Table of Contents
Meaning and definition of Rights
The concept of legal right is a fundamental significance of modern legal theory because we cannot live without it. Every legal right has a corresponding duty and the interest which the law protects by imposing corresponding duties on others. Legal right means, “the standard of permitted action by law.” In Simple words, right is an interest recognised and protected by the state is called legal rights. A right is defined as a power or claim possessed by an individual. It is a privilege which a man enjoys under the protection of the state. Right is justified claim on others.
According to Holland – ” Right is a capacity residing in a person to control the action of others.”
According to Pollock – “Right is freedom allowed and power conferred by law.”
According to Holmes, “Legal right is that power which a man has to make a person or persons do 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.”
Classification of rights
1. Primary and secondary right
A primary right is a right which is vested in a person by the law protects by contract or in any other legal manner. Primary rights means independent right and already vested rights in person. E.g. a person’s right to liberty, safety and reputation etching.
A secondary right is a sanctions rights. A sanctions rights means that arisesif the primary rights a rights are violated. If someone violates other’s right to reputation by defaming other then secondary rights arises. It is also called remedial rights.
2. Legal and Equitable rights
Legal rights are those rights given by common law courts of England. Common law was based on statute by way of custom, usage.
Equitable rights are the right which is the outcome of law of equity given by the court of chancellor, or equity court based on principle of natural justice and conscience of Lord chancellor.
3. Positive and Negative rights
A positive right is a right which enables its holder to compel another person in whom the duty was cast to abide by the terms which he agreed to abide. For example, the right of a creditor to receive money from his debtor is a positive right.
Negative rights corresponding to a negative duty. The person against whom it is available hami to forbear from doing such act, if any act dine then that person is liable to punishment or civil liability. For example, right to reputation, right to life etc.
4. Right in rem and Right in personam :
Right in rem is the entire right of a person available against the entire world. For example, right to property.
Right in personam is a right available against a definite or a specified person. For example, A debt is a right in personam. It can be available against only debtors.
5. Proprietary and Personal rights
Proprietary rights means person’s individual property rights which consists of things, assets in possession or ownership of a person. This right can be transferred. When the owner of Proprietary rights is dead then property right of that person transferred into his heirs. Example, inheritance right.
Personal rights means rights relating to his personal body. For example, affecting his character, liberty and status in the society. Personal rights are not transferable. It does with its owner.
6. Vested and Contingent rights
Vested rights are already complete rights where other facts are not necessary. A vested right is not dependent upon the fulfilment of any condition and it’s created an immediate proprietary rights , even though enjoyment may be postponed.
Contingent rights are conditional and incomplete rights. Contingent rights is dependent upon happening or non-happening of certain events which may or may not happen.
7. Principle and Accessory Rights
A principle right is a primary right of a person vested in him by the constitution. Principle rights means granted rights such as fundamental rights, because they are already given by the constitution.
Accessory right is a right which is connected with a rises out of the principle rights. It is also called remedial rights because of someone breaches principles rights then the need of accessory rights arises.
8. Perfect and Imperfect rights
A perfect right is one which corresponds to a perfect duty. A perfect duty is one which is not merely recognised by law but also enforced by law. Fundamental rights are the example of perfect rights.
Those rights which are recognised by the law but are not enforced by the court is called imperfect rights. The directive principles of state policy of our constitution is the example of imperfect rights.
9. Rights in re-propria and Right in re-Aliena
Right in re-Propria is a right in respect of one’s own property. Right in re-Propria relates with absolute ownership.
Right in re-Aliena is the right in respect of another person’s property. It is not related with absolute ownership but related with possession. Example, right of tenants to rented room.
Elements of Theory of Legal Rights
According to Salmond, Legal rights involved five essential elements. They are as follows:
- Subject : Right is vested in a person who is the owner of legal right . The owner of legal right is called subject of right. E.g. If Anish buys a Cycle then Anish is the owner of Cycle. Therefore, Anish is the subject of right.
- Object : A legal right operates against some person upon whom lies the correlative duty. Such a person is called person of incidences or subject of duty for Object of right. Example, Others person have no right to drive Anish’s Cycle without his permission.
- Content : It may be an act which the subject of incidences is bound to for or it may be forbearance of his part.
- Acts : The act or omission relates to something which may be termed as the object or subject matter of the right.
- Title : Every legal right has a title, that is to say, certain facts or events by reasons of which the right has become vested in its owner. E.g. purchase, gift , inheritance and assignments etc.
Theory of Rights
There are various theories of rights given by various jurists. But Will theory and Interest theory are the most popular theories of legal rights. They are discussed below:
This theory was given by H.L.A Hart (1907-92), A British legal scholars. According to this theory, subject matters of every rights derived from the exercise of human will. This theory is inspired by natural rights. This theory is based on the doctrine of natural rights.
When we study will theory, the will theory is studied by dividing into two view point. In the first part , Austin, Holland and Pollock comes and In the second part , Hegal , Kant and Holmes come under. These two group of jurists give their own different options to theory of rights but they also support each others.
According to first group, will is a natural right, which is protected by law. According to second group, will should be certain within the limits of the will of others. Otherwise, if someone is superior than others can do anything he like against the will of others. So there will be no meaning of having right of others. So will mustbe certain within the limit of others.
Duguit criticised the will theory because will of A may be superior to will of B that may createimbalances of social solidarity. Right is given to maintain social solidarity and law is made for peace and security of society but if will theory creates imbalances then there is no use of such theory.
It was given by Jeremy Bentham(1748-1832). He didn’t believe in the idea of moral right , conceded that the rights could be useful in legal systems. He also says that right is for maximum number of happiness of the maximum number of people.
According to this theory, A legal right is legally protected interest. Legal right is interest not will. Main object of law is the protection of human interests. Interest is protected by law as rights, wherein will is not necessary to present. E.g rights of lunatic or newborn baby. These interests are not created by the state , but they exist in the society and state chooses out of them such interest as it will protect.
Meaning and definition of duty
“Duty is an obligation to do or omit to do something”. In the legal sense, duty means ” a legal obligation to do or not to do something. Example : A son is under a duty to feed his dependent parents
According to Salmond ” A duty is an obligatory act, that is to say, it is an opposite of which would be wrong. Duties and wrongs are correlatives.
Hibbert defines legal duty as “the predicament or a person whose acts are liable to be controlled by another with the assent and assistance of the state.”
According to Prof. Dicey, ” a duty is a species of obligation. People obey it due to indolence, deference, sympathy, fear and reason. And also due to psychological, social and moral pressures. The majority of duties are supported by State. the breach of the duty is imprisonment or fine.”
Kinds of Duties
There are various kinds of duties. Duties may be classified as follows :
1. Legal Duties and Moral Duties:
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. If someone disobeyed legal duty then he may be subject to dine or punishment. E.g. payment of tax, wearing helmets while riding motorcycle etc.
A moral or natural duty is 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. If someone violates moral duty then no legal action can be taken against that person. Example, greeting to parents etc.
2. Positive or Negative Duties:
When the law obliges us to do an act, the duty is called positive duty. Article 48 states some duties to be followed by people of the country. The duties described in the Article 48 is positive duty.
When the law obliges us to forbear from doing an act, the duty is negative duty. Law prohibits that no-one should defame someone is example of negative duty. Example, right to live , right to liberty etc.
3. Primary and Secondary Duties:
Primary duties are those which exist per se and independently of any other duty. An Example of a primary duty is to forbear from causing personal injury to another.
A secondary duty is that which has no independent existence but exists only for the enforcement of other duties. An example of secondary duty is the duty to pay a man damages for the injury is already done to the person.
4. Universal and Particular Duties:
According to Jenks universal duties are those, which are binding on all normal citizens of the community. General duties are those, which are binding on specific classes of normal persons.
Particular duties are those, which are binding between the persons who have voluntarily undertaken them.
5. Relative and Absolute Duties:
According to Austin, Relative duty is one for which there will be corresponding duty.
Absolute duty is one, which has no corresponding right .
Relationship between Rights and Duties
Rights and duties are closely related and cannot be separated from one another. Both go side by side. These are the two sides of the same coin. If the state gives the right to life to a citizen, it also imposes an obligation on him to not to expose his life to dangers, as well as to respect the life of others. If I have a right to work and earn, it is also my duty to recognize the same right of others.
Rights can be enjoyed only in the world of duties. For every right there is corresponding duty. When the people fail to discharge their duties properly, the rights all become meaningless. “I can enjoy my rights only if the others allow me to do the same. I have” the right to life and it is the duty of others to respect my life and not to cause any harm to me.”
Rights are not the monopoly of a single individual. Everybody gets these equally. This means that “others also have the same rights which I have, and it is my duty to see that others also enjoy their rights.” Laski has rightly said that one man’s right is also his duty. It is my duty to respect the rights of others as well as the duty to use my rights in the interest of society.
Rights originate in society. Therefore, while enjoying rights, we must always try to promote social interest. It is the duty of every one of us to use our rights for promoting the welfare of the society as a whole.
Since state protects and enforces rights, it also becomes the duty of all citizens to be loyal to the state. It is their duty to obey the laws of the state and to pay taxes honestly. Citizens should always be ready to defend the state. Thus a citizen has both Rights and Duties. He enjoys rights and performs his duties. Rights and Duties are the two sides of the same coin.