RIGHTS AND DUTIES

Introduction

The structure of law is built with a number of component concepts, which are sometimes
called the elements of law. The most important concepts are:

Legal Rights and Duties; Ownership; Possession; Property; Person; Titles; Liability;
Obligation; etc.

In this lecture we will study Legal Rights and Duties.

The idea of rights and duties is central to the functioning of any legal system. Normally
people recognise the need for law in order to protect their rights. Also when we think of
rights, the idea of duties is also implied because a right cannot exist unless the duty to respect
that right in others is also recognised.

RIGHTS

Now what is the meaning of ‘Right’.

We hear the word ‘Right’ in a variety of ways. We speak of fundamental rights, human
rights, legal rights and moral rights. We also speak of rights of specific groups such as rights
of children, rights of tribal people, rights of refugees, rights of women etc.

We also speak of Right to Something…. Like Right to Education; Right to Environment;

Right to Food; Right to Water; Right to Equality etc. The same right may mean different
things to different people.

In the field of law, right is an important fundamental concept. However, the concept of
right, like the many other concepts of law, does not have a single meaning and
definition. Different jurists have explained the concept of right in different ways. Thus
the Conceptualisation of Right is one of the most difficult issues, not only in
jurisprudence but also for the individual legal systems.

In the most general sense- right means a reasonable expectation which one entertains.

In the strict sense- it means an interest correlated with duties.

In the wider sense- it is identified with power; with privileges; and with immunity
A legal right is different from other moral rights or natural rights.

A natural right is defined and sanctioned by the law of nature.

A legal right is defined and sanctioned by the law of the State.

A moral right is recognised by the people in general or by the society or by some moral codes
which the particular society follows, but it is neither recognised by the law of the State nor
enforced by the power of the State.

A Legal Right is commonly defined as an interest recognised and protected by law.

Now, individuals can have several interests. For example, driving a car, reading a book,
property, music…etc. etc…..

It is obvious Law cannot recognise and protect all the interests. Therefore it is necessary to
select those interests which are worthy of legal protection. Now, on what basis such interests
are selected depends on the policies and priorities of the individual country and its legal
system. As the interests of individuals can be in conflict with each other, law appraises such
interests and selects only certain of them and protects them as per the goal of the legal
system.

Development of Concept of Right

Refer to earlier lectures- natural law theories, views of Greek Philosophers, Natural Rights,
and Social Contract Theory by John Locke

Refer to meaning and origin of Human Rights

Refer to American Declaration of Rights of Man

All these developments show that various expressions were used for the term ‘Right’.

But again , what exactly is the meaning of ‘Right’.

So we will see some definitions of the term ‘Right’

The Concept of Right- Definitions

Though right is a fundamental concept, there is no single definition and jurists are not
unanimous in their views.

The natural law jurists like Grotious define right as a moral quality by which a person is
competent to do or have a thing justly. Accordingly to him, it is the function of positive law
to give effect to this moral quality. This approach emphasises a moral right and not a legal
right because a positive law may or may not give effect to the moral right. Also sometimes
the positive law may be contrary to the moral right. The lawyers, normally do not concern
themselves with this aspect of right.

Every right has two elements and the definitions of rights given by different jurists are mostly
based on either of the two elements of rights.

Right has two elements:

1. The material element of interest like reputation, property, money, etc

2. The formal element like will, capacity, power to realise the interest etc.

Some group of writers define rights in terms of material interests. For example, Ihering
says, right is a legally protected interest. The end of law is protection of interest. The law
cannot possibly protect all interests; hence it selects some interests and protects them. It is
these protected interests which constitute right.

Salmond also defines right in terms of material element. He defines right as an interest
recognised and protected by law. The interest which law protects according to Salmond is a
human interest. That which has no effect on human interest has no consequence in law.

Some writers emphasize on the formal element. Their view is that interest is not right,
interest is merely the object of right. The will, capacity, power, faculty to realise the interest
is in fact the right. Austin and Gray take the view that right is a faculty or power residing in a
determinate party and parties. For example, The faculty of power enables the person to
contract the action of other person or persons. If A has a right to 100 rupees which the debtor
has borrowed from A, the right really is the faculty or power of A to get back the amount of
100 rupees.

Holland also defines right in terms of formal element. He says, right is a capacity residing in
a person to control the action of others.

A reconciliation between the two views of material interests and formal element is given by
Allen. According to him, right is neither a legally protected interest alone nor a legally
guaranteed power alone. The formal elements, like will, power, capacity, faculty do not
operate in vaccum, but devises certain ends. These ends are interests. Therefore a correct
definition of right according to Allen, must include both material interests and formal
elements. Allen defines right as, a legally guaranteed power to realise an interest.

In a case, Dane v. State, AIR 1968 Mad 355, the Court also realized the difficulty of
explaining the concept of right. The Madras High Court held that, the expression legal right is
a difficult concept. The legal right in its strict sense is one which is an ascertainable claim,
unforeseeable before courts and administrative agencies; in its wider sense a legal right has to
be understood as any advantage or benefit conferred upon a person by a rule of law.

All the above three views or theories are rejected by Duguit. He gives a completely different
view. He rejects the very notion of right. According to him the word right must be taken out
of the legal vocabulary. This is the totalitarian theory which is accepted in totalitarian state
in which the rights and interests of individuals are subordinated to that of the State.

( Thus the different meanings/ definitions of rights also reflect the various theories of right-
interest theory, will theory, reconciliation theory, and totalitarian theory. )

Characteristics of Legal Rights

A legal right has the following characteristics or essential elements:

1. The Owner of Right or the Subject of the right - There is some person who is the
owner of the legal right. That person is called the subject of the legal right. Holland
describes the owner of the right as person of inherence.
 The owner of right need not be certain or determinate. For example, the owner of
right can be an unborn person, the person entitled is uncertain. Where a right is owned
by the society at large, the owner is indeterminate and not one specific person.

2. The person of Incidence - A legal right operates against some persons, upon whom
lies the correlative duty. He may be distinguished as the person bound by duty or as
the subject of the duty or as the person of incidence. He is the person against whom
the right avails.

3. Matter of Content- The act or forbearance which the person in whom right resides
can exact, is called the content of the right. It is an act or omission, which is
obligatory on the person of incidence to the person of inherence.

4. The Object or Subject Matter of the Right- The act or omission relates to
something which may be termed as the object or subject matter of the right. The
object of right is the thing over which the right is exercised or the actionable claim in
respect of which there is the right.

5. Title- Every legal right has a title. Title denotes certain facts or events by virtue of
which the right has become vested in its owner.

A buys a piece of land from B.

A is the Subject of right or owner of the right.
The persons bound are the public at large, as it is a right available against the persons
generally.
The content of the right is non-interference with A’s exclusive use of the land.
Object or subject matter of the right is the land itself.
The title is the conveyance by which the land was acquired by A from B.

When we try to understand a right from a owner’s perspective, we find that every
right involves one of the three relationships,:
i. It is a right against some person or persons;
ii. It is a right to some act or omission of such person or persons; or
 iii. It is a right over something or to something to which the act or omission
relates.

A subject in whom the right inheres, and an object in respect of which it exists, are the
essential elements in right. It is impossible to think of a right without an owner.
However, the owner may be uncertain ( as in case of unborn) or may be indeterminate
( as in case of society at large in environmental rights)

The Concept of Duty

In the non-legal sense duty may be defined as the moral obligation to do something or
forbear from doing something.

In legal sense, a legal duty is a legal obligation. A person is said to have a duty in any
matter when he is under an legal obligation to do something or not to do something.

According to Jenks, there are three kinds of duties:

1. Universal duties- binding on all normal members of the community

2. General Duties- binding on classes of normal persons not voluntarily formed.
3. Particular duties- binding only on persons who have voluntarily undertaken those
duties

Thus, these are the general meanings of right and duties. With this, now we come to a very
common question i.e. Whether Rights and Duties are Co-relatives.

Whether Rights and Duties are Co-relatives

Generally it is said that rights and duties are co-relatives. Every right has a corresponding
duty or obligation. Without rights there can be no duties or vice-versa. If A has a right, then
everyone else has a duty to respect A’s right. If A has a duty then someone else has a right to
the thing A must do or not do in order to fulfil his duty. Thus, according to the conventional
jurists rights and duties are always co-relatives, co-existent, reciprocal and interdependent.
However, there are two views regarding the question, whether rights and duties are
correlatives.

According to one view- there can be no right without a corresponding duty; there can be no
duty without a corresponding right. Salmond supports this view. There can be no right
without a corresponding duty or duty without a corresponding right, just as there can be no
husband without a wife or a father without a child.

As per this view, every duty must be a duty towards some person or persons in whom
therefore a correlative right is vested. And similarly, every right must be a right against some
person or persons upon whom a correlative duty is imposed. Thus every right or duty
involves a vinculum juris or bond of legal obligation, by which two or more persons are
bound together. Therefore, there can be no duty unless there is someone to whom the duty is
due, and there can be no right unless there is someone from whom it is claimed.

According to the other view- given by John Austin- Austin distinguishes between relative
duties and absolute duties.

Relative duties means those duties which have corresponding rights.

Absolute duties means those which do not have any corresponding rights.

As per this view it is the essence of right that it should be vested in some determinate person
and be enforceable by some form of legal process instituted by him. Hence, according to
Austin, a right cannot vest in an indeterminate or a vague entity like the society or people in
general. Also according to Austin, the sovereign creates right and imposes and can change
these at its will- hence the sovereign cannot be the holder of the right. On this basis, Austin
gives four examples of Absolute Duties-

1. Duties towards God or lower animals- These duties are not regarding persons. These
are duties owed to God and duties owed to lower animals. These do not have any
corresponding rights. Austin says rights cannot be vested in Gods as they are not legal
persons. Also animals also do not have rights.
2. Duties owed to persons indefinitely in the community- Austin says, these type of
duties are absolute duties, because there cannot be right vested in an indeterminate
entity like society.
3. Duties towards self- these self regarding duties are concerned with one’s own self and
one cannot have any right form its own self. For these duties, there are no
corresponding rights. Hence these are absolute duties.
4. Duties owed to sovereign- According to Austin, a person or a citizen can have only
duties towards the sovereign and no right because the sovereign is the creator of the
rights and can change these at his own will. So these duties are also absolute.

This view of Austin is criticised. Duties towards God, is a matter of religion and not
of law. If a legal system protects certain religious duties with a sanction, then that
duty is a part of the law and is to be examined in the same manner as other legal
duties.
Regarding animals- earlier the view was animals do not have any rights. But now
animal rights are recognised. Law protects the animals and there are laws preventing
cruelty to animals. So it is wrong to say that duties owed to animals do not have
corresponding rights.
The critics say it is difficult to know what Austin meant by duties owed to persons
indefinitely. Paton says, the general duty towards the community can be understood as
a mass of duties towards each particular individual. We cannot conclude that duties
towards society are absolute to which there is no corresponding right.
Self-regarding duties are also duties towards the state. Hence a corresponding right
vests in the Society for the safety and security of the life of the citizen.
Austin’s fourth class of absolute duties i.e. duties owed to the sovereign are based on
his definition of law as a command of the sovereign. The critics say, even the
sovereign is also bound by duties and the citizens also have rights. For example,
tortuous liability of the State; Fundamental rights of the citizens available against the
State . Therefore critics say there is no concept of absolute duties.

HOHFELD’S ANALYSIS OF RIGHTS

The term right has been used in different ways. There are four different meanings of
the term ‘Right’.
1. Right in Strict sense
2. Liberties
3. Powers
4. Immunities
Though these four terms are often clubbed together under one general word i.e.
‘Right’ they are all distinct and have specific meanings. Also each of these kinds
of rights has its correlative. These relationships are designated as jural relations.
However, these meanings were not given at once, but it is the result of study and
research by jurists.
Dear students, it is interesting to know that the meanings and jural correlatives of
right were given by different jurists. It is like completing a jig-saw puzzle.
Bentham for the first time distinguished rights from liberties. Austin further
followed the work of Bentham. In 1862 Windscheid distinguished right and
power. In 1878 Thon and in 1883 Bierling distinguished between right, liberty and
power. In 1902 Salmond distinguished between right, liberty, power. In 1913,
an American Jurist, Hohfeld finally rearranged and added the fourth term
Immunity and completed the scheme.
Hohfeld work is significant because for the first time a jurist really
elaborated the distinction and finally completed the scheme of jural
correlatives.

So what is Hohfeldian analysis of right?? The table explains the jural

corelatives

Right Liberty/Privilege Power Immunity

Duty No Right Liability Disability

( if one can draw arrows- right-duty; liberty- no right; Power-liability; Immunity-

disability……. These are jural coroelatives)

(Same way if opposite arrow can be drawn one can see, Right-no right; liberty-
duty; power-disability; immunity-liability………. These are jural opposites)

Right- in the strict sense is a claim. It is an interest which is protected by law. If A

has a right, B has a duty. If A has a right against B that B shall not enter A’s land
then B is under a duty to keep away from A’s land. The correlative of right is
duty. The jural opposite of right is no-right.
Liberty /Privilege- liberty denotes benefits which derive from absence of legal
duty. For example A is the owner of a car. A may use the car, sell or gift the car
or simply keep the car. A is having liberty and no one else has right to stop A.
Thus A has ‘liberty’ and others have ‘No-right’. Liberty usually denotes things
we may do for ourselves, like sing, dance, read a book, watch a movie etc. No one
is having any duty to fulfil it. However, one’s liberty ends where other persons
right is there.
There is difference between liberty and privilege. Liberty covers those acts which
are lawful for all. Privilege means it is prima facie unlawful, but allowed in certain
circumstances. But for the existence of the privilege the act would be unlawful.
For example, driving licence is not a right. It is a privilege. But for the existence
of the driving licence, the act of driving vehicle would be unlawful.
The correlative of liberty/priveilege is no-right. The jural opposite of liberty is
duty.

Power- means the capacity to alter at will the legal relationship of oneself with
others. When power is exercised the other person comes under a liability. For
example if A enters into contract with B, then both A and B have a duty to fulfil
the contract and not to breach the contract. But if B breaches the contract, A may
take recourse to law. If A does not do anything , nothing happens, But if A
chooses to take recourse to law, A has exercised power. Then B comes under a
liability to pay for the damages due to breach of contract. The correlative of power
is liability. The jural opposite of power is disability.

Immunity- means freedom from the power of another. It means absence of

liability. The correlative of immunity is disability which means absence of power.
If A is having immunity, B is having disability i.e. not having any power over A.
For example, diplomats of sovereign states have immunity from being tried
before the courts of the state where they work. Thus the courts are under a
disability, ie. Having no power or jurisdiction over the diplomats. The correlative
of immunity is disability. The jural opposite of immunity is liability.
All these can be understood with further simple example. A is owner of house. A
has rights over the house. The other people have duty not to violate the rights. A
can use, decorate the house as he wants and no one can interfere. A is at liberty to
do whatever he wants. However A cannot disturb other neighbours by loud music
etc. so A is having duty to see that A’s liberties do not disturb rights of another.
( with liberty, the person having liberty is having duty. But when it is a right,
others have a duty.)
Suppose E neighbour comes to A and asks for flowers from his garden. A may
refuse. The neighbour cannot do anything in law. If A gives the flowers, it is a
privilege which is conferred on the neighbour E.
Suppose A starts a flour mill in his compound and the loud noise disturbs the
neighbour E. The right of E to live in peaceful environment is affected. If E
approaches the court then E has exercised power. When the court gives decision A
comes under a liability to obey the decision.
If A was not disturbing anyone and living peacefully, E cannot go to court asking
for removing A from the area. Then A is having immunity ( freedom from power
of another) and E is under disability( absence of power) .

Hohfeld’s Table of Jural Corelatives and Opposites

Form of Right Jural Corelative Jural Opposite

Right Duty No-Right
Libery/Privilege No-Right Duty
Power Liability Disability
Immunity Disability Liability

Hohfeld’s analysis of legal rights in terms of jural correlatives and jural opposites
has influenced and shaped the contemporary discussions on rights. At the same
time there are some criticisms or limitations of Hohfeld’s scheme.
Criticisms:
1. Some critics say that the terms which Hohfeld uses are misleading. For
example, it is better to use term liberty, then privilege. ( but then Hohfeld has
already given difference between liberty and privilege) .
2. Some critics say that the scheme can be applicable only to civil law. The
critics say that the scheme is inadequate to be applied to criminal law and
 public law, because in these cases duties exists, but no Hohfeldian correlative
can be found. ( however this criticism can be diluted because in criminal law
we do talk of rights of individuals, rights of society and the duties of the State
to protect the individuals).
3. Another criticism is that Hohfeld has not explained right in a general sense
and does not explain common features shared by right, libery, power and
immunity.
4. Still some critics say that Hohfeld gives only 8 types or terms. So the scheme
does not provide all the categories of right necessary to accommodate the kind
of relationships that actually exists in practice.

These criticisms do not however dilute the significance of Hohfeld’s analysis. The
fact that even after almost 100 years, the scheme is still used for explaining
analysis of legal rights, and continues to influence judges and jurists, indicates the
significance of the scheme.

Now next sub-topic

Classification of Legal Rights or Types of Legal Rights

The following classification of rights is mainly based on their nature and legal incidents. It
tries to give a better understanding of the operation of the concept of right in the legal
process.

i. Perfect and Imperfect Rights-

A right is considered perfect when it is enforceable through a court of law. There
is a corresponding duty for the breach of which a civil or criminal action can take
place.
There are certain rights which are not so enforceable. Though they are recognised
as rights, they are not so enforceable due to various reasons. They are called as
Imperfect rights. Examples are Claims barred by lapse of time; claims
unenforceable due to technical defects such as insufficient stamp or non-
registration.
ii. Positive and Negative Rights-
 In case of Positive right the person subject to duty is bound to do something.
Example, right to receive compensation for damages.
In case of Negative rights, the person subject to duty is restrained or refrained
from doing something. Example, right of ownership- others are refrained from
interfering in ones right of ownership. Others are refrained from trespassing in
land of owner.

iii. Real Rights- Right in rem and Personal Rights- Right in personam
A real right or right in rem is a right over a res or thing. It corresponds to a duty
imposed upon persons in general. It is a right available against the whole world.
The right in personam corresponds to a duty imposed upon determinate
individuals. It is a right available against particular individuals.
Example, my right to money in my purse is a right in rem; but my right to get
money from another person who owes it to me is a right in personam

iv. Proprietary Rights and Personal Rights

Proprietary rights are rights of a man to his estate, assets, and property. They are
having economic or monetary significance and can be quantifiable. Example land,
chattels etc. These rights are alienable and inheritable.
Personal Rights are rights of a man related to his well-being. Whatever rights a
person has as a free man, a citizen, a husband, wife, father, mother are all personal
rights. Right to personal liberty, reputation etc. These are not quantifiable in terms
of money. These rights are not alienable and are not inheritable.

v. Rights in re propria and rights in re aliena

Rights in re propria- means rights over one’s own property. The right of
dominium is the most absolute power which law gives over a thing. This is a real
right in a thing which is one’s own and is called right in re propria.
Rights in re aliena- means right over the property of someone else. Sometimes a
person may have some rights in property less than full ownership, because the
dominium is vested in another. Such rights are called as rights in re aliena or
encumbrances. Salmond refers to four types of encumbrances:
Lease- if a person gives his property on lease to another, the other person has
some rights over the property, but is not the full owner.
 Servitude- right to limited use of a piece of land without ownership or possession
over it. Example, right of way over another man’s property, or passage of light,
water across adjoining land, easement rights
Security- For purpose of securing recovery of a debt, property is kept as security.
The creditor has right to keep possession of the property till the debt is paid.
Trust- ownership of the propert is limited by an equitable obligation to deal with
the property for the benefit of someone else.

vi. Principal Rights and Accessory Rights-

Principal rights are independent of any other rights. Example owner of a piece of
a land- ownership is principal right
Accessory rights are ancillary to principal rights. Example tight of way over
adjoining land.

vii. Primary and Sanctioning Rights-

A primary right is the main right in rem or right in personam.
A sanctioning right is one which arises out of the violation of another right.
Example- A has a right not to be assaulted. It is a primary right in rem. If B
assaults A, then A has a sanctioning right in personam to damages.
Sanctioning rights are available only against specific persons and must therefore
be rights in personam.

viii. Legal and Equitable Rights-

Legal rights are those which ae recognised by common law courts.
Equitable rights are those rights which are recognised only in the Court of
Chancery. Principles of equity were evolved in the English Law to mitigate the
rigours of ordinary law.

ix. Vested and Contingent Rights-

When all the facts which must, by law, occur in order for the person in question to have the
right, have occurred, the right becomes vested. Example, A buys a house. All details are
completed. A has right in the house.
A right remains contingent when some, but not all the vestitive facts have occurred. If a
piece of land is gifted to A for life, and then to B if B survives A, then, - A gets a vested right
and B gets a contingent right. B’s right is contingent because some of the vestitive facts have
not yet taken place. It is possible that B may not survive A. But if B survives A, then B’s
contingent right becomes vested right now.

A contingent right is also called incomplete right.

The term right is closely connected with the concept of wrong and duty. So next sub-
topic

WRONG

According to Pollock, wrong is in morals the contrary of right. According to Salmond, wrong
is an act contrary to the rule of right and justice. There can be two types of wrongs:

Moral wrongs- an act which is morally wrong or naturally wrong. It is contrary to rules of
natural justice. It may or may not be legally wrong.

Legal wrong- an act which is legally wrong. It is contrary to rules and is a violation of the
law. It is a violation of legal right. It may or may not be a moral wrong.

DUTY

Duty means an obligatory act. It is an act the opposite of which could be wrong. Duties are
also of two kinds:

Moral Duty- duty is moral, it may not be legal.

Legal Duty- it is imposed by law. Legal duties may be only legal and not moral; they may
also be legal and moral both.

Classification of Legal Duties or Types of Legal Duties

Law recognises different kinds of legal duties.

Positive Duties- means those duties for which law obliges a person to do an act.

Negative Duties- means those duties for which law obliges a person to refrain from doing
something. Example one cannot trespass over land of another

Primary duty- means duties which exist per se and is independent of any other duty.
Example duty not to cause personal injury to another.

Secondary Duty- means duty which has no independent existence. It arises because of
primary duty. Example if damage is caused by A to property of B, then A has a duty to give
compensation.

Absolute Duty and Relative Duty- different opinions are there regarding Absolute Duty
and Relative Duty

According to Hibbert, absolute duties are owed only to the State. The breach of absolute duty
is a crime and remedy for it is punishment. The relative duties are owed to any person other
than the State. The breach of relative duty is a civil injury and is redressible by compensation
or restitution to the injured party.

According to Austin, absolute duties are those which do not have any corresponding rights
and relative duties are those which have corresponding rights.

However Salmond rejects the concept of absolute duty. According to Salmond, there can be
no duty without a right, and rights and duties are always correlated. Other jurists, Gray,
Paton, and Keeton also support Salmond’s view that there is always correlation between
rights and duties.