616

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 ofothers, 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

 617

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 ofhis 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 wishes12. 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: Jurisprudence
2 Prof. HOLLAND : Jurisprudence
3 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
 619

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 adequatelyfulfill 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 ofjustice.

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.217

2 The doctrine of constructive mens applies in such cases.
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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
 627

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 ofsociety".

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".
 630

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 ofpower 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"
t
and
"protection" by the rule ofjustice which are-indispensable for a legal right.
 631

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

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.18

2 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.52

2 JENKS EDWARD : The new jurisprudence, P.I76
3 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.56

2 DICEY : Law of the Constitution, (9th Edn.) P.23
3 IVOR JENNINGS : The Law of the Constitution, (3rd Edn.), P.314
4 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.287

2 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 Locke

2 HOLMES : The Common Law, P.214
3 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 ofthe 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 5and 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.183

2 See, DIAS, Jurisprudence (1964) P.221; Also superstition or rationality in action for peace, P.l 18
3 Bradford Corpn. V. Pickles, (18950 A.C. P.587
4 HOLLAND : Jurisprudence, P.83
5 GRAY : The Nature and Sources of Law, PP 12, 18
6 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.88

2 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. Andfinally,
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 ofsuch 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.223

2 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.229

2 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 ofRight 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 ofRight 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 (Liberty) or
(Claim) Privilege
f------ *

(Duty) r4------- No Right

(No-claim)

Power Immunity

Liability or Disability or
(Subjction) (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.232-33

2 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.

ft
1 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 andjus 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 Rights in Personam
1) Most of the rights in rem are 1) Almost all the rights in personam
created by the tort law are contractual
2) They are also sometimes called 2) They emphasize personal
rights or rights in respect of a thing relationship.
3) Almost all rights in rem are 3) Most of the personal rights are
negative positive.
4) They afford protection against the 4) They are available against some
whole world or against an determinate individual or
indeterminate section of the public individuals

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
 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 personal rights may be summarized as
follows:
Proprietary Rights Personal Rights
1) Proprietary rights are matter of 1) Personal rights are a matter of
man’s wealth man’s well-being.
2) According to SALMOND they are 2) They have no monetary value.
valuable.
3) Proprietary rights can be inherited. 3) They are not inheritable.
4) Proprietary rights are permanent in 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

 671

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.
 672

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
 673

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.
 674

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.141

2 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

 676

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
 677

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
 678

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:
Legal Rights
1) Legal rights were recognized by
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.
Equitable Rights
1) 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
 679

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.
 680

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
 681

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 headfor 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”.

\
 682

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
 683

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
 684

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.