CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR, PATNA - 800001

FINAL DRAFT SUBMITTED IN THE FULFILMENT OF THE COURSE

TITLED –

JURISPRUDENCE - II

On the Topic
THEORIES AND MODES OF ACQUISITION OF LEGAL
RIGHTS

SUBMITTED TO: - SUBMITTED BY: -

MR. MANORANJAN KUMAR NAME: RAHUL RAJ
FACULTY OF LAW SEMESTER: VI
ROLL NO.: 1845
COURSE: B.B.A., LL. B(HONS.)
SESSION: (2017-2022)
 ACKNOWLEDGEMENT

I would like to thank my faculty DR MANORANJAN KUMAR. whose guidance helped me

a lot with structuring my project. I owe the present accomplishment of my project to my friends,
who helped me immensely with materials throughout the project and without whom I couldn’t
have completed it in the present way. I would also like to extend my gratitude to my parents
and all those unseen hands that helped me out at every stage of my project.

THANK YOU

NAME: RAHUL RAJ

ROLL NO: 1845

SEMESTER: 6th (2017-22)

 DECLARATION

I hereby declare that the work reported in the B.B.A. LL.B. (Hons.) project report titled
“THEORIES AND MODES OF ACQUISITON OF LEGAL RIGHTS.” submitted at
Chanakya National Law University is an authentic record of my work carried out under the
supervision of Mr. MANORANJAN KUMAR, Faculty of law. I have not submitted this work
elsewhere for any other degree or diploma. I am fully responsible for the contents of my project
report.

SIGNATURE OF CANDIDATE

NAME OF CANDIDATE – RAHUL RAJ

ROLL NO: – 1845

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

OBJECTIVES OF STUDY:

Through this study the researcher wants to find out:

• Theories and modes of acquisition of legal rights.

• Types of rights that exists in the legal system

• That do all individuals have legal rights.

RESEARCH METHODOLOGY:

The researcher has adopted Doctrinal method of research to complete the project. Doctrinal
Methods refer to Library research or research done upon texts writings or Documents, legal
propositions and Doctrines, Articles, Books as well as Online Research and Journals relating
to the subject.

HYPOTHESIS:

The researcher believes that there exists no such legal right and there is no mode to acquire it.

SOURCES OF STUDY:

• Primary sources: Case Law, Constitution of India, Code of criminal procedure, etc.

• Secondary Sources: Newspapers, journals, periodicals, etc.

LIMITATIONS OF THE STUDY:

There are various hindrances which can be faced by the researcher during the formation of this
project such as scarcity of time, expensive legal materials for various research works, research
done by an individual.
 CONTENTS
1. INTRODUCTION
2. CLASSIFICATION OF LEGAL RIGHTS
3. THEORIES OF RIGHTS
4. MODES OF ACQUISITION OF RIGHTS
5. CONCLUSION
6. BIBLIOGRAPHY
 INTRODUCTION
Legal rights
Origin of Legal rights has been a subject of debate for many decades. We will analyse under
the light of various interpretations and definitions by prominent philosophers of legal
jurisprudence to understand what a legal right is, and where legal rights have originated from?
One of the very first questions that would come into any individuals mind if looking at legal
jurisprudence is that how would one define legal rights but before a legal right is defined,
question of what a right is in general should be answered.

A right may be defined as a man’s ability to make an impact on others to act in a particular
manner, not through his own powers but by the power or impact of majority opinion of the
society.

In jurisprudence and the modern theory, a mere right would not have any value unless it
becomes a legal right, in its strict sense a legal right may be defined as a man’s ability to control
the behaviour of others with the approval and assistance of the State.

According to Salmond, legal right is “an interest recognized and protected by a rule of legal
justice”, where every right has interests but all interests cannot be rights. It is quite obvious
that unless a right is recognized by the state it would not have any validity or weight to be
imposed upon others1. Various scholars defined ‘legal right’ as:

“A party has a right when another or others are bound or obliged by law to do or forbear
towards or in regard of him”- Austin, “The authority to compel”- Kant, “A physical power,
which through the commands of authority not only is morally strengthened, but also can protect
this its power against a transgressor by the application of compulsion or evil”-Kirchmann, “A
power over an object, which by means of this right is subjected to the will of the person enjoying
the right”-Puchta, “A legally protected interest”-Jhering

Supreme Court of India defined legal right in the case of State of Rajasthan v. Union of
India as: “In strict sense, legal rights are correlatives of legal duties and are defined as interests
whom the law protects by imposing corresponding duties on others. but in a generic sense, the
word ‘right’ is used to mean an immunity from the legal power of another, immunity is

1
SALMOND: Jurisprudence
exemption from the power of another in the same way as liberty is exemption from the right of
another, Immunity, in short, is no subjection.”

According to Salmond, every legal right has five essentials:

• The person who is the owner of the right or the person entitled.

• The person against whom the right is there or the person who is to perform the act on
the wish of the person who has a right.

• The content of the right.

• The act or omission of something also termed as the subject-matter of the right.

• Certain facts or events by reason of which the right has become vested in its owner

Along with legal rights there exist moral rights as well, which in general have subjective
support while legal rights have the objective support of the State. We can deduct from the
above-mentioned definitions that every right, whether moral or legal, implies the carrying out
of the wishes of the individual who holds the right, wherever such carrying out of the wish is
the “duty” owed to the individual. Where it is merely expected by the general public in the
society, it is their ‘moral duty’. A right and duty are said to be correlative to each other. Duty
is “the acts or forbearances which an organized society commands in order to protect legal
rights or the legal duties of the persons to whom those commands are directed”- Gray. In short,
a duty is an act which one ought to do, an act the opposite of which would be wrong.

Whether the origin of the legal right is nature/morality or the state who legislate them? Legal
positivist such as Hart when viewing the concept of ‘right’ and ‘duty’ together comes to a
conclusion about their applicability without necessarily indicating anything about the moral
approval of the people. Some theorists argue that law cannot be said to be spoken of as
imposing duties unless it has some moral claim.

Supreme Court of India in Minerva Mills Ltd. v. Union of India2 : “The law may provide
mechanism for enforcement of right but the existence of the right does not depend upon the
creation of such mechanism. The right exists prior to and independent of the mechanism of
enforcement.”

Historically when most of the world was under monarchy, theory of divine right was followed
where one divine Supreme Being was the source of the rights of individuals. Among other

2
(1980) 3 S.C.C. 625
philosophers John Locke considered rights as inalienable and naturally possessed by every man
by birth, in his opinion every man has three natural rights; right to life, right to liberty and right
to estate. According to Locke governments are formed by people’s choice in their joint capacity
where such governments are formed only to protect rights in a systematic manner.

According to Thomas Paine all individuals in practicing their personal rights formed a contract
with each other to form a government and the right of government to exist was the consequence
of such contract between individuals of society. Rights are based on the principles of justice.
In Thomas’s opinion statues made by the state doesn’t really give rights but in contrary deprives
citizens from certain rights because all citizens are born with rights, governments through
such statues control the behaviours of individuals by drawing perimeters around those rights
citizens possess by birth.

If we further analyse to see the criticism on natural law, we find Bentham to be among the most
well-known philosophers who called natural rights theory as “nonsense upon stilts”, his opinion
on the matter was that the rights are derived from law and the law itself is being created by the
State as their existence would necessarily require a government. He called legal rights as real
rights and called every such right to be directly dependent upon the very existence of the
government/state itself as if there was no State, no one will be there to implement rights
whether it be contractual rights, individual rights, public rights etc.

It is to a great extent agreed by philosophers that rights are derived from law and in order to
determine the origin of rights, one must find the origins of law. After collectively going through
some famous theories of natural and legal rights, this matter still seems debatable whether the
origin of law is “State” or “nature” but I believe legal right may be distinguished from a moral
or natural right due to the lack of enforceability mechanism unless recognized by the State. An
individual maybe punished under the state law for trespassing on a private property but as for
moral rights, deviating from them may only cause social sanctions. We have come to
understand that the legal rights are derived from law but whether law is derived from nature or
state is not conclusive. It all depends on your personal perspective on the subject as many
scholars have been in debate with opposing theories and strong arguments but one may not be
able to conclusively take sides on this debate. It still remains a subject open for discussion as
one thing tends to link to another in philosophy.
 CLASSIFICATION OF LEGAL RIGHTS

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 law3.

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 -

3
ROSCOE POUND: Legal Rights (1915) P.26
 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
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 act4.

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.

4
AUSTIN : Lectures on Jurisprudence, 1, P.370
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.

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.

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

of certain events which may or may not happen.

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.

Example - copyright of the book or trademark. Both Corporeal 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 originates from some wrong.

Example - from violation of another right. Thus, Sanctioning Right is supporting right to
primary right.

11) Public and Private Rights -

 Legal Rights can also be classified into Public Rights and Private Rights. Public Rights
are those Vested in by State.

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.
 THEORIES OF RIGHTS
There are numerous theories of rights which explain the nature, origin and meaning of rights.
The theory of natural rights describes rights as nature; the theory of legal rights recognizes 17
rights as legal; the historical theory of rights pronounces rights as products of traditions and
customs; the idealistic theory, like the theory of legal rights, relates rights only with the state;
the social welfare theory of rights regards rights as social to be exercised in the interest of both
the individual and the society. The development of rights as have come to us had a modest
beginning: civil rights with the contractualists; rights as the outcome of traditions, with the
historicists, rights as ordained by law, with the jurists; political rights, with the democrats;
social rights, with the sociologists and the pluralists; socio-economic rights, with the socialists
and the Marxists; human rights, with the advocates of the United Nations. This explanation
oversimplifies what our rights are and how they came to us.

Theory of Natural Rights

The theory of natural rights has been advocated mainly by Thomas Hobbes (Leviathan, 1651),
John Locke (Two Treatises on Government, 1690) and J.J. Rousseau (The Social Contract,
1762). These contractualists, after having provided the social contract theory, hold the view
that there were natural rights possessed by men in the state of nature and that these rights were
attributed to individuals as if they were the essential properties of men as men. The
contractualists, therefore, declared that the rights are inalienable, imprescriptible and
indefeasible.

The theory of natural rights is criticised on many grounds. Rights cannot be natural simply
because they were the possessions of men in the state of nature. There can never be rights
before the emergence of society: the notion of pre-society rights is a contradiction in terms. If
at all there was anything in the state of nature, they were mere physical energies, and not rights.
Rights presuppose the existence of some authority to protect them. In the state of nature where
no state existed, how can one imagine rights in the absence of a state: who would defend
people’s rights in the state of nature? The contractualists have no answer. To say that natural
rights existed in the state of nature is to make them absolute or beyond the control of society.
For Bentham, the doctrine of natural rights was ‘a rhetorical non-sense upon stilts.’ Laski also
rejects the whole idea of natural rights. Rights, as natural rights, are based on false assumptions
that we can have rights and duties independently of society. Burke had pointed out, rather
eloquently, when he said that we cannot enjoy the rights of civil and uncivil state at the same
time: the more perfect the natural rights are in the abstract, the more difficult it is to recognise
them in practice. Rights are natural, and not that there are natural rights, in the sense that they
are the conditions which human beings need to realise themselves. Laski realises the
significance of rights when he says that rights ‘are not natural in the sense that a permanent and
unchanging catalogue of them can be compiled, rather they are natural in the sense that under
the limitations of a civilised life, facts demand their recognition.’

Theory of Legal Rights

The theory of legal rights or the legal theory of rights connotes the same sense. The idealist
theory of rights which seeks to place rights as the product of the state can be, more or less, seen
as another name of the theory of legal rights. Among the advocates of such theories, the names
of Bentham, Hegel and Austin can be mentioned. According to them, rights are granted by the
state, regarding rights as a claim which the force of the state grants to the people. The essential
features of these theories, then, are: (i) the state defines and lays down the bill of rights: rights
are neither prior nor anterior to the state because it is the state which is the source of rights; (ii)
the state lays down a legal framework which guarantees rights and that it is the state which
enforces the enjoyment of rights; (iii) as the law creates and sustains rights, so when the content
of law changes, the substance of rights also changes. The theories which point out rights having
originated from the state are criticized in numerous ways. The state, indeed, defends and
protects our rights; it does not create them as the advocates of these theories make us believe.
If we admit that the rights are the creation of the state, we will have to accept the view that if
the state can give us rights, it can take them away as well. Obviously, such an opinion would
make the state absolute. In that case, we would have only those rights which the state would
like to give us.

Will Theory of Rights - Will as the Basis of Right

This theory says that the purpose of law is to grant the individual the means of self-expression
or self-assertion. Therefore, right emerges from the human will. In other words, the will-theory
of rights has been upheld by many on the ground that since the very objective of law is to grant
the widest possible means of self-assertion i.e. the maximum of individual self-assertion, rights,
therefore, on this notion are nothing but only inherent attributes of the human will. The mental
attitude of claim or of demand is the historical basis ofrights2. The will theory so extended by
the doctrine of natural rights, which declared that there are certain spheres of personal life with
which tire state could not legally interfere, is, indeed, grounded on a confusion of what is and
what ought to be5.

For there are certain rights which it is desirable that the law should protect, but that does not
prove that they are protected by the law, nor that any law that interferes with them is invalid.
But this does not mean to suggest and think of law as, crediting rights out of nothing. After all,
law exists to reconcile the competing and conflicting claims and desires of society, and some
parties of the will-theory only state that the law should protect the individual will as far as
possible. Since rights have been termed by many as inherent attributes of human will, they have
found adequate support from HOLMES, who defined a legal right as "nothing but a permission
to exercise certain natural powers and upon certain conditions to obtain protection, restitution,
or compensation by the aid of the public force. " But this is not quite true, for there are certain
rights or claims which do not consist of a liberty to do something but only of an ability to
compel others to do an act. The definitions of right given by AUSTIN and HOLLAND lay
down that the "will" is the main element of a right. According to AUSTIN, right of a person
means that others are obliged to do or forebear from doing something in relation to him.
AUSTINIAN conception of right is obviously based on sovereign power of the state. Likewise,
AUSTIN defines duty of an obligation the breach of which is punishable because of the penal
sanction attached with it. Justice HOLLAND of USA pointed out that a legal right is nothing
but a permission to exercise certain natural powers to obtain protection under certain
conditions. It has the support of public force for its protection, substitution or redress by
compensation6.

Interest Is the Theory of Right

Interest theory of rights is popular theory regarding the nature of legal right is called the
"interest theory7" which was mainly propounded by the German jurist IHERING. In his "spirit
of Roman law" IHERING defined rights as legally protected interest. IHRING does not
emphasize on the element of will in a legal right. He asserts that the basis of legal right is
"interest" and "not will". The main object of law is protection of human interests and to avert
conflict between their individual interest. These interests are not created by the state, but they
exist in the life of the community itself. The state only chooses out of them such interests, as it

5
VINOGRADOOF : The Foundation of a Theory of Rights, in Coilected Papers, II Page -367
6
DIAS & HUGHES : Jurisprudence, P.250
7
IHERING Geist des romichen Reghts, iii, P.332; see also Hallis, Corporate person P.169
will protect. This view of IHERING is supported by SALMOND also, but the latter adds
enforceability, to it as a necessary element.

In his "law as a means to an end" he pointed out, that a person can be said to have a right only
when there exists for him some advantage which is protected by the state. SALMOND has
criticized IHERING's theory on the ground that it is incomplete since it completely overlooks
the element of recognition by the state. A legal right should not only be protected by the state
but should also be legally recognized by it. He cites an example to substantiate this view. The
interests of beasts are to some extent protected by law in as much as cruelty to animals is a
criminal offence8. But beasts cannot for the reason be said to possess a legal right of not being
treated with cruelty.

SALMOND treats the rights to protection of animals from cruelty merely as a moral right. Prof.
GRAY was greatly impressed by SALMOND's view about legal right. He, however, held that
the interest theory was only partly true. He emphasized that a legal right is not an interest in
itself but it is only a means to extend protection to interests. He considers legal right as that
power by which a man makes other persons do or refrain from doing a certain act by imposing
a legal duty upon them through the agency of law "state". Thus, for example, if a man lends
some money to another, the right of the creditors to recover his money from the debtor is, in
reality, not his legal right but it is rather a power conferred on him by law by the exercise of
which he recover the debt. In other words, the creditor's interest to get back his money from
the debtor fs protected by law but this interest is not a legal right in itself, it is rather his object.
It is the power conferred on him by law to recover the money which is the legal right.

According to BUCKLAND, a legal right is "an interest or an expectation granted by law".

PATON defines a legal right in terms of recognition and protection by the legal order.
According to him, although enforceability by legal process is said to be a necessary condition
of a legal right, yet there are three qualifications to the above statement. Law does not always
enforce a right and the injured party is guaranteed merely damages. There are certain imperfect
rights which are recognized by law only partially. A time barred debt cannot be realized through
the agency of courts as it is an imperfect right, but if the creditor come to have the money in
some way, he can adjust the same towards the debt and need not return the same. Likewise, a
time-barred debt may be revived if the debtor acknowledges the same. In certain cases, the

8
DIAS & HUGHES: Jurisprudence, P.250
courts of justice do not have an adequate machinery to enforce their decisions. This is
particularly so in the case of international law. Dr.ALLEN has attempted to reconcile the two
theories by pointing out that the absence of legal right seems to be, not legally guaranteed
power by itself nor legally protected interest by itself, but the legally guaranteed power to
realize an interest. Thus, a sound theory would be to consider both the elements of "will" and
"interest" as essential ingredients of a legal right. The totalitarian view completely denies the
existence of legal rights. They argue that state being omnipotent, individual has no separate
existence from it. Therefore, in fact al right belongs to the state and the individuals do not have
any independent legal right as such. This view has, however, been rejected being far from
reality in the modem context of democratic welfare state.

The Historical Theory of Rights

The historical theory of rights, also called the prescriptive theory, regards the state as the
product of a long historical process. It holds the view that rights grow from traditions and
customs. The conservative Burke argued, while throwing his weight to the prescriptive theory,
that the people have a right over anything that they exercise or enjoy uninterruptedly over a
fairly long passage of time. So considered, every right is based on the force of long observance.
As traditions and customs stabilize owing to their constant and continuous usage, they take the
shape of rights. The theory has its origins in the 18th century in the writings of Edmund Burke
and was adopted later by the sociologists. The historical theory of rights is important in so far
as it condemns the legal theory of rights. It is also important in so far as it denies the theory of
natural rights. The state recognizes, the advocates of the historical theory of rights argue, what
(the rights including) comes to stay through long usage. The historical theory of rights suffers
from its own limitations. It cannot be admitted that all our customs result In rights: the Sati
system does not constitute a right nor does infanticide. All our rights do not have their origins
in customs. Right to social security, for example, is not related to any custom.

The Social Welfare Theory of Rights

The social welfare theory of rights presumes that rights are the conditions of social welfare.
The theory argues that the state should recognize only such rights as help promote social
welfare. Among the modern advocates of the social welfare theory, the name of Roscoe Pound
and Chafee can be mentioned though Bentham can be said to be its advocate of the 18th
century. The theory implies that rights are the creation of the society in as much as they are
based on the consideration of common welfare: rights are the conditions of social good which
means that claims not in conformity with the general welfare, and therefore, not recognized by
the community do not become our rights. The social welfare theory of rights is also not without
its faults. It dwells on the factor of social welfare, a term too vague to be precise. The
Benthamite formula ‘greatest good of the greatest number’ is different to different people. The
theory turns out to be the legal theory of rights if, in the end, the state is to decide what
constitutes ‘social welfare’. A critic like Wilde is of the view that ‘if rights are created by the
consideration of social expediency, the individual is without an appeal and helplessly
dependent upon its arbitrary will.

The Marxist Theory of Rights

The Marxist theory of rights is understood in terms of the economic system at a particular
period of history. A particular socio-economic formation would have a particular system of
rights. The state, being an instrument in the hands of the economically dominant class, is itself
a class institution and the law which it formulates is also a class law. So considered, the feudal
state, through feudal laws, protects the system of rights (privileges, for example) favoring the
feudal system. Likewise, the capitalist state, through the capitalistic laws, protects the system
of rights favoring the capitalist system. To secure rights for all in a class society, the Marxists
argue, is not the object of the class state; rather its aim is to protect and promote the interests
of the class wielding economic power.

According to Marx, the class which controls the economic structure of society also controls
political power and it uses this power to protect and promote its own interests rather than the
interests of all. In the socialist society which follows the capitalist society, as the Marxian
framework suggests, the socialist state, through the proletarian laws, would protect and
promote the interests/rights of the working class.

As the socialist society, unlike the capitalist society, is a classless society, its state and laws
protect the rights not of any particular class but of all the people living in the classless society.
The Marxists say that the socialist state, as an instrument of social and political and economic
change, would seek to establish socialism which will be based on the principle of ‘from each
to his ability to each according to his work’, the system of rights for all would follow this
pattern: economic rights (work, social security) first, followed by social rights (education) and
political rights (franchise rights). The Marxist theory of rights, like Marxism itself, suffers from
its deterministic ideology, though its emphasis on non-exploitative socialist system is its
characteristic feature. Neither the economic factor alone provides the basis of society nor the
superstructure is the reflection of only the economic base; for non-economic forces also play
their role in determining the superstructure.

FRAMEWORK OF RIGHTS
Rights are the essential conditions of human personality. The development of human
personality depends on the system of rights available to the individuals. Different state systems
recognize different rights: rights available to the Americans would be different from those
available to the Indians. A liberal-democratic society would give primacy to different rights
than a socialist society. That is why we have a classification of rights: moral and legal; legal
into civil, political, economic and social. Rights incorporated in the constitution of the land are
called fundamental rights. Rights, being basic conditions necessary for the development of
human personality, have to be made available to the individuals of all the states. The UN
Declaration of Human Rights serves as an inspiration and as agenda for the states to recognize
and maintain, for their respective people.

Rights of the People

A general framework of the major rights available to the people can be, briefly, summed up as
under: Right to life is a basic right without which all other rights are meaningless. This right
means that the state guarantees the protection of life, protection against any injury: even suicide
is considered a crime. Right to equality has numerous aspects: equality before law, equal
protection of law, prohibition of any sort of discrimination: social, economic or political.
Protective discrimination as enshrined in the Constitution of India, is an integral part of the
right to equality. Right to freedom, like right to equality, has several aspects: freedom of
speech, of press, of assembly, of association, of movement, of residence, of adopting a
vocation. That these freedoms are to be exercised within reasonable restrictions has been the
characteristic feature of this right granted to the Indians by the constitution. Right to freedom
of religion, conscience, faith is another right available to the individuals. Religion is a matter
of faith and the voice of one’s conscience and as such is given to the citizens in the present-
day states. This right does not curtail secularism in so far as religion is accepted as something
personal and religion and public life are not allowed to intermix.

Right to education is another important right without which the development of man’s
personality becomes impossible. An uneducated man cannot lead a meaningful life. Illiteracy,
being a social curse, should be reduced/removed. The state should take up the responsibility of
promoting education. Certain economic rights include the right to work, right to social security
and rest and leisure. With work and without material security, an individual is unable to enjoy
the fruits of other rights. Right to property, too, is an economic right which means the right to
possess and inherit property. It is regarded as an important right in liberal-democracies. There
are political rights of the individuals. It is these rights which make individuals full-fledged
citizens. Among these, the right to franchise, to contest elections, to hold public office, to form
political parties are some which need mention. The Constitution of India provides a list of
rights to its citizens. These are called the fundamental rights and these include: right to equality,
right to freedom, right against exploitation, right to freedom of religion, cultural and
educational rights and right to constitutional remedies – the last one is an important right in so
far as this right ensures guarantees for all the other rights. The liberal-democratic systems
ensure the primacy of political rights over social rights, and of social rights over the economic.
The order is reverse in socialist societies: economic rights, social rights and political rights. For
a liberal democrat, right to freedom is more important than the right to equality; right to
property is more important than the right to work; economic security is more important than
economic equality. Economic rights, in such societies are reduced to the right to protection of
property, to workable equality within the framework of private property system, not to be
exploited by the employer, to unemployment allowance. In socialistic societies, right to work
precedes the right to education; right to education precedes the right to hold independent
opinion.

Laski’s Theory of Rights

Harold Laski (1893-1950), a theoretician of the English Labour Party and a Political Scientist
in his own right, has his definite views on the system of rights as expounded in his A Grammar
of Politics (first published in 1925 and then revised almost every second year). Laski’s views
on the nature of rights run as follows: (i) they are social conditions, given to the individual as
a member of the society (ii) they help promote individual personality, his best-self: 21 ‘those
social conditions without which no man can seek to be his best self’ (iii) they are social because
they are never against social welfare; they were not there before the emergence of society (iv)
the state only recognizes and protects rights by maintaining them; (v) rights are never absolute:
absolute rights are a contradiction in terms (vi) they are dynamic in nature in so far as their
contents change according to place, time and conditions (vii) they go along with duties; in fact,
duties are prior to rights; the exercise of rights implies the exercise of duties. If Laski were to
give rights to the individual, he would give them in this order: right to work, right to be paid
adequate wages, right to reasonable hours of labour, right to education, right to choose one’s
governors, followed by other rights. Laski’s argument is that without granting economic rights
first, an individual cannot enjoy his political rights: political liberty is meaningless without
economic equality: ‘where there are great inequalities, the relationship between men is that of
the master and the slave’. Equally important, but lower in order is the right to education:
education alone helps an individual exercise these other rights properly. With the economic
and social (education rights) at one’s disposal, there is a greater likelihood of the individual
exercising his political rights in the right earnestness.
 MODES OF ACQUISITION OF RIGHTS
ORIGINAL ACQUISITION
FROM the view-point of individual right a thing becomes our own through acquisition, either
original or derivative.

Formerly, when the human race could assemble, primary acquisition could take place also
through division, as we have said; now it takes place through occupation only.

Original Mode: The original mode is the result of some independent personal act of the
acquirer himself. This mode of acquisition may be of three kinds:

Absolute: When a ownership is acquired over previously ownerless object i.e. who took it
first became the owner. For example, when one shoots a bird or deer in a jungle open to
public get gets the ownership.

Extinctive: Where there is extinction of previous ownership by an independent adverse act

on the part of the acquirer, e.g. prescription. This is how a right of easement is acquired after
a passage of time prescribed by law.

Accessory: When requisition of ownership is the result of accession. E.g. if tree bears fruits,
the produce belongs to the owner unless he has parted with the right to the same.

Someone may perchance say that a kind of primary right is acquired through the granting of a
servitude, or the giving of a pledge. To him who carefully weighs the matter, however, it will
become apparent that under such conditions there is no new right except in form; for in essence
the right was present in the proprietary right of the owner

‘ To the means through which acquisition may be accomplished Paul the jurist adds also this
which seems altogether consistent with nature ‘that we have caused something to come into
existence.’

In nature, however, nothing is produced except from matter which previously existed. If, then,
the material belonged to us, the ownership of that which is produced will continue, even though
a new form is presented. If the material belonged to no one, in that case acquisition will be
classed under the head of acquisition by occupation. On the other hand, if the material used
was the property of another, the thing produced naturally does not belong to us alone, as will
become apparent later.

1. It is, then, occupation which since those primitive times has been, and remains, the only
natural and primary mode of acquisition with which we are concerned.

Now in respect to that which, in a proper sense, belongs to no one, there are two possible types
of possession, sovereignty and ownership, in so far as ownership is distinguished from
sovereignty. The difference between the two types is thus brought out by Seneca: ‘To kings
belongs the power over all things; to individuals, proprietorship.’ Dio of Prusa makes the
distinction clear in this way ‘The territory belongs to the state, but none the less on that account
does each person in it have his own property.’

Sovereignty is customarily extended over two kinds of subject matter, The one, primary,
consists of persons; this alone is sometimes in itself sufficient, as in the case of an army of
men, women, and children seeking new places of habitation. The other, secondary, is extended
over the place, which is called territory.

2. Although sovereignty and ownership are generally acquired by a single act, they are
nevertheless distinct. Consequently, ownership passes not only to citizens but also to
foreigners, white the sovereignty remains in the hands of him who previously held it. Siculus,
in his work On the Condition of the Fields, says: ‘When the lands assigned to colonies proved
to be insufficient, those who were in charge of the allotment and division assigned to future
citizens lands which they had taken from neighbouring territories. The jurisdiction over the
lands which were assigned nevertheless remained under the control of those from whose
territory they were taken.’.’
We said above that in a place over which sovereignty has already been asserted the right to
acquire movable things through occupation can be prevented by the municipal law.

This right exists, in fact, by permission of the law of nature, not by a positive provision that
such permission should always be granted; for no such provision is demanded by the
requirements of human society.
If someone says that there seems to be a law of nations implying such permission, I shall answer
that, although in some parts of the world this is, or has been, the common usage, nevertheless
such usage does not have the force of an agreement between nations, but is the expression of a
law received by several countries individually, which can be abrogated by each of them. There
are also many other practices which jurists, when they are dealing with the division of property
and the acquisition of ownership, consider as belonging to the law of nations.

DERIVATIVE ACQUISITION:

When ownership is derived from a previous owner it is called derivative acquisition. This is
derivative mode takes place from the title of a prior owner. It is derived either by purchase
exchange, will, gift etc. Every legal system of the world provides some rules for
the requisition of ownership by this mode. Indian Transfer of Property Act provides rules for
the transfer of immovable property, Sale of Goods Act lays down rule for the transfer of
movable property, Partnership Act for the transfer of property of the firm and the Companies
Act for the transfer of Company property. Thus, the Derivative mode of acquisition
of ownership may be:

Title of Prior Owner:

Agreement is an important means for acquiring property. In agreement a title is acquired with
the consent of the previous owner. A wide connotation has been given to agreement as the
model of acquiring property.

Purchase:

A contract for sale does not confer title in immovable property. Section 54 of the Transfer of
Property Act provides that a contract for the sale of immovable property is a contract that a
sale of such property shall take place on terms settles between the parties; it does not of itself,
create any interest in or charge on such immovable property. However still, if a person has
entered into possession over immovable property under a contract for sale and is in peaceful
and settled possession of the property with the consent of the person in whom vests the title,
he is entitled to protect his possession against the whole world, excepting a person having a
title better than what he or his vendor possesses.
Will:

This is the one and only instrument, which allows a person to dispose his property while he is
alive and to take effect after his death.

Gift:

The Hindu Succession Act has not made any provisions for making a gift by a manager of a
joint family of his interest in the joint family property and as such Section 30 does not avail to
the appellant and clearly of the opinion that the gift by the first defendant are invalid even as
regards his interest in the joint family properties. There can be a valid gift of property in the
possession of a lessee or a mortgagee and a gift may be sufficiently made by delivering
constructive possession of the property to the donee. Some authorities still take the view that a
property in the possession of a usurper cannot be given away but this view appears to us to be
too right. The donor may lawfully make a gift of a property in the possession of a trespasser.
Such a gift is valid, the donee or des all that he can to put it within the power of the donee to
obtain possession

Transfer of Ownership:

The rights of a transferee from a co-owner are regulated by Section 44 of the Transfer of
Property Act which provides that whereas one or two or more co-owners of the immovable
property legally competent in that behalf transfers his share of such property or any interest
therein, the transferee acquires as to such share or interest and so far as is necessary to give
effect to the transfer, the transferor’s right to joint possession or other common or part
enjoyment of the property, and to enforce a partition of the same but subject to the conditions
and liabilities affecting at the date of the transfer, the share or interest so transferred. According
to this statutory provision also what transferee gets is the right of the transferor to joint
possession and to enforce a partition of the same irrespective of the fact whether the property
sold is fractional share of specified portion, exclusively in possession of the transferor.

Succession:

The natural way of acquiring title to property is by succession. By succession property devolves
on a person as a matter of course by operation of law, partition, custom or usage under intestate
succession and testamentary succession operates in a different way and is dealt with hereunder.

Exchange:
Section 118 of Transfer of Property Act defines exchange as “when two persons mutually
transfer the ownership of one thing for ownership of another, neither thing or both things being
money only, the transaction is called as exchange.

Sale:

Sale is the most convenient mode of transfer of immovable property and consequently purchase
is the ideal mode for acquiring title.

PROCESS:

Identification of relevant documents:

 CONCLUSION
The real credit of development of human civilization goes to law and its
prohibitive processes which apprised man of his rights and duties towards one another.
These rights and duties are regulated by the law prevalent in the society. It is well known
that the main purpose of law is to protect human interests by regulating the conduct of
individuals in the society. For the attainment of this object, it is necessary that state
should make use of its physical force for the enforcement of legal rights and punish those
who violate these rights.

It therefore, follows that in all civilized societies law consists of those rules which
regulate human conduct and it is the state which enforce the rights and duties created by
such rules. The conception of right accordingly is of fundamental significance in modern
legal theory because rights are indispensable for all civil societies and are recognized and
enforced by the state.

The language and practices of legal rights have, for a long time, had particular
resonance in this culture, and never more so than today.' Recently, that language and
those practices have been internationalized, and the idea of rights now enjoys nearly
universal appeal. Yet despite its current prominence, neither the meaning nor the
significance of legal rights is well understood.

So the aspect of legal right which is developing every other day should be looked into
with caution and should be dealt with utmost significance.
 BIBLIOGRAPHY

BOOKS

SALMOND: Jurisprudence (12th Ed.)

IVOR JENNINGS : The Law of the Constitution, (3rd Edn.).

VINOGRADOOF : The Foundation of a Theory of Rights, in Collected Papers

HOLMES : The Common Law

PATON G.W.: A Textbook of Jurisprudence, (2nd Ed.)