TYPES OF RIGHTS IN LAW

SUBMITTED BY

SOUMIKI GHOSH
Roll No-10
SIPUN SAHOO
Roll No-15
B.A.LL.B. (Hons.)
Semester- II

MAHARASHTRA NATIONAL LAW UNIVERSITY, AURANGABAD

IN
APRIL, 2019

Under the guidance of

Dr. Ashok Wadje,
Assistant Professor (Law),
Maharashtra National Law University, Aurangabad

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 CONTENTS

SR.NO COTENTS PAGE.NO

1 PREFACE 3
2 INTRODUCTION 4
3 FEATURES OF RIGHTS 5
4 THEORIES OF RIGHTS 6
5 TYPES OF RIGHTS 9
6 CONCLUSION 29
7 BIBLIOGRAHY 30
8 FURTHER SCOPE OF RESEARCH 31

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 PREFACE

Abstract: As we know, the term right has different significant meaning. The paper focuses on
analysis of rights according to the types of them. Detailed description of features of rights and
theories of rights are discussed in this project. We also tried to focus on how rights are
changing in the contemporary world according to the changing need of the society.
Awareness about rights and the arena of human rights are also given importance in his
project.

Scope of Research The scope of the research widens to discussing different theories given
about the concept of rights and also critically analysing the theories as per their applicability
in the modern world.

Research Questions What are rights?

What are the features of rights?

What are the theories of rights?

What are the types of Rights?

Are Legal Rights Conceptually Related to Other Types of Rights?

How the Conceptual Analysis of Legal Rights is done?

What Kinds of Entities Can be Legal Right-holders?

What is Exclusivity of Rights?

How analysis of legal rights is done?

Research Methodology In order to satisfy the objectives of the dissertation, doctrinal

research was held. It includes legal concepts and principles of all types. This paper aims at
establishing the proper concepts rights and their significance.

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 INTRODUCTION

Rights are those essential conditions of social life without which no person can generally
realize his best self. These are the essential conditions for health of both the individual and
his society. It is only when people get and enjoy rights that they can develop their
personalities and contributes their best services to the society. In simple words, rights are the
common claims of people which every civilized society recognizes as essential claims for
their development, and which are therefore enforced by the state. A right is described as an
entitlement or justified claim to a certain kind of positive and negative treatment from others,
to support from others or non-interference from others. In other words, a right is something to
which every individual in the community is morally permitted, and for which that community
is entitled to disrespect or compulsorily remove anything that stands in the way of even a
single individual getting it. Rights belong to individuals, and no organisation has any rights
not directly derived from those of its members as individuals; and, just as an individual's
rights cannot extend to where they will intrude on another individual's rights, similarly the
rights of any organisation whatever must yield to those of a single individual, whether inside
or outside the organisation.

According to Laski, “Rights are those conditions of social life without which no man can
seek in general, to be himself at his best.”

1. T. H. Green explained that “Rights are powers necessary for the fulfilment of man’s
vocation as a moral being.”
2. Beni Prasad stated that “Rights are nothing more nor less than those social conditions
which are necessary or favourable to the development of personality”

Other moral theorist like Isaiah Berlin defines rights in terms of positive liberties and
negative freedoms. A positive right is an entitlement to; A right to free expression, for
instance, entitles one to voice opinions publicly. A negative right is a freedom from; Freedom
of person is a right to be free of bodily interference. Most rights are both positive and
negative.

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FEATURES OF RIGHTS

1. Rights exist only in society. These are the products of social living.
2. Rights are claims of the individuals for their development in society.
3. Rights are recognized by the society as common claims of all the people.
4. Rights are rational and moral claims that the people make on their society.
5. Since rights are here only in society, these cannot be exercised against the society.
6. Rights are to be exercised by the people for their development which really means
their development in society by the promotion of social good. Rights can never be
exercised against social good.
7. Rights are equally available to all the people.
8. The contents of rights keep on changing with the passage of time.
9. Rights are not absolute. These always bear limitations deemed essential for
maintaining public health, security, order and morality.
10. Rights are inseparably related with duties. There is a close relationship between them
“No Duties No Rights. No Rights No Duties.” “If I have rights it is my duty to respect
the rights of others in society”.
11. Rights need enforcement and only then these can be really used by the people. These
are protected and enforced by the laws of the state. It is the duty of a state to protect
the rights of the people.

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THEORIES OF RIGHTS

There are compelling theories of rights offered by several theorists.

Utilitarianism

For the utilitarian, the just action is that which, relative to all other possible actions,
maximises utility or “the good” (defining “the good” is the subject of philosophical
conjecture and beyond our scope here). This is the utility principle. Utilitarianism is solely
consequentialist; the justice or injustice of an action or state of affairs is determined
exclusively by the consequences it brings about. If an action maximises utility, it is just. On
this account, therefore, rights are purely instrumental. It is also worth noting that many in the
utilitarian tradition have expressed hostility to the notion of rights of any sort. Utilitarian will
honour a right if and only if it will lead to the maximisation of utility. This statement also
indicates the limits of all rights. If the exercise of a particular will not maximise utility, the
utilitarian is obligated to violate that person’s rights for the sake of utility. The point at which
the letter of the right defeats the purpose (i.e. the point at which the exercise of a particular
right will not maximise utility) is the point at which society may justly curtail that right.

Rights are limited by the utility principle. If the exercise of a right maximises the good, the
right ought to hold. If it fails to do so, the right may be justly abridged.

Challengers of the utilitarian account of rights argue that in some cases it extends rights too
far and in other cases it restricts rights unjustly.

Kantianism (Deontology)

Kant proposes that the essence of morality is captured by what has been called the
Categorical Imperative. In below paraphrase, this reads:

Act only on those rules of action that you could be universal laws.

The Categorical Imperative is a rule for testing rules of conduct. It will exclude as immoral
any rule of conduct that implies that one person may do something but another, in relevantly
similar circumstances, may not. In other words, it demands consistency. What's all right for
me is all right for you if our relevant circumstances are similar. If I may throw my toxic
waste into the river to save money for myself, then you may do so likewise. But of course I
would not want you to do that, so it would be wrong for me.

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This is relevant to human rights, because we think of human rights as universally applicable
to human beings. And Kant says that what is morally permissible applies to all rational
beings. It is also relevant that this test tends to endorse rules of action that protect our most
basic interests, just the sorts of things that rights protect.

Kantianism is an explicitly non-consequentiality ethic. Kant believed that the consequences

of our actions are often determined by contextual factors beyond the control of the individual.
Honour and blame are only coherent concepts where the subject is responsible for what they
have done. In all appeals to consequences, the locus of responsibility must necessarily be
displaced to a broad array of factors, only one part of which is the agency of the individual in
question. Moral responsibility for consequence, therefore, is incoherent. Ethics must be a
matter of intentions, these being the only things we can evaluate without extrinsic influence.
The right action therefore is that which is done in conformity with our moral duty, regardless
of consequence.

In the Groundwork for the Metaphysics of Morals, Kant argued that one ought to “act only
according to that maxim whereby one can, at the same time, will that it should become a
universal law.” In other words, our own conduct is only ever just if we can in all conscience
will that every other person acted the same way. In the same work, he also professed that one
should “Treat humanity, never merely as a means to an end, but always at the same time as an
end.” Similarly, our conduct is only just if, in acting, we do not use any other person as a tool
to achieve our own objectives. In common way, our moral duty is to only act where our
actions satisfy the two tests outlined - universalizability and the ends/means requirement.

Laski’s Theory of Rights

Harold Laski, an influential figure and creative writer of political science, who authored
about 20 books, has expounded the theory of rights and it is in many respects a classic
representation. He describes rights as “those conditions of social life without which no man
can seek, in general, to be himself at his best”. Laski calls rights as conditions of social life.
Rights are social concept and deeply linked with social life. The essentiality of rights is
established by the fact that individuals claim them for the development of their best self. He
places rights, individuals and state on the same board in the sense that they cannot be
separated from each other and there is no antagonism between them. Laski recommends the
long-cherished view that the state has a very important role to play in the realisation and,
before that, recognition of human rights. On legal theories of rights, Laski examines the legal

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theory of state. The central principle of the legal theory of rights is that they completely
depend upon the institutions and recognition of state. An individual cannot claim rights if
those are not recognised by the state. Mere recognition, moreover, is not sufficient for the
exercise of rights. The state must, through law and institutions, implement the rights.

The most significant part of Laski’s theory is functional aspect of rights. It emphasizes on the
relation between right and duty. He stated that Rights are correlative to functions. The
functional theory emphasizes that an individual is entitled to claim rights only when he
performs duty otherwise the claim or demand for right cannot be entertained. This definitely
opposes widely known theory of legal theory of rights. But today, rights are recognised and
protected mainly on political considerations.

Barker’s Theory of Right

Barker’s view is not theoretically dissimilar from that of Laski. Both are liberal philosophers,
but Barker has a clear bias to idealism. The main purpose of every political organisation
called state is to see that the personality of the individual gets ample scope for development.
It is the duty of the state to guarantee and secure the conditions essential for that objective.
These secured and guaranteed conditions are called rights. Individual’s personality cannot
develop automatically or under most adverse or antagonistic environment. Development of
personality requires favourable conditions and these are to be guaranteed by the state through
the enactment of law.

Barker also discusses the moral aspect of rights. He says, that law of the state helps me to
secure rights. But rights are claims and the origin is the individual himself. The individual is a
moral person and it is his determination that he will develop his moral personality through the
rights. His purpose is not to inflict any harm upon the society. The implication of moral being
is,- he releases his best efforts for the general welfare of society.

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TYPES OF RIGHTS

Natural Rights
Many researchers have faith in natural rights. They stated that people inherit several rights
from nature. Before they came to live in society and state, they used to live in a state of
nature. In it, they appreciated certain natural rights, like the right to life, right to liberty and
right to property. Natural rights are parts of human nature and reason. Political theory
maintains that an individual enters into society with certain basic rights and that no
government can deny these rights.

In classical political philosophy “natural right” denotes to the objective rightness of the right
things, whether the virtue of a soul, the correctness of an action, or the excellence of a
regime. Aristotle stated in Politics (1323a29-33) that no one would call a man happy who was
completely lacking in courage, temperance, justice, or wisdom. A man who was easily
terrified, unable to restrain any impulse toward food or drink, willing to ruin his friends for a
trifle, and generally senseless could not possibly lead a good life. Even though chance may
occasionally prevent good actions from having their normal consequences, so that sometimes
cowards fare better than brave men, courage is still objectively better than cowardice. The
virtues and actions that contribute to the good life, and the activities intrinsic to the good life,
are naturally right.

The modern idea of natural rights grew out of the ancient and medieval doctrines of natural
law, but for other scholars, the concept of natural rights is unreal. Rights are the products of
social living. These can be used only in a society. Rights have behind them the recognition of
society as common claims for development, and that is why the state protects these rights.
John Locke (1632–1704), the most influential political philosophers of the modern period,
argued that people have rights, such as the right to life, liberty, and property that have a
foundation independent of the laws of any particular society. Locke claimed that men are
naturally free and equal as part of the justification for understanding legitimate political
government as the result of a social contract where people in the state of nature conditionally
transfer some of their rights to the government in order to better ensure the stable,
comfortable enjoyment of their lives, liberty, and property. Since governments exist by the
consent of the people in order to protect the rights of the people and promote the public good,
governments that fail to do so can be resisted and replaced with new governments.

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Moral Rights
Moral Rights are based on human consciousness. They are supported by moral force of
human mind. These are based on human sense of goodness and justice. These are not assisted
by the force of law. Sense of goodness and public opinion are the sanctions behind moral
rights.

If any person disrupts any moral right, no legal action can be taken against him. The state
does not enforce these rights. Its courts do not recognize these rights. Moral Rights include
rules of good conduct, courtesy and of moral behaviour. These stand for moral perfection of
the people.

Moral rights were first acknowledged in France and Germany, before they were included in
the Berne Convention for the Protection of Literary and Artistic Works in 1928. Canada
recognized moral rights in its Copyright Act. The United States became a signatory to the
convention in 1989, and incorporated a version of moral rights under its copyright law under
Title 17 of the U.S. Code. There are two major moral rights under the U.S. Copyright Act.
These are the right of attribution, also called the right of paternity and the right of integrity.

Legal Rights
Legal rights are those rights which are accepted and enforced by the state. Any defilement of
any legal right is punished by law. Law courts of the state enforce legal rights. These rights
can be enforced against individuals and also against the government. In this way, legal rights
are different from moral rights. Legal rights are equally available to all the citizens. All
citizens follow legal rights without any discrimination. They can go to the courts for getting
their legal rights enforced.

Legal Rights are of three types:

1. Civil Rights:

Civil rights are those rights which provide opportunity to each person to lead a
civilized social life. These fulfil basic needs of human life in society. Right to life,
liberty and equality are civil rights. Civil rights are protected by the state.

2. Political Rights:

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 Political rights are those rights by virtue of which inhabitants get a share in the
political process. These allow them to take an active part in the political process.
These rights include right to vote, right to get elected, right to hold public office and
right to criticise and oppose the government. Political rights are really available to the
people in a democratic state.

3. Economic Rights:

Economic rights are those rights which provide economic security to the people.
These empower all citizens to make proper use of their civil and political rights. The
basic needs of every person are related to his food, clothing, shelter, and medical
treatment. Without the fulfilment of these no person can really enjoy his civil and
political rights. It is therefore essential, that every person must get the right to work,
right to adequate wages, right to leisure and rest, and right to social security in case of
illness, physical disability and old age.

Human and Legal Rights

There is some difference between moral or human rights and legal rights. Legal rights require
for their justification an existing system of law. Legal rights are, roughly, what the law says
they are, at least insofar as the law is enforced. Legal rights gain their force first of all
through legislation or decree by a legally authorized authority. Those who support adoption
of laws establishing legal rights often appeal to a notion of human rights. Laws against theft
might appeal to notions of a moral right to own property. But human or moral rights must
gain their validity through some other source other than legal rights, since people can appeal
to human or moral rights to criticize the law or advocate changes in the law (or legal rights),
and people could not do this if moral rights were based upon the law.

Contractual Rights
Contractual rights originated from the practice of promise-keeping. They apply to particular
individuals to whom contractual promises have been made. Contractual rights ascend from
specific acts of contract making. They normally come into being when the contract is made,
and they reflect the contractual duty that another party has acquired at the same time. As a
result of a contract, party A has a contractual duty, say, to deliver some good or service to
party B, who has a contractual right to the good or service. Contractual rights may be upheld
by the law, and in that sense can rest upon legal rights, but it is possible to conceive of

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contracts made outside of a legal framework and to rest purely upon moral principles.
However, such contracts are less secure than contracts made within a legal framework, for
obvious reasons. There are numerous examples of contractual rights such as:

-Rights to purchase a particular product or service

-Rights to be sell a product or service

-Rights to be the only seller or buyer

-Rights to delivery and timely payment

-Rights to refunds or repairs

-Various rights according to the specific intentions of each party

Legal Rights

Legal rights are, clearly, rights which exist under the rules of legal systems or by virtue of
decisions of suitably authoritative bodies within them. They raise a number of different
philosophical issues. (1) Whether legal rights are conceptually related to other types of rights,
principally moral rights; (2) What the analysis of the concept of a legal right is; (3) What
kinds of entities can be legal right-holders; (4) Whether there any kinds of rights which are
exclusive to, or at least have much greater importance in, legal systems, as opposed to
morality; (5) What rights legal systems ought to create or recognise. Issue (5) is primarily one
of moral and political philosophy, and is not different in general principle from the issue of
what duties, permissions, powers, etc, legal systems ought to create or recognise. It will not,
therefore, be addressed here.

A preliminary point should be mentioned. Do all legal systems have a concept of rights?
Their use is pervasive in modern legal systems. We talk of legislatures having the legal right
to pass laws, of judges to decide cases, of private individuals to make wills and contracts; as
well as of constitutions providing legal rights to the citizens against fellow citizens and
against the state itself. Yet it has been suggested that even some sophisticated earlier systems,
such as Roman law, had no terminology which clearly separated rights from duties
(see Maine (1861), 269–70 ). The question is primarily one for legal historians and will not
be pursued here, but it may be remarked that it may still be legitimate when describing those
systems to talk of rights in the modern sense, since Roman law, for example, clearly achieved

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many of the same results as contemporary systems. Presumably, it did so by deploying some
of the more basic concepts into which rights can, arguably, be analysed.

1. Are Legal Rights Conceptually Related to Other Types of Rights?

The position of many important writers on legal rights is difficult to ascertain on this point,
because it is not one they addressed directly. Hohfeld (1919), for example, confined his
discussion entirely to legal rights and never mentioned moral ones. Hart did write about
moral rights (1955, 1979) as well as legal ones (1973, 1994), but not in a way that allows for
much direct comparison. Bentham (1970 [1782]) wrote extensively about the analysis of
legal rights, but, notoriously, thought that the idea of natural moral rights was conceptual
nonsense.

Mill (1969 [1861]), whilst endorsing Bentham’s overall Utilitarian position, did not share his
scepticism about moral rights, and seems to have thought that moral and legal rights were,
analytically, closely connected — “When we call anything a person’s right, we mean that he
has a valid claim on society to protect him in the possession of it, either by the force of law,
or by that of education and opinion.” Those things which ought to be so protected were, in his
view, those which concerned the fundamentals of human well-being, and were therefore a
sub-set of those things which a person ought to have on grounds of utility.

Whilst not necessarily sharing Mill’s view about all rights being related to fundamentals of
well-being, many contemporary writers (e.g., Raz 1984a, 1984b; Wellman 1985, 1995) agree
that the core concept of a right is something common to law and morality, though some have
argued that jurisprudential writers, particularly Hohfeld, provide a better and clearer starting-
point for general analysis than previous writers in moral philosophy. The view that the core
concept is common to both would appear to be consistent with maintaining that, nevertheless,
in terms of justification in practical reasoning, legal rights should be based on moral ones.

2. The Conceptual Analysis of Legal Rights

Not all philosophers have agreed that rights can be fully analysed. White (1984), for example,
argued that the task is impossible because the concept of a right is as basic as any of the
others, such as duty, liberty, power, etc (or any set of them) into which it is usually analysed.
He agreed, however, that rights can in part be explained by reference to such concepts.
White’s approach, based largely on close linguistic analysis, has remained something of a
minority one.

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The remaining approaches can be categorised in different ways, but a main division is
between those who think that rights are singled out by their great weight as practical reasons,
and those who think that rights are not special in this regard, but instead are to be analysed
into duties, permissions, powers, etc, or some combination of these, perhaps with the addition
of other conditions.

Dworkin (1973, 1975, 1981, 1986), in one formulation of his theory of rights, was a
proponent of the first view. According to that, rights enjoy a 14ubjective14 priority in weight
over any other consideration which is not itself right-based. Clearly, it is true of many legal
systems that constitutional rights, or some of them, should outweigh any other consideration
which is not itself derived from a constitutional right. But that seems to be primarily because
of the constitutional status of the right. Both in law and in morality many rights are of a rather
trivial nature. In morality such rights can, arguably, sometimes be justifiably outweighed
even by considerations of personal convenience (cf. Raz 1978). Similarly in law it seems that
many prima facie rights can be defeated by what the court regards as considerations of the
general interest. Dworkin’s (1977) response to the latter type of criticism was to argue that,
on closer inspection, the consideration opposing the right can be seen as itself an instantiation
of another general right. But this depends on the contentious claim that the only
considerations that courts can justifiably rely upon are pre-existing rights. The objection has
also been raised that, as a general theory of the nature of rights, it risks being self-defeating,
since any consideration whatsoever can then be argued to be right-based, which leaves rights
with no special role in practical reasoning. (For discussion of Dworkin’s theory, including his
other formulations, see Yowell 2007.)

Most writers have, instead, favoured the view that rights are to be analysed into other, more
basic, notions, principally those of duty, permission and power, with perhaps the addition of
other criteria. This means that not all rights will be of great importance. Their importance will
vary with the strength of the grounds for the duty, permission or power. Before looking more
closely at these accounts, another point should be mentioned. Theorists are divided between
those who think that rights are, as it were, the ‘reflex’ of the duty, permission or power, and
those who think that the right has a priority over them. The question is whether the duty, etc,
grounds the right, or the right the duty. Most older writers (e.g., Bentham, Austin, Hohfeld,
Kelsen) appear to have adhered to the first view, whilst more recent writers (e.g.,
MacCormick, Raz, Wellman) take the second. The second view has the implication that the
force of a right is not necessarily exhausted by any existing set of duties etc, that follow from

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it, but may be a ground for creating new duties as circumstances change. This latter view
seems to accord better at least with the way that constitutional legal rights work.

Amongst those who think that rights can be analysed, at least in part, into duties, permissions
and powers, there is a further main division. Some think that the essence of a right is to have
choice or control over the corresponding duty etc. Others think that the main thing is that
one’s interests are protected by the duty etc. Hart and Wellman are amongst the proponents of
the first view, Bentham, Austin, MacCormick and Raz are amongst those maintaining some
version of the second.

An outline of Hart’s (1973) theory may be given as an illustration of the first view.
According to Hart, someone (call him ‘X’) may be a legal right-holder primarily in one of
two ways. First of all, X may have a bilateral permission to perform some action, i.e., X is
permitted both to A and to not-A(together with there being some prohibitions on others
interfering). Secondly, someone else may have a duty (e.g., to pay X £10) over which X has
control, primarily by waiving or enforcing it. Since X has a choice in each case that explains
why he is referred to as being a right-holder. One difficulty about this kind of theory is to
explain our apparent reference to rights when there is no choice, eg when one is not only
entitled to vote in elections, but also obliged by law to do so.

Two different versions of the interest theory can be seen, corresponding to the question about
the priority of rights mentioned above.

According to older versions, such as those of Bentham and Austin, X is a right-holder

because he is the beneficiary, or intended beneficiary, of another’s duty, or perhaps of the
absence of a duty on him which the law might otherwise have imposed. For example, if X has
a right to be paid £10 by Y, then this is explained by saying that Y has a duty, the performance
of which (handing over the £10) is intended to benefit X. One problem about this theory is to
explain why the criminal law, although it may in part exist to protect moral rights, is not
generally regarded as directly conferring legal rights on individual citizens, despite the fact
that they are intended beneficiaries of the corresponding duties. (There may, of course, in
many systems be parallel civil law rights, but that is a contingent matter. See more on this
point below.)

A more modern version of this theory was proposed by MacCormick (1977), who argued that
a right-holder was the intended beneficiary of a specific share of benefit, rather than just

15
being a generalised beneficiary of the rules. However, even with this amendment, it remains
difficult to explain third party rights under contracts. Suppose X and Y enter into a contract
which imposes duties on each of them with the intention that performance of these will
benefit Z. According to the theory, Z must (conceptually) be a legal right-holder. But it is in
fact an entirely contingent matter as to whether Z is or not. Some legal systems recognise Z as
having rights in such a situation and others do not. In Britain, for example, Scots Law long
recognised such rights under certain conditions, but English Law did not until the position
was changed by statute in 1999.

More recent versions, such as those of Raz (1984a, 1984b), take a different tack altogether.
According to them, to say that X is a right-holder is to say that his interests, or an aspect of
them, are sufficient reason for imposing duties on others either not to interfere with X in the
performance of some action, or to secure him in something. This, inter alia, gets round the
third-party rights’ problem, because the explanation is simply that it is all a question of
whether the system recognises the interests of Z as part of the reason for X and Y’s duties, or
whether it is only the interests of Xand Y. Raz (1997) has emphasised that this does not mean
that only the right-holder’s interests are relevant to the question of whether something should
be recognised as a right. Considerations of the general or common interest may be relevant
too.

Whilst discussion has continued on the relative merits of the choice and benefit theories, and
ever more sophisticated versions of each have been proposed (see, for example, the three-
sided debate in Kramer, Simmonds and Steiner 1998, Kramer 2010, Vrousalis 2010, Van
Duffel 2012), some writers have attempted to offer different, or combined, approaches.
Wenar (2005) argues for what he calls a ‘several functions’ theory. According to this, any
‘Hohfeldian incident’ (or combination of them) which grants exemption, discretion or
authorisation, or entitles the holder to protection, provision or performance is a right. Kramer
and Steiner (2007) claim, however, that this is really no more than another version of benefit
theory, and not superior to existing ones. Another proposal is made by Sreenivasan (2005),
which is intended to apply only to claim-rights and not to other varieties of right. The essence
of it is that Y has a claim-right that X perform an action if and only if Y’s measure of control
over X’s duty matches (by design) the measure of control that advances Y’s interests on
balance. This, too, is criticised by Kramer and Steiner (2007) on the basis that it would
include the case in which someone has, on the basis of his own interests, deliberately not

16
been granted any such power at all. Yet this, they claim, would lead to a highly implausible
expansion of the class of those who would have to be regarded as right-holders.

A number of subsidiary questions can be raised.

Firstly, should rights be analysed solely in terms of duties on others (together with some other
condition), or do we need to bring in also other concepts, such as permission, power and
immunity? Hohfeld thought that, strictly speaking, something was a legal right only if it
corresponded to a duty on another, but he argued that legal usage was often confusing
because the reference was really to one of the other concepts. Thus, in his view, the law
sometimes also said that X had a right if (1) he had a permission to A, (2) he had a legal
power to A, (3) Y had no legal power to affect him.

While some (e.g., d’Almeida 2016), have maintained that Hohfeld was correct to assert that
liberty-rights involve only permissions, others (e.g., Waldron 1981 and Raz 1984a, 1984b)
have been exponents of the view that rights should be seen as giving rise only to duties. Hart
(1973), following Bentham, had argued that a liberty-right should be seen as a bilateral
permission to A together with duties on others not to interfere with X’s A-ing. Waldron and
Raz argue that it is an important feature of rights that they entitle the right-holder to do not
only that which is right, but also (within bounds) that which is wrong. This they regard as
best explained by seeing rights as imposing only duties of non-interference on others, not as
granting the right-holder a permission. (See also Herstein 2012, 2014.) An alternative view
(Campbell 1997) is to see some rights as indeed granting permissions, but to point out that in
granting a legal permission the law is not saying that there may not be reasons against
performing the action, only that (within the bounds of the permission) the law will act as if
there were not.

Powers raise a different issue. Many writers (e.g., Hohfeld 1919, Hart 1973) have considered
them as being a type of right. By a legal power we mean the ability to bring about changes in
legal rules or their application (plus some further conditions). Usually, of course, the
lawmaker in granting a power also grants a right to exercise it, but occasionally this is not so,
for example where the exercising of the right would itself be a crime or a civil wrong. In
English Law, for example, until the position was recently changed by statute, a thief had, in
certain special circumstances, the legal power to pass good title in the goods he had stolen to
a third party, even though by doing so he committed a civil, and possibly also a criminal,

17
wrong. This seems to indicate that powers should not be thought of as being rights
themselves.

Powers also illustrate a general problem about the analysis of legal rights, and arguably of
rights in general. Namely that of whether an element should be seen as part of the very
essence of the concept of a right, or whether it is merely an element in that which is
(contingently) its content, i.e., that which there is a right to do or have.

Relatedly, of the four fundamental types of rights which Hohfeld claimed to identify,
immunities raise problems, though somewhat different ones. An immunity arises when Y has
no power to change X’s legal position. But is an immunity itself a right or is it simply a
means of protecting a right, i.e., by making it immune from removal or alteration? As with
powers, views have differed about this.

3. What Kinds of Entities Can be Legal Right-holders?

There has been much dispute amongst philosophers as what to kinds of entities can be right-
holders. Corresponding pretty much to the general dispute about the very nature of rights,
some have argued that any entity which would benefit from the performance by others of
legal duties can be a right-holder; others that it has to be an entity which has interests; others
that it has to be an entity capable of exercising some kind of control over the relevant legal
machinery. And there are variants of all these positions.

There has to be a sense in which legal systems can confer rights on such entities as they
please. This is because it has long been recognised that legal systems can regard as legal
persons such entities as they please. In England, for example, ‘the Crown’ has, for centuries,
been regarded as a legal entity, although what this means in terms of office-holders, far less
the actual human beings who occupied those offices, has changed greatly over that time.
Likewise, all modern societies recognise the legal existence as persons of companies or
corporations and frequently of such entities as trade unions, government departments,
universities, certain types of partnerships and clubs, etc.

One of the most contentious areas in recent years has been whether young children, the
severely mentally ill, non-human animals, areas of endangered countryside, etc, can properly
be regarded as legal right-holders. Clearly anyone who has locus standi before a court must
be a holder of some rights within the system. But it does not seem to follow automatically
that an entity which does not, or which is physically or mentally incapable of bringing a legal

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action, is not thereby a right-holder. For it may be the intention of the system that the
interests of that entity should be represented by another person. Given then, that all these
entities may be protected by law, and that someone can bring some kind of legal action to
ensure that those duties are enforced, when would we say that the entity itself is a right-
holder and when not?

The answer will often turn upon whether one embraces an interest- or a choice-theory of
rights. MacCormick (1976), for example, argued that any theory of rights which could not
accommodate children’s rights must be deficient, and this was a reason, in his view, for
adopting an interest theory. Wellman (1995), on the other hand, claims that to assert that very
young children or the severely mentally ill can have legal rights is to distort the concept of a
right, since they lack the relevant control of the legal machinery. Instead, he argues, the
relevant rights should be seen as belonging only to those who can bring the relevant actions
on their behalf. For example, in his view a very young child would not have a right not to be
negligently injured by the conduct of another. Rather, it would be the case that the child’s
parent had a right that their child not be negligently injured. One difficulty about this position
appears to be that it does not easily square with the 19ubjecti remedial rights (e.g., to
damages) that the law would recognise. In this example the law would clearly compensate the
child’s loss in being injured, not the parent’s loss in their child being injured (though the
latter might be a separate ground of action in some systems).

4. Exclusivity of Rights

The issue here is: whether there are any fundamental aspects of rights which are exclusive to,
or at least more important in, legal systems, as opposed to morality.

Five particular sub-issues may be raised here.

4.1 Primary and Remedial Rights

Remedial rights are those which arise because of a breach of a primary one. Clearly they arise
also outside the law, for example a duty to apologise or make amends even if there is no legal
obligation to do so. But legal remedial duties are generally more precise, and, just by the
nature of law, institutionalised.

It is one of the main functions of legal systems to provide remedies for breach (or sometimes
anticipated breach) of the primary rights which they confer. So if someone is injured by the
negligence of another there will usually arise a remedial right to damages. If he is killed there

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may arise in members of his family an independent right to compensation, and so on. Other
types of remedial right can include those for court orders requiring the party at fault to
execute, or refrain from, some particular course of action, very often that which they had a
duty to do, or to refrain from, under the primary right. Such rights are often very complex in
the detail. For example the measure of damages may be different if the wrongful act is a
tort/delict, as opposed to a breach of contract. Likewise, in many systems, some remedies
must be granted as a matter of right whilst others are at the discretion of the court. By way of
illustration of the remedies in the two British legal systems, reference may be made to
Lawson (1980) and Walker (1974).

Usually remedial rights will themselves have further remedial rights attached, for example, to
have the court impose a more coercive order, perhaps with the threat of a criminal or quasi-
criminal sanction, or to have a person’s assets frozen or confiscated, in the event, for
example, that someone has failed to pay damages previously awarded by the court. The
details of these further remedial rights vary from system to system.

A related, more controversial, point is as to whether criminal, as opposed to civil, law confers
any legal rights on the citizens protected by it. The orthodox view is that it does not, although
there may well be a parallel civil right. Take the case of someone who is wrongfully
assaulted. In most legal systems this will be both a crime and a tort/delict. The civil law
clearly gives a remedial right, eg. To sue for damages. But since, in most jurisdictions, it is
mainly (and sometimes exclusively) the state which decides whether to prosecute for the
criminal aspect, the more usual view is that the citizen has no legal right corresponding to the
criminal aspect.

The issue is often complicated, legally, by the absence of clear indication from the legislature
as whether it intended, by a particular statute, to create only a crime or also to confer civil law
rights on citizens. A further complication can be that criminal courts sometimes exercise a
quasi-civil function (e.g., to make a restoration or compensation order after a conviction for
theft), and vice versa (e.g., the power of a civil court to award punitive or exemplary
damages).

This issue is different from that of whether criminal law can act to recognise and protect
moral rights. It seems possible to suggest that it can, since moral rights can be protected not
only by legal rights, but also by legal duties on others (without corresponding legal rights).
For example, a legal system could create a criminal offence of harassment in order to protect

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a moral right to privacy, without thereby necessarily recognising a legal right to privacy, i.e.,
something which would act as a positive reason in favour of privacy in interpreting unclear
rules, or in developing the law.

4.2 Conditional Rights

In the case of many legal rights a condition has to be satisfied for their possession or exercise.
This, in itself, does not make legal rights different from many moral ones. Just as one has a
legal right to damages for assault only if one has been assaulted, one has a moral one to an
apology for being insulted only if one has been insulted. But legal rights can give rise to more
complicated situations, which rarely arise in morality.

In the above examples we can say that the right-token, as opposed to the right-type, comes
into existence only when the condition for its instantiation is triggered. But legal systems
sometimes say that that the right-token exists before one of the conditions for the exercise of
the right exists. Essentially, it is the difference between saying “if p, X has a right to A” and
“X has a right, if p, to A.” In the latter case the implication is that the right-token exists now,
not just that it will exist. Why should we say this? One proposed answer is that legal systems,
unlike morality, have devised sets of rules for transmission of rights even before the
triggering condition for the exercise of the right has arrived.

Suppose, for example, that X, under his will, left a sum of money to Y, on condition
that Y had attained the age of 21. It may be that the correct way of understanding the
provision, under the rules of the legal system, is that only if Y had attained 21 when X died
does he have a right to the money. But it may be that the correct way of understanding it as
saying that Y, even if he has not attained 21 when X dies, acquires a right to the money, but it
is to be paid only when he is 21. One practical difference is that in the latter case the right can
pass to Y’s successor in title if Y, having survived X, nevertheless dies before he is 21. In the
latter case, lawyers describe the right as ‘vested.’ There can be many complex legal rules
relating to this type of situation, and they vary greatly from jurisdiction to jurisdiction.
Reference should be made to textbooks, primarily on testamentary succession, in the
jurisdiction.

4.3 Property Rights

A further particular kind of legal rights, or group of rights, which has received an increasing
amount of attention from theorists is that of property rights. Discussion of this belongs more

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properly to that of property itself — see the entry on property. Only some very brief points
will be made here.

The first is as to whether property rights, and hence the concept of property, are essentially
legal in their nature, or whether they are more general social phenomena which are simply
recognised and protected by law in all modern societies. According to Bentham (1843) “ …
there is no natural property … property is entirely the creature of the law.” Bentham’s
argument is essentially that what we mean by property is security of expectation in being able
to keep, sell, use, etc, objects, and only the law can guarantee such security.

On the other hand, it is certainly possible to talk coherently about property in a way that does
not necessarily correspond to the legal position. A parent may for example say to a young
child that a certain toy is theirs, though in law it is the parent’s. Likewise it may be plausible
to claim that concepts of ownership and possession, though they may be less securely
protected, can exist in societies which do not have anything that we normally recognise as a
fully-fledged legal system. Some people will perhaps regard these kind of examples as
indications that the concept of property is not essentially legal, whilst others may incline to
the view that these are simply metaphorical extensions of a concept which is legal au fond.

Secondly, it should be noted that, in law, property rights can be of many different types.
Although ownership is obviously one of the most important, another major class is that of
possession, whether temporary or relatively permanent. For example, the right to use a car
which one has hired for a week or to live in a certain house for the rest of one’s life. Yet other
types, falling short of either ownership or possession, could be, for example, to walk across
the local farmer’s field or have one’s next-door neighbour maintain his side of the joint
garden wall.

The details of property rights vary from jurisdiction to jurisdiction perhaps more than those of
almost any other types of right. Further, many jurisdictions have different rules relating to
property rights in land (and its fixtures) as opposed to all other types of entity. For these
details reference should be made to specialist books in the 22ubjective22n. (Cf. Hume 1740,
Book III, Section III, where he discusses the notions that, in his view, lie behind rules of
occupation, prescription, accession and succession, by which property may be acquired. He
points out that not infrequently one cannot sensibly claim that a rule of particular content is
better than one of somewhat different content. The important thing is, rather, that some legal
rule on the matter exists.)

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Even when considering just ownership, there is debate amongst theorists as to how this
should be analysed. Some see it as essentially a cluster of other property rights of particular
content, such as those to possession, income, etc, whilst others see it as being basically a
structural relation between rights, content being comparatively irrelevant. For example as
being the person to whom possession or use, even though those may presently belong to
others, would ultimately return if a certain series of contingent events were to occur.

For further discussion of property in a philosophical context see Honore 1960, 1961; Becker
1977; Waldron 1988; Munzer 1990; Campbell 1992; Harris 1996; and Penner 1997. (Some of
these are concerned more with the moral justification of ownership.)

4.4 Subjective Rights

The above account of rights has been written largely from the point of view of Anglo-
American law and philosophy. It should, however, be mentioned that there is one aspect of
legal rights which is to be found amongst the European Continental writers, but of which
there is no trace in the Anglo-American tradition. That is the description of rights as being
‘subjective’ (droits subjectifs;23ubjective Rechte).

In French and in German the same word (droit, Recht) serves as the noun which refers both to
rules of law and the rights which are created by them, and therefore disambiguation is
required.

In French law the distinction is drawn by distinguishing between le Droit objectif (the noun
spelt with a capital according to some, but not all, writers) and les droits subjectifs. (For
general discussion see, for example, Cornu 2014.) However, French law seems at the same
time to confine the term ‘droits subjectifs’ to a sub-class of legal rights, namely rights which
are primarily those of private citizens, eg to make a will or contract. The term appears not to
extend to such rights as those of a government agency owning property or a government
minister making a legal order under delegated powers.

German law seems to draw a basically similar distinction between ‘das Recht’ and ‘subjektive
Rechte’ (see, for example, Dietl & Lorenz 2016/2005).

4.5 Means of Conferring Legal Rights

Many of the issues relating to this are not confined to rights, but are shared with duties and
powers, so only a brief outline will be given.

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In most modern legal systems certain fundamental rights are conferred by the constitution.
This usually gives them a certain degree of priority over competing legal considerations, but
this can vary from system to system. Sometimes constitutional rights will have an absolute
priority over any other consideration not itself based on a constitutional right. Sometimes
they will merely favour one legal outcome rather than another, without dictating it.

Constitutions will vary, too, as to whether certain rights are ‘entrenched’ or not.
Entrenchment can be absolute, in which case the rights cannot be removed or altered by any
constitutional means (as is the case with some of the ‘basic rights’ in the German
Constitution), or it can be relative, requiring only a more onerous procedure than that for
normal legislation (as with the Constitution of the USA.).

Constitutions will also vary on the extent to which human rights recognised under
international law or treaty are recognised in national law. For example, in some countries in
Europe, the European Convention on Human Rights, and decisions of the European Court of
Human Rights thereon, are incorporated into national law and override any national law
inconsistent with them. In others, such as the United Kingdom, the courts have, so far as
possible, to interpret legislation to be consistent with the Convention, but have no power to
strike it down even if they find it to be clearly inconsistent.

Other rights can be conferred by normal legislation or by common law (ie. The tradition of
judge-made law). One interesting point is that, arguably, many legal rights are conferred by
no positive law, but arise simply from the absence of any law to the contrary. That is, it is
probably a practical necessity that every legal system has an unwritten ‘closure rule’ to the
effect that whatever is not prohibited is permitted. If some types of rights are essentially
permissions, then many such rights arise in this way. In most legal systems my right to cross
the street, for example, is of this nature. Probably no positive law will say that I can do so,
and possibly no more general enacted right will imply it.

The term 'Right' in ordinary sense, means, " the standard of permitted action within a certain
sphere . It means the standard of permitted actions by law, such permitted action of a person
is known as his legal right. Any action of a person permitted by law is called 'right' similarly ,
the expression 'legal right' means " the standard of permitted action by law. A legal right may
be distinguished from a moral or natural right. Legal right is an interest recognized and
protected by law. In short legal rights are legally protected interest. If any person violate the
legal right it would be a legal wrong, and for such legal wrong there is legal remedy.

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Legal Rights may be classified under following heads :

1) Right in Rem and Right in Persona -

'Rem' means world and 'Persona' means persons. The Right in Rem is the right available
against the whole world while right in Persona is the right against a particular person. Right
in Persona generally arises out of contractual obligations for example - breach of contract.
Whereas right in rem is generally outcome of law.
For example -

Tort, Crime.

Right in Persona is generally transitory in nature, which can be transferred in right in rem.
Right in rem is a final thing, whereas right in Persona is transitory in nature.

2) Personal and Proprietary Right -

Personal right is in respect of person of owner of right whereas Proprietary right is in

respect of property of which the person is an owner. Proprietary Rights are those, which
constitute a man's property or wealth. These are the rights, which possess some economic or
monetary value and constitute the estate of the Person. Right to land, debts and Goodwill or
patent rights are all Proprietary right.
Personal right includes right to safety, to repetition Personal rights are also important like
Proprietary right. For example - right to reputation. Personal Rights is having no economic
value. They relate to Person's well-being or status.

3) Positive and Negative Rights -

Positive rights have corresponding Positive duty. Positive right therefore the right when
some positive act is required to be done by the person who has the corresponding duty. Thus
the person on whom such duty lies must do some positive act.

While on the other hand negative rights are those rights when some negative act by way

25
of omission is required. Negative rights correspond to negative duty, and the person on whom
such negative duty lies shall omit (not to do) such act.

4) Principal and Accessory rights -

The principal right is a basic or main right vested in Persona under law. They are Vital
and important Rights. While accessory right is incidental or consequential right. They are not
essential but are apparent to the more basic general right.
5) Perfect and Imperfect Rights -

Perfect right corresponds with perfect duty. Perfect rights are recognized and also
enforced by law and an action can be taken against the wrongdoer by filing a suit in Court of
Law for the breach of it.
While Imperfect right corresponds with Imperfect duty, which are not recognized by law and
hence cannot be enforced by law.

For example 'A' advanced loan to 'B'. 'B' is bound to repay that Loan. 'A' has perfect right to
recover loan from 'B' and 'B' has perfect duty to pay the amount of loan to 'A'.
If 'B' failed, then 'A' can file Suit against him in court of law for recovery of loan. But if it is
time-barred loan, for example no suit filed within the limitation period (within 3 years) and
'A' was sleeping over his right for a pretty long time. 'A' can claim for the same as it becomes
imperfect right which cannot be enforced by law.

6) Right in Re-proporia and Right in Re-aliena -

Right in Re-proporia is a right in respect of one's own property. Right in Re-proporia

contemplates absolute ownership. Thus it is the outcome of jurisprudence aspect of
ownership.

Whereas right in Re-aliena, is the right in respect of property of another person. Right in
Re-aliena is the outcome of jurisprudence aspect of dominant heritage and servient heritage.
For example - right of easement.

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7) Vested and Contingent Right -

Vested and Contingent rights are depending on the relationship as to owner of right and
right itself. Vested right means which is already vested in person, the person already has such
right through it depends upon the happening of certain events, that event is going to happen.
(See also... Vested interest)

Whereas is in Contingent interest the right is dependent upon happening or non-

happening of certain events which may or may not happen.

(See also.. Difference between vested interest and contingent interest)

8) Legal and Equitable Right -

Legal rights are the rights given by common law Courts of England. Common law
was based on statute by way of custom, usage. Equitable rights are the outcome of law of
equity given by the court of chancellor, or equity Court based on principle of natural justice
and conscience of Lord Chancellor.
By Judicature Act 1873, 1875 both systems are unified, but as per J. Snell 'Both the systems
flow in one stream but their water does not mix.'

After the unification of the both these systems English law came into existence. But still
there are certain principles and rights, which are classified as equitable right and legal right.

9) Corporeal and Incorporeal Right -

Here a fine distinction is made of the subject matter of the right. Corporeal rights are
having physical existence. For example - I owned a book, the book has physical existence, so
my right in respect of the book, is Corporeal in nature.

Whereas incorporeal rights are those right in respect of such subject matter having no
physical existence. For example - copyright of the book or trademark. Both Corporeal
27
Incorporeal rights are legally protected rights.

10) Primary and Sanctioning Right -

Primary right is basic right. It is independent Right. These are the right ipso facto. For
example - right in rem; right to reputation, Right to satisfy is the primary right. If right of
reputation is violated then there is legal remedy. In Tort or in Crime. There is force behind it.
Sanctioning rights are the consequential rights. They are not right ipso facto. They are right in
Persona, which originate from some wrong. For example - from violation of another right.
Thus Sanctioning Right is supporting right to primary right.

11) Public and Private Rights -

Public Rights are those Vested in by state. For example - right to use High-way, right to vote
etc. A private Right is one which is exercised by an individual to protect his benefit.

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 CONCLUSION

As we discussed earlier, when a person claims a right he must show a title thereto in a broad
sense all rights flow from the law, since it is only through the protection of the law, that legal
rights gains its efficacy. Sometimes however, a right may be granted directly by the law
without the consent of the person bound, e.g.: the general rights of la of torts. Jurisprudence
frequently refers to these rights as arising ex lege. Other rights are created by consent through
a juristic act, or else from a happening of a particular event. Secretary to the department of
Justice and Law, Khanrinla T Koza in her address said the work of Legal Services Authority
should not only be confined to free legal aid but also creating legal awareness by spreading
legal literacy. We can conclude by quoting her statement-
"We are dealing with the weakest section of the society, who are not only economically and
financially poor but also ignorant of their legal rights due to lack of education,".

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 BIBLIOGRAPHY

1) DIAS JURISPRUDENCE , FITH EDITION ,By R W M Dias

2) A Textbook of JURISPRUDENCE , FOURTH EDITION ,By
G.W.Patron

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 FURTHER SCOPE OF RESEARCH

The further scope of this research can be explained as the doctrine of extension of rights.
There are many ways in which rights may be extinguished. In some system of law this
question is discussed I relation to each type of right, but this approach, however necessary in
dealing with the minutiae of any one system, is inappropriate for jurisprudence. Further
research can be done on the reasons and effects of extension of different rights.

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