

of the state's officials bring down upon another who has committed a breach of a legal

duty, the sanction attached to that duty, there exists in the first individual, a power to

enforce, with the aid of the state, a legal duty and to that power the jurists gives the name

of legal right". According to LASKI, the denial of legal right by DUGUIT is

"terminological rather than actual".

■ THEORY OF TOTALITARIAN

According to the totalitarians, the whole conception of legal rights is wrong. The only

real thing is the state and not much importance should be attached to the individuals. The

state is omnipotent and all-embracing and individual has no existence independent of the

state. All rights belong to the state and individual as such can claim working.

THE ELEMENTS OF A LEGAL RIGHT

According to SALMOND : Every legal right has been said to have the five following

elements of characteristics:

645

II The Person of Inherence

SALMOND is also called the subject of right. A legal right is always vested in a

person who may be distinguished, as the owner of the right, the subject of it or the

"person of inherence". Thus, there cannot be a legal right without a subject or a

person who owns it. However, the owner of the right need not be certain or'

determinate.

In other words, the subject means the person in whom the right is vested, or the

holder of the right. There can be no right without a subject. The subject of the

right may be determinate or indeterminate as the society at large may be the

subject of a right.

In briefly, it is vested in a person, who may be distinguished as the owner of the

right, the subject of it, the person entitled or the person of inherence.

For instance, an unborn child possesses a legal right although it is not certain

whether he would be born alive or not. Likewise, a right can be owned by the

society, at large, it is a valid right although the subject of right is indeterminate.

II The Person of Incidence

A legal right avails against a person upon whom lies the co-relative duty. He is

distinguished as the "person of incidence". He is a person bound by the duty and

so may be described as "subject of the duty".

In other words, the person bound or the person of incidence - it means die person

upon whom falls the correlative duty.

H Contents of the Right

The act or omission which is obligatory on the person bound in favour of the

person entitled. This is called the context or substance of right.

646

In other words, the act or forbearance - right relates to some act or forbearance. It

obliges a person to act or forbear in favour of the person who is entitled to the

right. It is the content of the right.

4j Subject matter of Right

It is something to which the act or omission relates, that is the thing over which a

right is exercised. This may be called the object or subject-matter of the right.

Some writers, particularly Dr.HOLLAND argue that there are certain rights which

have no objects. He cites an illustration of master and servant relationship. If B

is the servant of A, then in this case A is the person of inherence, B is the person

of incidence, and reasonable service is the "act" to which A is entitled. But in this case the object of right is missing1 because there is no material thing to constitute

an "object" in this illustration.

Sir SALMOND, however, considers that HOLLAND looks at the object of right

with such a narrowness that he is forced to conclude that there are some rights

which have no objects. According to SALMOND the object in the instant

illustration is the skill, knowledge, strength, time, etc. of tire person bound by the duty2.

5j Title of the Right

Every legal right has a title, that is certain facts or events which are events by

reason of which the right has become vested in his owner.

In other words, in addition to these four elements, SALMOND has given a fifth

element also, that is, "title". He says that "every legal right has a title, that is to

say, certain facts or events by reason of which the right has become vested in its

owner".

! HOLLAND : Elements of Jurisprudence, P.882 SALMOND : Jurisprudence (12th Ed.) P223

647

SALMOND illustrates it as follows: "If A buys , a piece of land from B, A is the

subject or owner of the right so acquired. The persons bound by the correlative

right are persons in general, for a right of this kind avails against all the world.

The context of the right consists in non-interference with the purchaser's exclusive

use of the land. The object or subject-matter of the right is the land. And finally,

the title of the right is the conveyance by which it was acquired from its former owner"1.

In this way, according to him, every right involves a three-fold relation, in which

it stands

"I) It is a right against some person or persons.

ii) It is a right to some act or omission of such person or persons.

iii) It is a right over to something to which that act or omission relates"

To take another illustration, suppose a testator leaves a gold ring to a legatee. In

this case legatee is the subject or owner of the rights. The gold ring is the object

of the right; the delivery of the ring is the content of the right; the executor is the

person of incidence and the will bequeathing the ring is the "title" of the right.

Prof. KEETON has expressed a view that a legal right has only four elements. He

does not consider "title" as are essential element of legal right because it is only the evidence of the right or the source of the right2.

CAN THERE BE AN OWNERLESS RIGHT

The English law does not accept the Existence of an ownerless right because a right

without a subject is an impossibility. It, however, accepts that the subject of right may be

uncertained or contingent as in case of an unborn child whose being bom is uncertain.

1 SALMOND : Jurisprudence (12th Ed.) P.2232 Subbarao G.C.: Jurisprudence of Legal Theory (9,h Ed.) P.167

648

Like a subject of right, an object of right is also essential. A right without an object in

respect of which it exists, is an impossibility. The object of right may be material things

such as furniture, books, cars, buildings or it may also be intangible such as right of

reputation, good will, patents and copy right, right in respect of domestic relations,

companionship of husband over his wife and "vice versa", the right of parents over their

children, etc. A master's right to services of his servant is also an object of right.

Thus, it may be concluded that there cannot be a legal right without a subject in whom, it

inheres and an object or subject-matter in respect of which the at or omission relates.

CAN A RIGHT BE USED AGAINST THE STATE ?

Another pertinent question regarding a legal right is whether it can be used against the

state. AUSTIN asserts that state being omnipotent, the subjects cannot have any right

against it. In his view existence of three parties, namely the bearer of right, the bearer of

the duty and the sovereign, is essential for enforcement of any legal right. Therefore, if a

person wants to use a right against the state, he being himself the bearer of duty, cannot

play the role of a sovereign. As such, subject cannot have any right against the state, the

latter being supreme sovereign authority.

It is, however, submitted that after the passing of the crown's proceedings act, 1947, in

England, the state immunity extends only to sovereign functions of the state, that is there

cannot be any right to claim damages against the state for the tortuous acts committed by

it in exercise of its sovereign function, but the state can impose liability on itself for damages resulting from its non-sovereign functions1. Considered from is standpoint,

there should be no objection to conferring, rights in the subjects against the state.

CAN THERE BE A RIGHT WITHOUT AN OBJECT? (A RIGHT WITHOUT AN

OBJECT)

There has been a controversy as to whether a right can be without an object. As we have

seen there must be an object that is a thing over which a right is to be exercised and from

1 P&O Steam Navigation Co V. Secretary of State for India in coUncil (1861), 5 Bom HCR Appx. P.l

649

that point of view SALMOND has divided rights in seven categories. The object may

either be material thing or immaterial thing i.e. a right simply. Thus, there must be an

object and there can be no right without an object.

But HOLAND was of the view that a right without object. According to him for example

there is no object in a case where A and B agree that B will serve as manager in A's firm

on a salary. He says that in this case A is subject of right; B is subject of duty; rendering

service by B is content of right and agreement between A and B is content of right and

agreement between A and B is title but object is missing. There is nothing on which A

has exercise his right to take service.

Answer to this case and criticism by HOLLAND that there can be a right without object,

was given by SALMOND himself who remarked that "a right without an object in

respect of which it exists is as impossible as a right without a subject to whom it

belongs". He said that there can be no right without an object and he said that the given

case is also not without an object. Object is there in this case too and SALMOND said of

that the object in this case for the right of A is the "intelligence” of B. Why A appointed

B and why no C or X, Y, Z. The reason is as concluded by SALMOND that A believed

that B's intelligence can serve his purpose and therefore intelligence of B is an object in

this case which is covered by one of seven categories of right given by SALMOND from

the point of view of object.

Thus we can say that object is a must for a right and there can be no right without an

object.

CLASSIFICATION OF RIGHTS ACCORDING TO OBJECTS

SALMOND classifies rights according to their object, in seven ways as follows;

If Right with Material Objects

Most of the rights with which we are familiar have material things as objects.

650

2) Rights in respect of "ONE'S OWN PERSON," e.g. my right not to be killed, injured,

imprisoned, etc. The object is my life, health and liberty respectively.

il Right of Reputation

In this case the good opinion that men have about a certain person is the object of

the right.

4j Rights Relating to Domestic Relations

Every person has right to the society and affection of his wife and children. The

society, affections, etc. of the relations are the object of the right.

52 Right Concerning Other Rights

A and B arrive at an agreement that A shall sell to B his mortgage rights in land

already mortgaged to A. By this agreement, B acquires a right to get those

mortgage rights sold to him : and thus the object of his right is another right. In

case of an agreement to sell property owned the right transferred is a right to the

right of ownership.

6j Rights Over Immaterial Property

The object of a right may be immaterial, for instance, a new idea of an inventor is

the object of a patient; the reputation of a fimi is the object of its good will. Other

instances are copy-rights and trade-marks.

11 Rights to Services

Instances of such rights are the rights of a master in a servant, client in a lawyer,

patient in a doctor. The object irf each case is the strength, skill or learning of the

person bound.

651

LEGAL RIGHT AND OTHER RELATED CONCEPTS:

H Right and Duty '

It has been generally accepted that every legal right is attended with a co-relative

duty. Therefore, there is no disagreement on the point that rights and duties are

co-existent. As already stated, a duty is roughly speaking an act which one ought

to do, an act the opposite of which would be a wrong. The authorities, however,

differ in their opinion whether with each duty there must be a co-relative right.

According to AUSTIN, duties may be both, relative and absolute. By relative

duties he means such duties which have corresponding rights. Relative duties are

owed to a person other than the one imposing them and breach of them is called a

civil injury remedy for which is compensation "damages" or restitution to the

injury party.

There are, however, certain duties which are absolute that is, those duties do not

have a corresponding right. The breach of an absolute duty is generally treated as

an offence for which wrongdoer is punished. AUSTIN mentions four kinds of

absolute duties:-

a) Self-regarding duties such as a duty not to commit suicide or not to

consume drugs or liquor, etc.

b) Duties towards indeterminate persons or public at large, e.g. a duty not to

. commit a nuisance.

c) Duties to those who are not human beings such as duty towards God or

animals, birds, etc.

d) A duty towards the sovereign or the state.

Though DR.ALLEN has supported the AUSTINIAN view regarding absolute

duties but writers including SALMOND, POLLOCK, KEETON and PATON

have not accepted the doctrine of absolute duties.

652

SALMOND firmly holds that no duty can be absolute under any circumstances.

According to him, it is misleading to say that a duty towards, state is absolute.

PATON also believes that rights and duties are inseparable and the existence of

one without the other is as impossible as that of a son without a father1 or a

husband without a wife.

KEETON also supports the view that rights and duties are co-relative terms.

According to Prof. HIBBERT, "the distinction between absolute and relative

duties is logical and convenient, since it harmonises the distinction between might

and right; for the state can only redress infringement of absolute duties by its own

might, whereas persons invested with legal rights do not redress infringement by

their own might but by appealing to the sovereign for protection of their rights

which is quite a different method to redress" , We are not forced to the

conclusion, however, if we regard the state as subject to the law. The theory of

unlimited sovereign was rejected by us and we are free to consider law as above

the state and conferring upon it rights and imposing upon it duties. If the state is

obliged to enforce a remedy "through a court of law", it does so because it cannot

exert might regardless of law.

As POLLOCK observes : "There seems to be no valid reason against ascribing

rights to the state in all cases where its officers are enjoined or authorized to take

steps for causing the la w to be observed and breakers of the law to be punished"

CONCLUSION

It is submitted that AUSTIN'S view that a state can have no legal rights against the

subjects is erroneous. All duties are relative just as all rights are. There can be no

’ PATON G.W.: A Textbook of Jurisprudence, (2nd Ed.) P.219 2 HIBBERT : Jurisprudence, P.185

653

absolute duties and AUSTIN'S classification of duties into absolute and relative

duties is unsound.

Right in the stricksense "strict senso" is an interest which the law protects by

imposing duties with respect to them upon other persons. It is an affirmative

control our another.

HOLLAND rightly defines, "right in this sense is a capacity residing in one

person of controlling with the assent and assistance of the state, actions of

others".

According to SALMOND the term "legal right" when used in its wider sense may

also mean liberty, power and immunity. It is therefore, necessary to discuss these

concepts in relation to legal rights.

2f Right and Liberty

Right in another sense may mean the benefit which a person derives from the

absence of a legal duty. In this sense it may be called liberty. Liberty or privilege

denotes the absence of restraint. Liberty of a person consists in his freedom to do

or not to do an act as he pleases. Liberty or privilege is freedom of a person to act

or refrain from acting in a manner he likes without being prevented by law but he

has no right and he is not at liberty to interfere with the rights of others. Thus a

person is at liberty to express his opinion freely on public affairs but he is not at

liberty to defame others.

Briefly, liberty or privilege denotes the absence of restraint. It is a legal freedom

on tlie part of one person as against another to do a given act or a legal freedom

not to do a given act.

654

AUSTIN'S VIEW

According to AUSTIN liberty and right are synonymous. He says, "the liberty of

acting according to one's wish would be illusory if it were not protected from

obstruction". He argues that when the law affords such protection, it is in effect

conferring a right, and therefore right and liberty are synonymous. In liberty the

leading idea is absence of restraint whereas in case of right protection of it is the

predominant consideration.

SALMOND’S CRITICISM OF AUSTIN'S VIEW

There is one thing common in liberty and right, that both confer benefit upon a

person by the law. It is, however, erroneous to think that both are synonymous.

Liberty arises from the absence of duties imposed upon a person. A right, on the

other hand, enjoins on another the duty of doing or forbearing from doing

something for the benefit of person entitled to the right. To quote SALMOND, he

says, "rights are what others are to do for me, liberties are what I may do for

myself. For instance, a person is at liberty to carry on business under his

trademark but others should refrain from carrying on business with that person's

trademark because in that case that person's right would be infringed.

SALMOND considers absence of a right as co-relative of liberty. For instance, if

B commits a trespass on A's land, then A is at liberty to eject B from his land but

has no right that he should not be ejected from A's land.

There is no suitable co-relative of liberty as it would be contradictory of right.

HOHFELD, however suggests thht correlative of liberty is "no right"

655

31 Power and Subjection

Power may be defined as "an ability conferred upon a person by the law to alter,

by his own will directed to that end, the rights, duties, liabilities or other legal relations, either-of himself or other persons"1.

Examples are right to make a will; power of sale vested in a mortgagee; a power

to sue and to prosecute; landlords right to re-entry etc. SALMOND holds that

powers are of two kinds, namely

i) Public, or

ii) Private.

Public powers are those which are vested in a person as an agent or instrument

of the state. They include various forms of legislative, judicial and executive

authorities.

Private powers, on the other hand, are those which are vested in persons to be

exercised for their own purpose, and not as agents of the state.

It must be stated that power is either the ability to determine the legal relations of

other persons, or ability to determine one's own.

The first of these i.e. power over other persons is sometimes called "authority"

and the second power over oneself is usually termed as "capacity".

It is significant to note that a power is not the. "something" as a right nor is it

"identical" with "liberty". For instance, I have a right to make a "will" does not

mean that in doing so I do no wrong. It does not mean that I will" make a will

innocently, it means that I can make a will effectively.

SALMOND : Jurisprudence (12th Ed.) P.229

656

A power is usually combined with a liberty to exercise it, not merely in an

effectual manner but also in a rightful manner. This is, however, not always

necessary the case. For instance, when a thief sells stolen property in the market,

the sale is wrongful because the thief has no right to do it but is shall nevertheless

be effectual and pass a good title to an innocent purchaser who purchases it for value and without notice. In this case, there is power without co-existing liberty1.

The co-relative of power is liability or subjection. For example, the state has

power to punish the offenders, that means the offenders are subject to exercise of

that power by the state. Again, a mortgagee has power to sell the mortgaged

property, that means the mortgagor is subject to the exercise of this power of the

mortgagee.

41 Immunity and Disability

Exemption form the power of another is called "immunity". The co-relative of

immunity is disability. The concept of immunity is based on the Latin maxim

"nemo dat quod non habet" which means disability on the part of persons in

general to transfer property which they do not themselves own

Just as a power is a legal ability to change legal relations, an immunity is an

exemption from having a given legal relation changed by another. The right of a

sovereign not to be sued in a foreign court, is neither a right in a strict sense, nor

liberty nor a power. It is infact, an exemption or immunity from legal

proceedings in a foreign court. The foreign courts are correspondingly under a disability in the matter of legal proceedings against a sovereign2.

The relation between immunity and power is more or less similar to that of liberty

to right. Liberty arises from the absence of a right in another and the absence of a

1 SALMOND : Jurisprudence (12,h Ed.) P.2292 See HOHFELD’s Scheme of Jural Postulates (Intra)

657

right in another and the absence of a duty in one self. Immunity arises from the

absence of a power in another and in absence of - liability in oneself.

In other words, an immunity is an exemption from having a legal relation changed

by another. It is a quality vesting in the person immune which prevents others

from exercising power over him. Thus, when A cannot exercise a particular

power against B, there arises an immunity in B. An immunity is "absence of

subjection” to another. Corresponding to an immunity of B, is a "disability" 'or

inability"’ or "no power" in A.

ILLUSTRATION

The fact that member of Parliament cannot be arrested during a certain period is

their immunity.

The following is a brief statement of what has been discussed above:-

1) A "right" in the strict sense is what "other's ought to do" in relation to the

owners of the right. Liberty of others is affected by a right. Its correlative

is a "duty".

2) A "liberty" is what I may do innocently. The law allows me to exercise my

will with the sphere of liberty. It correlates to "no rights".

3) A "power" is what I do effectively. The law assists me in exercising my

will. It correlates to a "subjection".

4) "An immunity" is what others cannot do effectively against me. The law

denies to other a particular power over me. It correlates to "nopower".

On the basis of the analysis of the conceptions of right, liberty, power and

inununity. SALMOND suggests that

a) Right is that which other persons "ought to do" in my behalf;

b) Liberty is that which I may do without the interference of law;

c) Power is that which I can do effectively against others;

658

d) Immunity is that which other persons cannot do effectively in respect of

me.

THE INTER-RELATIONSHIP BETWEEN THE RIGHTS IN NARROW SENSE

Right, in narrow sense, has been defined by SALMON as an interest recognized and

protected by rule of right. It is any interest respect for which is a duty and the disregard

of which is a wrong.

The interests which thus receive recognition and protection from the rules of right are

called rights. Every man who has a right to anything has an interest in it also but he may

have an interest without having a right. Whether his interest amounts to a right with

depends on whether there exists with respect to it a duty imposed upon any other person.

In other words a right is an interest the violation of which is a wrong.

Thus, it is clear that every right has a correlative duty and if there is no correlative duty

then there is no right.

Therefore, of a right in narrow sense, duty is a correlative and no-right is an opposite. It

may be shown as under-

For example if A has a right to take service then there must be some person in the world

who is under a duty to serve A; if there is none in the world to serve A; then he will have

no right; but suppose if there is B to serve A then B will be said to be a person under

duty.

659

SALMOND has given the following 5-elements of a legal right; viz.,

1) Subject of Right i.e. the person who has a right i.e. a person of behaviour.

2) Subject of Duty i.e. the person against the right i.e. to be exercised. He is called as

a person under a duty or the person of incidence.

3) Concept of Right i.e. to do or to abstain from doing something.

4) Object of Right i.e. the subject matter on which te right is to be exercised.

5) Title i.e. the source through which right is acquired.

RIGHT IN WIDER SENSE

WIDER SENSE OF LEGAL RIGHT

The term "right" has been discussed in the above lines in its strict sense. "Right" is used

in a wider sense also. In its wider sense it includes other legally organized interests

without considering whether they have a corresponding legal duty or not. SALMOND

has pointed out that the "right-duty" was often used to indicate relationships which were

not in reality the same. It causes a confusion in legal argument. He tried to distinguish

the relationships from one another to avoid confusion which is caused due to the use of

the terms in various senses. He said that term legal right in its generic sense means "any

advantage or benefit which is any manner conferred upon a person by ride of law".

Of right, in this sense, there are four distinct kinds. These are:

1) Right,

2) Liberties,

3) Power, and

4) Immunities

Each of these has its correlative, namely

1) Duties,

2) No rights,

3) Subjections "or liabilities" and

4) Disabilities

660

This analysis of SALMOND was carried further by HOHFELD1. He analyzed it with

greater accuracy. This has been again developed by many other jurists.

KOCOUREK pointed out the defect of HOHFELD's theory. In his work he presents an

analysis with almost a mathematical accuracy. This distinction is not of academic

interests only, but it has started to take practical shape also. It has been adopted by the

"American Restatement of the Law". In a tabular form it is as follows:-

Right(Claim)

(Duty)

f------ *

r4-------

(Liberty) or Privilege

No Right (No-claim)

Power

Liability or (Subjction)

Immunity

Disability or (No-power)

The concept of "right' and its legal co-relatives can be better understood by the help of

above HOHFELD's tables representing the inter-relationship between these jural

concepts.

In the above tables, the four terms in the first rectangle are related to each other in more

or less the same way as the four terms in'the second rectangle.

SALMOND has preferred to use the word "right" in place of "claim". But this may lead

to some confusion because the word "claim" indicates what one can force another to do

or to refrain from doing.

1 Jural Relations

661

The person who can so force is said to have a claim and the person who can be made to

act or forbear is said to have a duty. Therefore the word "claim" seems to be more suited

than the word "right" in the above table.

The vertical arrows in these tables connect jural correlatives. Thus the correlative right is

duty and correlative of liberty is "no right". Likewise, the correlative of power is liability

and that of immunity is disability.

The horizontal arrows connect the contradictories. Thus "liberty" or "no-duty" is the

absence of right in another. Similarly, immunity is the absence of power in another1 2.

The above classification as given by HOHFELD is significant because it shows that a

legal relationship does not given rise to only one right and one duty but also gives rise to

concepts such as claims, immunity, power, etc. which should also be taken into

consideration.

Prof. JULIUS STONE has however, criticised HOHFELD's jural postulates on the

ground that there is no justification for a correlative of a legal right. Moreover, it is also

not necessary that each of these concepts should have a correlative. ROSCOE POUND

has also rejected HOHFELD's classification of jural postulates".

CLASSIFICATION OF LEGAL RIGHTS

Legal rights have been classified by various jurists in different ways. Rights may

generally be classified under the following heads:-

1 SALMOND : Jurisprudence (12m Ed.) P.232-332 ROSCOE POUND : Legal Rights (1915) P.26

662

11 Perfect and Imperfect Right

Rights and duties are either perfect or imperfect. A perfect right is one which

corresponds to a perfect duty and a perfect duty is one which is not only

recognized by the law but is enforced also.

"Perfect right" means the complete right i.e. the right for which there is remedy

also. If a breach is made to a right of a person then if the aggrieved party has

remedy left to get his right enforced then is a perfect right and when in case of a

breach the right is not enforceable in a court of law then it is known as "imperfect

right"

There is a maxim,...”ubi jus ibi remedium” that means whatever there is a right

that has remedy also - such rights are known as complete or perfect right and in

cases where remedy is lost but right is there, then it is known as imperfect right.

According to SALMOND perfect right is one which corresponds to a perfect

duty. It is not only recognized by law but also enforced by it. An imperfect right,

on the other hand, is one which though recognized is not enforceable by law. In

other words, a perfect right is one in respect of which an action can be

successfully brought in a court of law, and the decree of the court, if necessary,

enforced against the defaulting judgment - debtor. But an imperfect right is incapable of legal enforcement1. A time-barred debt is a typical example of

imperfect right. In India, the creditor or the holder of a promissory note can sue

upon it within three years from the date of debt becoming payable. After the

expiry of this time, the debt is barred by time. The limitation, however, does not

extinguish the debt. That is, "for certain purposes creditor’s rights are still

recognized, though the time-barred debt cannot be recovered in a court of law.

ft1 Allen V. Waters & Co., (1955) 1 KB 200

663

Finally, if the debtor pays the money after it has become time-barred, he cannot

later sue to recover it saying that it being barred by time, was without

consideration.

Secondly, a fresh promise to pay the debt in writing can be enforced and the time-

barred debt is treated as a valid consideration for such promise.

Thirdly, if the debtor has given some security, he cannot take back the thing given

as security, without paying the debt to the creditor.

Thus, in case of an imperfect right, though remedy in a court of law is denied but

the right itself does not come to an end. Likewise, part-payment of a time-barred

debt converts the imperfect right into a perfect right.

The rights of the subjects against the state are also sometimes classified as

imperfect rights because of their unenforceability. It is, however, submitted that

this view seems to be against the accepted legal notions, the reason being that an

ordinary imperfect right is unenforceable because some rule of law declares it to

be so whereas rights against the state are unenforceable not in this legal sense, but

in the sense that the strength of the law is none other than the strength of the state

itself.

An imperfect right may be good as ground of defence but not as a ground of

action. In the way an imperfect right is sufficient to support any security that has

been given for it. An imperfect right may possess the capacity of becoming

perfect.

il Positive and Nega tjve Right

In respect of their contents, rights are of two kinds being either positive or

negative.

664

A positive right corresponds to a positive duty and is a right that he on whom the

duty lies shall do some positive act on behalf of the person entitled; for example

A has employed B for working as a manager in A’s factory; in this case A is said

to have positive right against B as B is under a positive duty of serving as per

directions of A.

A negative right corresponds to a negative duty and is a right that the person

bound shall refrain from some act which would operate to the prejudice of the

person entitled; in other words, a negative right, corresponds a negative duty. It is

a right of the person and the person bound shall restrain from doing some act

which will be prejudicial to the person entitled.

The positive right is a right to receive something more than one already has such

as my right to the money in the pocket of the debtor while negative right is a right

to retain what one already has such as my right to the money in my pocket.

All rights in personam are positive negative right can be summarized as follows:

1) A positive right corresponds to a positive duty whereas a negative right

corresponds to a negative duty.

2) A positive right involves a positive act while a negative right involves

some kind of forbearance or not doing.

3) A positive right entitles the owner of it to an alteration of the present

position to his advantage whereas a negative right seeks to maintain the

present position of things.

4) A positive right aims at some positive benefit but a negative right aims at

not to be harmed.

5) A positive right requires an active involvement of others but a negative

right requires only positive acquiescence of other persons.

6) A positive right receives something more than what one already has

whereas a negative right seeks to retain what one already has.

665

7) A positive right has a mediate and indirect relation to the object while a

negative right is immediately related to the object.

8) Right is the money in one’s debtor’s pocket is an illustration of a positive

right while the money in one’s own pocket is an example of a negative

right.

3} Rights in Rem and Rights in Personam OR Real and Personal Rights

The terms “right in rent ” and “right in personam ” have been derived from “jus

in rem and jus in personam ” which, in turn, were derived by Romans from action

in rem and “action in personam". Roman also distinguish between “action in

rem ”, an action for the recovery of dominium, one in which the plaintiff claimed

that a certain tiring belonged to him and ought to be restored or given upto him,

and “action in personam” which was a claim against a specific person. The

"action in personam ” was one for the enforcement of an obligation.

The modem terms right "in rem ” and right “in personam ” have been generalized,

somewhat inaccurately, from Roman sources. The typical modem example of a

right “in rem ” is that of the owner of land against persons generally that they

shall not interfere with his rights ownership, whereas that of a right personam is

that arising between the parties to a contract. A right in rem since it relates to a

greater number of persons, is more secure, although usual definition is more limited and describes it as availing against persons generally1. A right “in

personam ", on the other hand binds either a particular person or persons.

It has very often been contended that all rights concern two things, a “res ” and an act of forbearance, but in case of4ight “in rem ” the relation to the “res ” appears

more prominent, whereas in rights "in personam” attention is paid to me

particular relationship between definite parties which give rise to the obligation.

Sometime for right “in rem" and rights “in personam", the adjectives "real

rights" and “personal rights" have also been in vogue. For according to

1 AUSTIN : Lectures on Jurisprudence, 1, P.370

666

SALMOND, in real rights, it is the real relation that stands in the forefront of the

juridical conception; whereas in personal rights, it is the personal relation that

constitutes the predominant factor in the conception. The former are emphatically

and conspicuously rights “in rem the latter are rights “in personam ”. For this

difference the reasons are more than one. In the first place, the right “in rem ” is a

relation between the owner and vague multitude of persons, none of whom is

distinguished from any other; whereas a right “in personam ” is a definite relation

between determinate individuals, and the definiteness of this personal relation

raises it into prominence. Secondly, the source of a right “in rem ” is generally to

be found in the character of real relation, whereas a right “in personam” borrows

its origin from the personal relation.

The two kinds of rights are inevitably quite distinct in respect of the modes of

their creation and extinction. The indeterminate incidence of the duty which

corresponds to a right “in rem ”, renders impossible many of dealings with it that

are of significance in the case of rights “in personam ”.

Most of the rights "in rem" are negative; that is to say, a duty to forbear or

abstain. Consequently, all rights, “in rem ” reside in determinate persons and are

rights to forbearances on the part of persons generally. Rights "in personam ”, on

the other hand, are positive, but it cannot be said that they are not negative.

AUSTIN has pointed that, “the obligation with which it correlates or to which it

corresponds is negative or positive, that is to say, an obligation to forbear or abstain or an obligation to do or perform”1.

Very off and on, it has been-'argued that a right “in rem" is in reality a

conglomeration of separate rights “in personam” since each right can only

correspond with a single duty and not with many different duties. But the essence

1 AUSTIN : Lectures on Jurisprudence, 3rd Ed., Campbell, London, 1869. P.404; See also, Radin, A Restatement of HOHFELD, (1939) 51 Har V.L.Rev; PP 1153, 1155

667

of a right "in rem ” is that it avails against an open or indefinite class of persons,

whereas right “inpersonam" avails against only a specific person or persons.

In other words, briefly, a right in rem is one which is available against the whole

world. A right in personam is one which is available against a particular

individual only.

A right in rem is a right vested in some determinate person “either personally or

as a member of community” and available against the world at large. Thus, one’s

rights not to be defamed or assaulted, etc. are rights available against the whole

world.

The very opposite of a right in rem is a right in personam. A right in personam is

a right available only against some determinate person or body and in which the

community at large has no concern.

For example A aggress to sell his house to B for a certain price. A does not carry

out his contract, B has a right to sue A for damages for breach of contract. Their

mutual rights against each other were created by their private mutual agreement

and outsiders are not concerned with them. Such rights are called rights in

personam.

DISTINCTION

The distinction between the rights in-rem and rights in personam is closely

connected but not identical with that between negative and positive rights. If a

right is available to a person against the world as a whole then he is said to have a

right in rem and if a right is available to a person against some named or specified

person then he is said to have a right in personam. For example my right to the

peaceable occupation of my farm is “in rem ” because all persons in the world are

under a duty towards me not to interfere with it. But if I grant a lease of my farm

668

to a tenant than my right to receive the rent from him is in personam because it

avails exclusively against the tenant himself.

The distinction between rights in rem and rights in personam may be summarized

as follows:

Rights in Rem

1) Most of the rights in rem are 1)

created by the tort law

2) They are also sometimes called 2)

rights or rights in respect of a thing

3) Almost all rights in rem are 3)

negative

4) They afford protection against the 4)

whole world or against an

indeterminate section of the public

41 Proprietary and Personal Rights

If the breach of a right can be measured in terms of money or it has money value

than it is said that the person has proprietary right but if the breach of a right

cannot be measured in money or it has no money value that that right is known or

called as personal right.

The aggregate of a man’s proprietary rights constitutes his estate, his assets or his

property while sum total of a man’s personal rights constitutes his status or

personal condition as opposed to his estate.

If a person owns land, chattels, patent right, goodwill of a business or shares in a

company, ail these rights pertain to his estate and are known as proprietary rights

but if he is a free man and a citizen, a husband and a father than these rights

which he has as such pertain to his status and are known as personal rights

Rights in Personam

Almost all the rights in personam

are contractual

They emphasize personal

relationship.

Most of the personal rights are

positive.

They are available against some

determinate individual or

individuals

669

Proprietary rights are valuable, personal rights are not. The former are worth

money whereas the latter are not. The former are elements of man’s wealth; the

latter are merely elements in his well-being. Thus, my right to own land,

furniture, shares in a company, good will in a business are my proprietary rights

but my rights of personal liberty, of reputation and of freedom from bodily harm,

are my personal rights.

SALMOND has pointed out that “the aggregate of a man’s proprietary rights

constitutes his estate, his assets, or his property is one of the many senses of that

most equivocal or legal terms. The sum total of man’s personal rights, on the

other hand, constitutes his status or personal condition as opposed to his estate

Some have suggested hat personal rights are those which cannot be transferred or

have no money value. Neither of these tasks will suit the English law. Choses-in-

action were treated as creating proprietary rights even before they were

transferable and equity considers as a proprietary right to member’s hare in the

assets of a club to which he belongs, yet his share cannot be transferred to any

other person or be sold for value. It is true that most personal rights, such as right

to one’s physical integrity, cannot be transferred, but at the same time it does not

follow that all proprietary rights can be transferred.

DISTINCTION

The distinction between proprietary and

follows:

Proprietary Rights

1) Proprietary rights are matter of

man’s wealth

2) According to SALMOND they are

valuable.

3) Proprietary rights can be inherited.

4) Proprietary rights are permanent in

personal rights may be summarized as

Personal Rights

1) Personal rights are a matter of

man’s well-being.

2) They have no monetary value.

3) They are not inheritable.

4) Personal rights are not permanent.

670

nature.

5) Law has readily recognized 5) Law has been slow in recognizing

proprietary rights. personal rights.

51 A Right in Re Propria and Re-Aliena

“Re ” means thing; “propria” means of his own and “aliena” means of others. If

a person has a right in his own thing or property he is said to have a right in “re-

propria” i.e. the right in his own thing and if he has a right in the property

belonging to another than he is said to have a right in re-aliena that is a right in the

property of another.

A right in “re-aliena 'or encumbrance”’ has been defined by SALMOND as one

which limits or derogates from some more general right belonging to some other

person in respect of the same subject-matter. All others are “jura in re propria”.

AUSTIN has confined the latter right to ownership and described a “jus in re

aliena ” as a fraction or particle of ownership which is held by another than the owner of die “res” concerned1.

The expression “jus in repropria” and “jus in re aliena” were, in fact, devised by

the commentators on the civil law. They are not to be found in the original

sources. Their significance in manifest. The owner of a chattle has jus in "re

propria ” a right over his own property, a pledgee or encumbrancer of it has “jus

in re aliena” a right over the property of another.

Liberally, speaking, right in repfopria means right over one’s one property and

right in re-aliena means right over the property of someone else. The latter may

also be called as encumbrances using the term in its widest sense.

1 AUSTIN : Jurisprudence II, P.847

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The most absolute power which the law gives over a thing is called “the right of

dominium ”. This is a real right in a thing which is one’s own, and is called right

in repropria. But a man have rights in property les than full ownership, the

"dominum ” in fact, vested in another, such rights are called rights “in aliena’’.

According to SALMOND, “a right in re aliena is one which limits or derogates

to from some more general right belonging to some other person in respect of

same subject-matter. All other rights which are not thus limited are juria in re

propria". For instance, if a person mortgages his house, he has created an

encumbrance by dividing his proprietary right is the house. The mortgagee is

temporarily the owner of the house. The mortgagor has the right to redeem the

mortgage. The right which is now completely detached and separated from the

mortgagor’s complete ownership is the right in re-aliena because mortgagor’s

complete ownership is encumbered due to mortgage.

SALMOND refers to four classes of encumbrances, namely,

i) Leases;

ii) Servitudes;

iii) Securities &

iv) Trusts.

ll Leases

A lease is an encumbrance of property vested in one person by a right to

the possession and use of it vested in another person.

tjl Servitude

A servitude is a right to the limited use of a piece of land unaccompanied

either by the ownership or possession of it. For example, a right of way or

a right to the passage of light or water across adjoinng land etc.

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in) Security

Security is an encumbrance vested in a creditor over the property of his

debtor for the purpose of securing the recovery of the debt e.g. a mortgage.

ivl Trust

A trust is an encumbrance in which the ownership of property is limited

by an equitable obligation to deal with it for the benefit of someone else.

The owner of the encumbered property is called the trustee and the owner

of the encumbrance is the beneficiary of tire trust.

61 Principal and Accessory Rrights

The relation between the principal and accessory rights is the reverse of the right

in re-propria and rights in re-aliena. When one right is available to a person

because of the existence of another right than one right is principal right and

another right is accessory right.

For example, my right in the property is principle right while my right to pass

over the land of another to reach my property is accessory right.

Principal rights exist independently of other rights while accessory rights are

appurtenant to principal rights, owner of the principal rights may get augmented

by other accessory right and vest in the same owner to his benefit.

ILLUSTRATIONS

i) A owns to B a debt secured by mortgage. The debt is the principal and the

security is accessory, when the debt is extinguished or transferred, the

security is also Extinguished or transferred. The security has also a

beneficial effect in the principal right of recovery.

ii) I own a plot M to which a right of way is attached over a plot N, not

owned by me. My ownership is the principal right to which is attached the

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accessory right of way, when I sell the plot M the right of way goes with

it.

For example, a security is accessory to the right secured, a servitude is accessory

to the ownership of land- for whose benefit it stands, the rent and conversant of a

lease are accessory to the landlord’s ownership of property.-

21 Primary and Sanctioning Rights "Antecedent & Remedial Rights"Rights to be enforced may be either

i) Primary, or

ii) Sanctioning rights.

Primary rights are also called antecedent rights. Those are the bundles of those

rights which are the privileges enjoyed by any person e.g. a person’s rights to

liberty or safety to reputation.

A violation or breach of the primary rights, on the other hand, gives rise to a

sanctioning right or remedial right.

Primary rights are also called the antecedent or substantive rights. Similarly,

sanctioning rights are also called the remedial or adjectival rights. It may be

reiterated that sanctioning rights originate from some wrong i.e. from violation of

another right whereas primary rights have some source other than wrongs.

SALMOND has pointed out that a primary right can either be right in rem e.g.

“one’s right not to be assaulted'or it may be a right in personam i.e. right of a

promise that the promiser should perform his aprt of the contract. If the promiser

commits a breach of the contract, promisee shall have sanctioning right to claim

damages. Sanctioning rights are in persanum because they result from violations

by specific persons. A right to sue in a court of law is an illustration of a

sanctioning right or a remedial right.

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Sir C.B.POLLOCK has called them as substantive and adjective right. However,

when a right exists independently of any other right and for its own sake, it is an

antecedent right. When another right is added to it, the right so added is known as

a remedial right. For example, A has a right against, persons generally that

nobody shall defame him, and if B has broken his duty, then A shall have a

remedial right to secure damages. But some modem thinkers have denied

antecedents rights altogether on the notion that there is anything like a right to

reputation, for there exists only a claim to damages if one’s fair name has

unjustifiably been nick-named. This has more often been the view of the monists1. But BUCKLAND and MC NAIR2 have strongly supported the

existence of antecedent rights for more than one reason. In the first place they

have mentioned, the language of law shall become difficult, if antecedent rights,

such as a right to property, a right to reputation, are ignored; secondly, laws do

not merely exists to provide constrains but also to create better conditions under

which life of the‘community is possible and to increase the powers of men.

Thirdly, some antecedent rights are specifically enforced without any resort to

remedial rights such as specific performance of a contract. Thus, by confining the

sphere of rights in the form of remedies we shall be causing a huge confusion in

law. The classification of rights into antecedent and remedial is more convenient'

and purposive.

8]_ Vested and Contingent Rights

Rights may be divided into vested and contigent. A vested right is a right in

respect of which all events essential to vest the right in the owner have happened;

while a contingent right is one in respect of which only some of the events

necessary to vest the right have happened and the vesting can be complete only on

the happening or non-happening of a specified uncertain event.

1 See, HOLLAND : Jurisprudence, 10lh En. P.1412 BUCKLAND and MC NAIR, Roman Law and Common Law, P265

675

Thus, where X transfers by deed a property to Y, a living person, Y acquires a

vested right, but where property is given to an infant on his attaining a certain age,

the infant acquires a contingent right.

The condition in the case of contingent right may be condition precedent or a

condition subsequent. Thus, when property is transferred to an infant on his

attaining a certain age, the condition is a condition precedent and on the

happening of this condition precedent the contingent right will become a vested

right. A condition subsequent is some condition which must be fulfilled before

some vested rights can be extinguished or divested. Thus where property is given

to a widow so long as die remains chaste, the property will get divested if she

leaves the path of rectitude and becomes unchaste,

A vested right is not dependent upon the fulfillment of any condition and it

creates an immediate proprietary right, even though enjoyment may be postponed.

This is not the case in a contingent right. It becomes vested only on the

fulfillment of any condition.

A vested right is not defeated by the death of the transferee before he obtains

possession, but a contingent right is defeated by the death of the transferee if the

condition has not been fulfilled.

Lastly, a vested right is inheritable and transferable, a contingent right is

uninheritable and non-transferable.

G.W.PATON has commented that when all the investitive facts which are

necessary to create the right have occurred, the right is vested, when part of the

investitive facts have occurred, the right is contingent until the happening of all the facts on which the title depends1.

! PATON G.W. Jurisprudence (3rd Ed. 1964) P.269-270

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21 Public and Private Rights

A right vested in the state is called a public right. The state enforces such right as

a representative of the subjects in public interest. A public right is possessed by

every member of the public. A private right, on the other hand, is concerned with

only private individuals, that is both the parties connected with it are private

persons.

As a corollary of public and private rights, there are public and private wrongs.

The former are a breach and violation of public rights and duties which affect the

community as a whole, namely, the state. They are called "crimes”. The private

wrongs are an infringement of private or civil rights belonging to individuals.

They are called injuries or torts.

SALMOND, however, pointed out that all pubic wrongs are not crime, e.g. the

breach of a public trust is a public wrong but it is redressible like a civil injury or

a private wrong.

In other words........A public right is possessed by every member of the public.

If one of the person concerned with the right is a state and the other is a private

person, the right is called a “public right” but on the other hand “a private right”

is concerned only with individuals and in this -sort of right both the parties

connected with it are private persons. Private rights are enjoyed by persons who

happen to certain property, or who hold some office. The public and private

rights differ in the same way as public and private wrong differ.

According to BLACKSTONE, “wrongs are divisible into two sorts or species,

private wrongs and public wrongs. The former are an infringement or privation

of the private or civil rights belonging to individuals and are there upon

frequently termed civil injuries; the latter are a breach and violation of public

rights and duties which affect the whole community 'or the state ’ considered as a

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community; and are distinguished by the harsher appellation of crimes and

misdemeanours

However, SALMOND pointed out that all public wrongs are not crimes. The

breach of a pubic trust is a public wrong but the method of redress is a civil one.

Moreover, all crimes are not public wrongs. Many minor offences can be

punished at the instance of a private person.

10) Legal and Equitable Rights

Legal rights are those which were recognized by the courts of common law in

England and equitable rights are those which were solely recognized in the court

of chancery.

The distinction between legal and equitable right originates from the distinction

between law and equity. Prior to the passing of judicature act, 1873, there were

two distinct co-ordinate systems of law in England which were called the

common law and the equity law. At that time, legal rights were recognized by the

court of chancery which was a court of equity. This distinction was, however,

abolished by the fusion of the two courts by the judicature act, 1873 but the

existence of common law and equity as two distinct branches of law still persists

in England. The methods of their creation and disposition are, however, different.

For example, a legal mortgage must be created by a deed but on equitable

mortgage may be created by a mere written agreement or by the deposit of title

deeds.

The general principle regarding equitable rights is that when there are two

inconsistent equitable rights claimed by different persons over the same thing, the

first in time shall prevail. But where there is a conflict between a legal right and

an equitable right, the legal right shall take precedence over equitable right even if

it is subsequent to the equitable right in origin but the owner of legal right must

, have acquire it for value and without notice of the prior equity. This principle

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finds expression in tire maxim,..... “where there are equal equities, the law shall

prevail

The Indian law, however, does not recognize the distinction between law and

equity since there is neither separate equity law nor separate equity courts in

India. But the principles of equity have found expression in the various statutory

enactments in India. In other words where there is no specific law or usage on a

subject, the case shall be decided by applying the principle of “justice, equity and

good conscience” which implies application of English law, so far as it is

applicable to Indian conditions and circumstances.

The privy council, in Chatra Kumari Devi V. Mohan Bikram observed that the

Indian law does not recognized legal and equitable estates. Therefore, there can

be only one owner and where the property is vested in a trustee, the owner must

be the trustee.

DISTINCTION

The distinction between legal and equitable rights can be summarized as follows:

Equitable Rights

Equitable rights were recognized

by the courts of chancery before

1875.

In case of a conflict between the

legal and equitable rights, the

equitable right must give way to

the legal rights.

When the equities are equal the

first in time shall prevail.

An equitable right does not

require these formalities since

equity looks to the intent rather

Legal Rights

1) Legal rights were recognized by 1)

the courts of common law

2) In case of a conflict between a 2)

legal and an equitable right the

legal right shall prevail.

3) When there are equal equities, the 3)

law shall prevail.

4) A legal right requires certain 4)

formalities to be completed with

before its creation or extinction.

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Legal Rights Equitable Rights

than to the form.'

5) Legal remedies are a matter of 5) Equitable remedies are

right. The court has no discretion. discretionary. The court may or

may not grant them.

Another notable distinction is that when there is competition between two rights

the one prior in time prevails “qui prior est tempore, potior est jure ", provided

both rights are legal or equitable. If one right is legal and another equitable the

legal right will prevail even if it is subsequent in time to the equitable right,

provided it was acquired without notice of the prior equitable right.

ILLUSTRATION

X, conveys certain land by a registered deed to B while it was already sold

without such a deed to A. If B got the land for value without notice of the sale in

A’s favour. A’s prior equitable right is defeated by B’s subsequent legal right.

The judicature act of 1873 brought about the fusion of common law and equity by

establishing a high court of judicature with a court of appeal over it. Thus, all

rights whether legal or equitable now obtain legal recognition in common court of

law.

11) Municipal and International Rights

Municipal rights are conferred by the law of a country. International rights are

conferred by international law. All municipal rights are enjoyed by the

individuals living in a country. Tire subjects of international rights are the persons

recognized as such by international law. There is no unanimity of opinion as to

who are the international persons recognized by international law. According to

one view, only the states are the subject of international law. According to

another view, individuals can also be the subject of international law.

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Briefly speaking, that municipal rights are conferred by the law of a country and

international rights are conferred by international law. All the individuals living

in a country enjoy the municipal rights, whereas tire international rights are

recognized only in the individuals recognized by international law.

12) Rights at Rest and Rights in Motion

This classification of rights has been given by HOLLAND. According to him,

when a right is stated with reference to its “orbit" and its “infringement" it is a

right at rest. The meaning of the term “orbit" is the sum or the extent of the

advantages conferred by the enjoyment of the rights. The term "infringement”

means an act which interferes with the enjoyment of those advantages. Causes by

which rights are either connected or disconnected with persons are discussed

under rights in motion. HIBBERT points out that this classification leaves no

place for the treatment of absolute duties. He suggests the substitution of the term

“duty" for the term “right”.

JUS AD REM

A right which originated from a right is called jus ad rem. That is to say, the person of

inherence has a right to have some other right transferred to him. For instance, if A

contracts to sell his land to B, then B acquires a right against A to have the land

transferred to himself. Here right of B is called right “ad remA right “ad rem ” is

always a right “inpersonam ” in nature.

Sir HENRY MAINE has pointed out that legal rights and duties have special significance

in jurisprudence because the status of a person is determined on the basis of rights and

duties of a person. According to him, status is a legal condition in which rights and

duties are imposed by operation of law as distinct from a condition in which they are

acquired by the person’s own voluntary actsStatus being conferred on a person by law, he cannot be deprive of it by other persons1.

1 Niboyat VNiboyat (1878) LR4D, see also In Re Luck’s settlement Trusts (1940) 1, Ch.D. 864

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Some of the legal status mentioned by Professor DICEY are - infancy, guardianship,

legitimacy, husband-wife relationship, insance and curator, corporation, etc.

Finally, it may be concluded that different kinds of rights and duties shall be analyzed in

the context of the law under which they are created and protected. The person claiming

the right must establish the title to it. It is only due to the existence of rights and duties .

that the concept of legai personality has evolved in jurisprudence because it is the only

measure for regulating the rights and duties of individuals in the society.

According to AUSTIN, “where a set of rights and duties, capacities and incapacities

especially affecting a narrow class of persons, is detached from the bulk of the legal

system and placed under a separate head for convenience of exposition, that set of rights

and duties, capacities and incapacities, is called a statuts The status is the aggregate of

rights and duties of a person as a member of a class.

According to SALMOND, the term “status" applies to the personal rights and duties of

an individual as distinct from his proprietary rights and duties which have an economic

value.

According to Dr.ALLEN, status is "the condition of belonging to a particular class of

persons to whom law assigns certain peculiar legal capacities or incapacities or both".

The term “capacity" means the power of acquiring rights. The status depends upon

defective capacity of peculiar capacity.

According to ANSON “the essential feature of a status is that the rights and liabilities

affecting the class which constitutes each particular status are such as no members of the

\

class can vary by contract”.

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CONCLUSION

SYNTHESIS IS THE CORRECT APPRAOCH

An analysis of both the theories reveals that are not so much opposed to each other as

they appear to be. One exaggerates the one element and the second the other element. It

is only a synthesis of the two that can give a correct picture. The human will is always

direct towards certain ends. These ends are nothing but certain interests. Law protects

certain wills perusing certain interests as rights. Therefore, right means the legal

protection and recognition of human will directed towards the satisfaction of certain

interests. ALLEN puts it very beautifully as "the essence of right seems to me to be not

legally guaranteed power by itself, but the legally guaranteed power to realize an

interest".

THEORIES OF RIGHT ARE BASED ON THE THEORY OF STATE AND LAW

It must be noted that these theories about rights are based not so much on an academic

analysis of the concept of right as on the theories of state and law. For example,

DUGUIT’s theory of right is based on his theory of “social solidarity”. The totalitarian

approach to right is in any respects akin to the view of DUGUIT. According to them, the

state is all, and is the only reality. Individual has no separate and distinct existence from

the state. The end of the state is to further the cause of the “proletariat" and any act or

omission to harm it can never be a right but is rather an offence. On the basis of such

principles serious inroads have been made on individuals freedom and rights. In

totalitarian state, USSR or the Chinese republic, there are only nominal rights. In

democratic systems, the progress of the individual and the state are considered to be

complementary to each other subject to certain restrictions, an individual enjoys a great

number of rights. Some of the right have been considered to be so fundamental to the

progress of the individual, that in maliy countries they have been guaranteed by the

constitution, as in USA & India.

Recognition and protection by the state are also the essential of legal right. Without

recognition by the state a right cannot be a legal right. On the point of protection by the

state there is a difference of opinion among the jurists. Some say that the protection by

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the state is an essential element of a legal right. There are others who do not agree to it.

The protection of right by the state means that if the right is challenged by anybody the

state will enforce it. In case of breach of a moral right law gives no remedy. Therefore,

it is said that enforceability by the legal process is the “sine qua non ” of a legal right.

Undoubtedly, it is this element that distinguishes a legal right from a moral right, but this

proposition is not absolute and is subject to the following exceptions:

1) The imperfect rights are the first exception. Imperfect right is that right which,

though recognized by the state, is not enforceable. A very popular example of

this kind of right is a statue barred debt. In this case it is not the right that is

barred, but it is the remedy or enforceability that is barred. If the debtor pays the

debt after the limitation, he cannot sue to recover it on the ground that it was paid

without consideration.

2) In many cases the law does not enforce the right itself but provides remedy in the

form of damages awardable to the injured party. In such cases the damages are

considered to be adequate remedy.

3) In some cases the courts cannot enforce their decisions for want of an adequate

machinery for such enforcement. In international law there is no adequate

machinery to enforce the decisions of the international body.

ENFORCEABILITY IS A NARROW VIEW

Whether the enforceability is the essence of a legal right or not depends on as to how one

defines law. If we define law in terms of its enforceability by the courts, the legal rights

also must have this element. It is submitted that to make enforceability as the essence of

law is taking a very narrow view of the matter. In modern times, a considerable body of

rules would be excluded from the law if we adhere to the view that enforceability is an

essential of law.

The essential element in the conception of status is that the rights and duties attached to it

are determined by law and are independent to the individual’s choice. As ANSON says,

“the essential feature of a status is that the rights and liabilities affecting the class which

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constitutes each particular status are such as no member of the class can vary by

contract". If this condition is satisfied it is immaterial that the status arises from a

voluntary act. It is thus permissible to speak of married status or status of bankruptcy. In

these cases the law superadds certain capacities and incapacities which are independent

of the individual’s own choice and so they satisfy the essential conditions of the

competition of status.