Rights and duties

The concept of rights and duties is usually associated with democratic ideals. One generally
associates rights with freedom or benefits which are morally good, justified or acceptable 1 which
one is entitled to, while duties are associated with moral or legal obligations.

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 other words. 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 compulsory remove anything that stands in
the way of even a single individual getting it. 2

Rights are generally divided into two distinct categories, namely that of natural and legal
rights. Natural rights are rights that are independent of laws and customs, they are universal and
inalienable rights that are available to all. Legal rights on the other hand are such rights that are
legally bestowed upon the people by a legal system set in place. Unlike natural rights, legal rights are
not universal; instead they differ from place to place and can be repealed or modified with the
passage of time. The main difference between the two is the sanction between them, the violation
of a alegal right is redressed by the state while the violation of a moral right is only rebuked by
society.3

Kinds of rights

1. Perfect and imperfect rights:

A perfect right is one which corresponds to a perfect duty, and a perfect duty is one which is not
only recognised by the law but also enforeced by it 4. So a perfect rights is not only one which is
recognised by the law but one which is enforced by it. Enforceability is the rule or test which
distinguishes a perfect right from an imperfect one.

Imperfect rights, on the other hand, are those which although recognised by law, are
unenforceable, such as certain claims barred by lapse of time, or the directive principles of state
policy under the Indian constitution.5 In cases of rights barred by the lapse of time, such lapse does
not destroy the right it merely reduces such right from a perfect right to an imperfect right. It shall
remain valid for all purposes save that of enforcement. These imperfect rights are exceptions to the
maxim ‘ ubi jus ibi remedium’, where there is a right, there is a remedy. The law recognises these
imperfect rights because (a) it may be a good ground of defence though not a ground of action. (b)
an imperfect right is sufficient to support any security that has been given for it. A mortgage or
pledge remains perfectly valid, although the debt secured by it has ceased to be recoverable by
action. (c) an imperfect right can become perfect. For example an informal verbal contract may
become enforceable by action, by reason of the fact that written evidence of it has come into
existence.

1
Oxford dictionary,7th edition, 2007, oxford university press
2
https://www.civilserviceindia.com/subject/Political-Science/notes/rights-meaning-and-theories.html
3
http://shodhganga.inflibnet.ac.in/bitstream/10603/71969/3/03_chapter%201.pdf
4
Jurisprudence, central law publications, eighth edition 2010, pof. Nomita aggarwal
5
Jurisprudence and legal theory, s.p dwivedi. Central law publications, fourth edition
 2. Positive and negative rights: a positive right is a right which enables its holder to compel
another person on whom the duty is cast to abide by the terms which he has agreed to
abide i.e, to compel him to do a certain thing. An example of a positive right would be that
of a creditors right to receive money from his debtor.
3. A negative right on the other hand, corresponds to a negative duty. The person
against whom it is available has to forbear from dong some act, which, if done, would
prejudice the person in whom the right resides. The former is a right to be positively
benefited whereas the latter us a right not to be harmed.
4. Rights in rem and Rights in personam: the concept of the two terms rights in rem
and rights in personam has been derived from the Roman legal system. Under Roman law
there was a clear distinction between dominium, title that availed against the world and
obligation, which binds only the parties. a right in rem is a right that is available against the
entire world. Suitable examples for riht in rem would that of the right to a land or to a
house. Right of rem is in fact, a right against or in respect of a thing, namely, to recover
possession of the thing. It includes right to personal safety and freedome, right to possession
and ownership. Abduction of a child or wife from the custody of her parents or husband is a
violation of a right in rem.
A right against a definite of specified person is a right in personam, for example a
debt is a right in personam. It can be availed only against the debtor. Again a servant’s right
of wages is a right in personam, as it is available only against the master whom he has
served. Thus a right against definite individual is a right in personam while a right against an
indefinite number is a right in rem.
5. Propriety rights and personal rights: the aggregate of a man’s propriety rights constitutes his
estate, his assets and his property. They have some economic or monetary significance and
are elements if wealth. For instance money in one’s pocket or in a bank, right to debt etc.
Are propriety rights.6 Personal rights, on the other hand, are elements of one’s well-being.
They have no monetary value whatsoever . rughts such as right of reputation, personal
liberty, free from bodily freedom etc constitute personal rights.
6. Legal and equitable rights: the distinction of rights is found in England where exists two
parallel legal systems namely, common law and equity. The conflict of jurisdiction between
the two types of courts led to two classes of right distinguishable as legal and equitable.
Legal rights are those which are recognised by the courts of common law, equitable rights
are those recognised solely in the court of chancery.
The distinction however is unknown in india because in india law does not recognise
the distinction between legal and equitable interests and rights.
7. Vested and contingent rights: a vested right is one in respect of which all events essential to
vesr a right in thw owner have happened. A contingent right is one in respect of which only
some of the essential facts necessary to vest the right have happened and the vesting may
be complete only on the happening of non happening of certain special facts. A vested right
is a heritable one whereas a contingent rights is a non heritable one. 7
8. Rights in re (dash)propria and rights in re(dash) aliena: a right in re dash propria is a general
right which one has over his own property. The possessor can exercise this right without any

6
Studies in jurisprudence legal theory dr. n. v. paranjape central law agenc, fourth edition
7
http://www.publishyourarticles.net/knowledge-hub/law/what-are-the-differences-between-vested-rights-
and-contingent-rights/3985/
 inference by another. the right consists of four rights: (a) a right to use a thing, (b) right to
exclude others from using it, (c) right to dispose of it, (d) right to destroy the thing. Rights in
re dash aliena however is a right over which a person possesses with respect to property
owned by another. it frequently happens that the right of ownership vested in one person
becomes subject to an adverse right vested in another. it is a right which is detached from a
general right belonging to a person as an independent right, for example, the right of an
owner of a piece of lanf to use a way ovber the land of his neighbour. The right of the owner
over his land is a general right which may be limited by his neighbours right of way over his
land. Such rights in re dash aliena are called easements. 8

DUTY

A duty is a moral or legal obligation; a responsibility 9. Duty in the non legal sense may be definied as
a moral obligation to do something or omit from doing something. A legal duty is a legal obligation. A
man is said to have a duty in any matter when he is under a legal obligation to do so or not do
something. A person owes certain duties to others by reason of his status or position in society, for
example, a servant is under obligation to serve his master.

Duties can be classified into the following:

1. Legal and moral duties: a legal duty is an act opposite of which is a legal wrong. It is an acr
recognised as a duty by law and treated as such for the administration of justice. A moral or
natural duty on the other hand is an act opposite of which is a moral or natural wrong, a
duty may be moral but not legal or legal but not moral.
2. Positive or negative duties: when law obliges us to do an act, the duty is called ppositive, and
when the law obliges us to forbear from doing an act, the duty is negative.
3. Primary and secondary duties: primary duties are those whioch exist per se and
independently of any other duty. An example of primary duty is to forbear from causing
personal injury to another. a secondary duty is that which has no independent existence but
exists only for the enforcement of other duties. An example of secondary duties is the duty
to pay a man damages for the injury already done to the person.
4. Universal, general and particular duties: according to Jenks universal duties are those, which
are binding on all normal citizens of the community. Generak duties are those, which are
binding on specific classes of normal persons. Particular duties are those, which are binding
between the persons who have voluntarily undertaken them. 10
5. Absolute and relative duties: absolute duties are owed only to the state, the breach of which
is termed as crime and its remedy is punishment, relative duties on the other hand, are
owed to any person other than the one who is imposing them and breach of which is termed
as a civil wrong ad is remedied by restitution or compensation to the injured party 11. Austin
mentions four classes of absolute duties:
(a)

8
http://right-mu.blogspot.com/2009/12/classification-of-legal-right.html
9
Oxford dict
10
https://www.srdlawnotes.com/2017/09/meaning-definition-and-kinds-of-duties.html
11
www.infipark.com/articles/duty dash concept dash absolute dash duty
 CORRELATION BETWEEN RIGHTS AND DUTIES
The view on whether rights and duties are correlative has long been a topic of
debate. With certain scholar’s view differeing from others. Generally it has been said that
rights and duties are correlative. Every right has a corresponding duty or obligation. Without
rights there can be no duties or vice versa. Salmond salmond was of the view that there can
be no right without a corresponding duty, or duty without a corresponding right, any more
than there can be a husband without a wife or a father without child.(find solmonds book)
Likewise, every right is a right against some person or persons upon whom a
correlative duty is imposed. Every right or duty involves a cinculum uris or of a legal
obligation by which two or more persons are bound together. There can be no duty unless
there is someone to whom it is due, likewise there can be no right unless there is someone
from whom it is claimed12

According to Holland, every right implies the active or passive forbearance by others of the
wishes of the party having the right. The forbearance on the part of others is called a duty. A moral
duty is that which is demanded by the public opinion of society and a legal duty is that which is
enforced by the power of the state.

Rights and duties are two phases of the same thing. Rights are considered to be essential for
the expansion of human personality. They offer to the individual a sufficient scope for free action
and thus prepare ground for self-development. Although rights are of great significance in a
democratic stale yet they become meaningless in the absence of duties. Rights involve obligations as
well. An individual has rights so that he may make his contribution to the social good. One has no
right to act unsociably, man’s rights imply his claims on society and duties indicate the claim of
society on the individual. This means that an individual owes to the society certain duties as he
obtains rights.13

According to keeton, a duty is an act of forbearance which is enforced by the State in respect if a
right vested in another and the breach of which is wrong. Every right implies a correlative duty and
vice versa.

Austin however, holds the opposite view and makes a distinction between absolute and relative
duties. He was of the view that relative duties are those which have a corresponding right, however,
absolute duties are those which have none. This school concieveds it to be the essence if a right that
it should be vested in some determinate person and be enforceable by some legal process instituted
by him. Austin thus starts from the assumption that a right cannot vest in an indeterminate, or a
vague entity like the society or people. The second assumption with which Austin starts is that the
sovereign creates rights abd imposes them abd can change these at its will, consequently the
sovereign cannot be the holder of the right. It is on these two assumptions that he gives the
followuin four examppes of duty:

(a) Duties towards god or lower animal: these are duties not regarding persons. Austin says
rights cannot be vest3d in gods as they are not legal persons. Same is the case with animals.

12
V.D. Mahajan’s jurisprudence & legal theory, eastern book company,
13
https://www.legalcrystal.com/blog/constitutional-law/jurisprudence-relationship-between-rights-and-duties
(b) Duties owed to persons indefinitely: according to Austin, rights cannot be vested in an
indefinite entity like society. Rights are only vested in some determinate person or persons.
This type of duty is absolute.

(c) Duties towards self, i.e, self regarding duties: for Austin, self regarding duties are those
which are concerned with one’s own self and one cannot have any right from its ownself
hence it is absolute.

(d) Duties owed to the sovereign: according to Austin, a person or citizen can only have duties
towards the sovereign and no right because the sovereign is the creator of rights and such
can be changed at his own will, hence the sovereign cannot be the holder of right. Thereby
making such a duty absolute.