Acknowledgement.

I have taken efforts in the time-bound and plagiarism-free competition of this project.
However, it would not have been possible without the kind support and help of a number of
individuals that are part of the National Law Institute University, Bhopal.

I am greatly indebted to Ranjan Sir for his able guidance and constant supervision towards
this project as well as for imparting the knowledge required for the same. I would also like to
express my gratitude towards all staff members of the National Law Institute University,
Bhopal for their kind cooperation and for providing us all with the resources required to make
this project.

My gratitude and appreciation also goes out to my colleagues who helped me in developing
this paper and to people who have willingly helped me out with their abilities. Thank you.
1. Introduction.

The prohibitive process of law can be credited with the development of society over time; it
apprises people of what is right and what is wrong, what are their rights and duties as part of
a society. As has also been popularised by the social contract theory, when men and women
come together to form a unit in society, they both gain and give up certain rights. They have
certain rights and duties towards one another, which ensures a seamless functioning of the
unit. These rights are typically regulated by law and are therefore in the nature of legal rights
and duties, which stand in contrast to what are moral rights and duties.

As mentioned above, law, through its prohibitive process regulates the conduct of individuals
in the society. It is the state which enforces the legal rights and duties. What is a ‘right’ is
therefore of fundamental importance, as how does one enforce something which has not been
defined. Further, the term ‘right’ is closely linked to the terms ‘wrong’ and ‘duty’.

Before analyzing what these concepts entail, we first determine what are legal wrongs, legal
duties and legal rights.

Salmond defines ‘wrong’ as “an act contrary to the rule of right and justice”. A legal wrong is
an act which is in violation to the law in force at the time. Simply put, a legal wrong is a
violation of a legal right.

A ‘duty’ is an obligatory act or omission, the non-obedience of which is a legal wrong. The
commission of a wrong is the breach of duty and the performance of a duty is avoidance of
wrong.1

Salmond defines ‘right’ as “an interest recognized and protected by a rule or justice”. It is an
interest in respect of which there is duty and the disregard of which is wrong. A legal right is
any such interest protected under the law in force at the time, and the violation of which is a
legal wrong.

Austin states, “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.”. His observation has been criticized as it disregards
1
Fitzgerald P. J., Salmond on Jurisprudence (12th ed.), p. 217.
the element of interest involved in the conception of a right. Ihiring defines ‘right’ as a
“legally protected interest”. He considers law as a means to an end.

Duguit is opposed to the view that the basis of a legal right is human will. He argues that all
laws originate from social solidarity, hence there is no existence of a right as such. 2 Duguit
believes that human will is opposed to social good because it always leads to conflict of
interests between individuals. Therefore, there is no place for the concept of right in society.
Law, being an expression of social solidarity, demands that everyone should abide by his
duties and has no right to claim rights. Thus, Duguit rejects the concept of rights as immoral
and against the interest of the society.

1.1. Statement of Problem.

What are the concepts of legal rights and legal duties? What are some theories propounding
these concepts?

1.2. Objectives.

 To understand the concepts of legal rights and legal duties and further, legal wrongs.
 To analyze the theories propounding these concepts.
 To study Hohfeld’s ‘analysis of legal rights’ and explanations arising from the same.
 To determine the interrelationship between legal rights and duties and such other
concepts.

1.3. Hypothesis.

That there is an interrelationship between the concepts of legal rights, legal duties and legal
wrongs, and that this relationship can be better understood by critically analyzing the work of
jurists who have propounded theories on the subject.

1.4. Research Questions.

2
Paton, A Text Book of Jurisprudence, p. 222.
  What are the concepts of legal rights and legal duties? Further, what are legal wrongs?
 What are some theories propounding these concepts?
 What is Hohfeld’s ‘analysis of legal rights’ and what are some explanations arising
from the same?
 What is the interrelationship between legal rights and duties and such other concepts?

1.5. Research Methodology.

I have used the Conceptual Research Methodology, which entails studying an abstract idea or
a theory, and is used to develop a new theory or interpret an existing one. The mode of
writing this research paper is doctrinal in nature. Secondary and electronic resources have
been largely used to gather information and data about the topic. Books and other reference
material have been helpful in giving this paper a firm structure. Websites, dictionaries, and
articles have also been referred. Footnotes have been provided, where needed, to
acknowledge the source.

2. Theories of Legal Rights.

With respect to legal rights, there exist two significant theories that find relevance today – the
will theory and the interest theory.

2.1. Will Theory.

Herbert Hart is credited with developing the will theory of rights. The theory is based on the
importance of liberty, or human freedom, as a right critical to the existence of humans in a
society. Therefore, according to the will theory, freedom is the fundamental right, a concpt
around which this theory has been propounded. Freedom, here, is considered to be a natural
right, which is inherently available to each individual on account of their birth, and has not
been granted and therefore cannot be taken away by any other individual or the State. All
other rights stem from this basic right and are essentially specific protected freedoms.

The will theory is often referred to as the ‘choice theory’, as it grants the “choice-holders”
with a certain element of freedom to claim or to waive their individual rights.

For example, I as the owner of a certain parcel of land have the freedom to exercise my rights
over that land. Concurrently, that freedom also extends to me granting rights over that land to
another person.

The issue with will theory is the alienable nature of rights under this theory. It provides that
all rights are alienable and can be waived off, including the freedom to waive such right in
exchange for payment. This, for one, stands in contrast to the fundamental rights granted
under the Constitution of India, which cannot be waived off. Another issue is the capability
or understanding of right-holders to enforce their rights, as under this theory, enforcing or
waiving of rights is the prerogative of the right-holder.

2.2. Interest Theory.

Jeremy Bentham is credited with developing the interest theory of rights. He argued the
credibility of moral rights and disfavoured the same, in line with his stance as a utilitarian.
He, however, was not opposed to the concept of legal rights. According to the interest theory,
a right accrues to you if another person has a duty to grant you that right and create such an
interest.

“X has a right if and only if X can have rights, and other things being equal, an aspect of X’s
well-being (his interest) is a sufficient reason for holding some other person(s) to be under a
duty.”

For example, you have the right to vote because the State has the duty to implement universal
adult franchise.

The issue with interest theory is that it limits rights based on legitimate interests, and defining
a set of interests that warrant a right is not practicable. Welfare rights, rights granted to
certain specific communities to protect their interests are some examples.
3. Hohfeld’s Analysis of Rights.

Rights today stand in contradiction to each other. For example, one person may staunchly
believe in the right to life while another may claim the right for a woman to get an abortion.
Similarly, the legal rights granted to the courts to pronounce the death penalty in certain cases
also stands in stark contrast to the former. The contradiction of rights here differs in degree,
and the goal here is to balance conflicting claims of rights and determining which ones take
priority over the other.

3.1. Legal Rights.

Legal rights are the rights which are granted to individuals by virtue of them being subject to
a law in force at the time. These rights emanate either from the rules established by
legislative bodies or the decisions of authorities established under the law. In light of the
interest theory, a legal right may be defined as an interest protected by law.

3.1.1. Elements of a Right.

These five essential elements of a legal right have been laid down by Salmond.

(a) Person of inherence.

The person of inherence is the subject of the right or the person to whom the right has
been granted. In light of the will theory, which provides that a right can be enforced
only upon been claimed, determining the person of inherence is of significant
importance. The person who is the subject of the right is the one who can claim such
right. Even though we need to determine the subject of the right, the subject need not
be determinate. A right can be granted to a section of society, and can then be claimed
by any member of that section.

(b) Person of incidence.

This in a way is the person granting the right or the person against whom the right
exists. This person has the duty to enforce the right.
 (c) Contents of the right.

Also called the substance of the right, the contents lay down what actually has the
person been granted under a right.

(d) Subject matter of the right.

Subject matter of the right is that thing over which the right may be exercised. It is
also called the object of the right. For example, property.

In certain instances, there may exist rights without an object to act upon. For example,
in case of a relationship of agency. The principal is the person of inherence. The agent
is the person of incidence. A fiduciary duty or the contents of the agency agreement
form the contents of the right. But there is no subject matter of the right in this case 3.
According to Salmond though, the object or the subject matter here is the skill of the
agent.4

(e) Title of the right.

The title of the right is the event which lead to the right being vested in the person of
inherence. It is the event which triggers the right.

Let us consider an illustration. X buys a parcel of land from Y. X is the person of inherence
of the right. This right is a right in rem and is available against society at large. The contents
of the right consists, among other things, of non-interference with X’s exclusive use of the
purchased land. The subject matter of the right is the conveyance deed by which it was
transferred to X.

3.2. Types of Rights.

3
Holland, Elements of Jurisprudence, p. 88.
4
Fitzgerald P.J., Salmond on Jurisprudence, (12th ed.), p. 223.
Hohfeld classified rights into four categories. His aim was to determine juridical relationships
between the parties involved. He developed a scheme whereby he classified rights into four
different categories of jural relationships. These legal positions are interrelated by way of
logical relations. His work was centred around analyzing and defining these four different
categories of rights, and did not detract into a substantive research into what a right should be
or what it should entail. He did not delve into the morality behind specific rights or duties or
what should be the prerequisites to be classified as a right.

Let us understand the four different types of rights as propounded by Hohfeld through
illustrations.

(a) Claims.

X has a claim to “something” against Y if and only if Y has a duty towards X with
regard to “something”.

For example, in a relationship between an employer and an employee, the employee

has a claim to wages only because the employer is dutybound to pay the wages.

(b) Privileges (or liberties).

X has a privilege to “something” if and only if X has no duty not to “something”.

For example, you have a privilege of access to a public space if there exists no duty
upon you not to access such space. Similarly, a licence is also grants a privilege to its
holder.

Privileges and claims fall under what Hart called “primary rules”. The next set of rights fall
under what Hart called “secondary rules”: rules that lay down how primary rules can be
altered.

(c) Powers.
 X has a power if and only if X has the ability to alter their own or another’s claims or
privileges with regard to “something”.

For example, I have a privilege to use a public library. The librarian has the authority
to regulate such use and to waive my privilege. Therefore, the librarian exercises a
power in this scenario.

(d) Immunities.

X has an immunity if and only if Y lacks the ability to alter X’s claims or privileges
with regard to “something”.

The State lacks the authority to impose upon its citizens a trade or profession.
Therefore, the citizens have an immunity with regard to the same.

Interrelationships between the four abovementioned rights.

 The existence of a claim equates to the absence of a privilege.

Where X lends a certain amount to Y, X has a claim against Y to the tune of that
amount. Y, in this case, does not have a privilege not to honour X’s claim to the said
amount.

 The exercise of power equates to the absence of an immunity.

The principal has a power over the agent with respect to the access of the principal’s
resources. Access to these resources can be granted and taken away by the principal.
The agent does not have an immunity against the principal taking away these
resources.

3.3. Relations between Rights: Opposites and Corelatives.

Hohfeld arranged the four categories in tables of “opposites” and “correlatives”, so as to
display the logical structure of his system. To this extent, Hohfeld expanded the terminology
he had previously employed.

Opposites.

If A has a Claim, then A lacks a No-claim.

If A has a Privilege, then A lacks a Duty.
If A has a Power, then A lacks a Disability.
If A has an Immunity, then A lacks a Liability.

Corelatives.

If A has a Claim, then B has a Duty.

If A has a Privilege, then B has a No-claim.
If A has a Power, then B has a Liability.
If A has an Immunity, then B has a Disability.

Let us now look at each of these terms individually.

(a) Claim.

“An enforceable claim to performance (action or forbearance) by another, it is the

legal relations of A to B when society commands action forbearance by B and will at
the instance of A in some manner penalize disobedience.”

(b) Duty.

“It is a legal relation of a person, B, who is commanded by the society to act or to

forbear for the benefit of another person, A, either immediately or in the future, and
who will be penalized by the society for disobedience.”

(c) Privilege.
 “The legal relation of A to B when A(with respect to B) is free or at liberty to conduct
himself in a certain manner for the benefit of B by the command of society; and when
he is not threatened by with any penalty for disobedience, for the reason that society
has made no command.”

(d) No-claim.

“The legal relation of a person, A, in whose behalf society commands nothing of

another, B.”

(e) Power.

“The legal relations of A to B when A’s own voluntary act will cause new legal
relations either between B and A or between B and the third person.”

(f) Liability.

“The relation of A to B when A may be brought into new legal relations by the
voluntary act of B.”

(g) Immunity.

“The relation A to B when B has no legal power… to affect someone or more of the
existing legal relations of A, as to that particular existing relation A has an immunity
with respect to B.”

(h) Disability.

“The relation of A to B when by no voluntary act of his own can A extinguish one (or
more) of the existing legal relations of B.”

These terms become the lowest common denominators when applied to any and all legal
problems. All of the abovementioned terms fall under the one umbrella of “rights” .Not all
rights are the same. A right to self-defence is not the same as the right to not be attacked by
other person. This is because we use the umbrella phrase i.e. “right”. While in the first
instance, the right is a privilege, in the second, the right is an immunity. In such scenarios, we
inadvertently use the term “right”, which is effectively denoting different terms and concepts.
There can be innumerable instances and illustrations to highlight this use of the umbrella term
“right”.
4. Relations between Rights and Duties.

Rights and duties are critical to any legal process. The legislation of rules, their
implementation, and the administration of justice are all centred around preserving rights and
enforcing duties. The two terms and concepts go hand-in-hand and one cannot exist without
the other. A right can be enforced only against someone who has a corelated duty. The
converse may not always be true, as can be seen in the case of “absolute duties”.

Hohfeld was not concerned with the relationship between rights and duties.5 He believed that
the term “rights” is incorrectly used for denoting something that, in a certain case, might be a
privilege, a power, or immunity, and not a right in the strictest sense. 6 According to him, a
solution for the limitation of the word “right” to its precise and most appropriate meaning is
to be found in the correlative (and equivalent) “duty”.7

For example, in terms of property rights, if A has a right to the exclusive use of land, B
conversely has a duty not to interfere with such use.

A legal right is enforceable against another. Being granted a legal rights grants one with the
legal protection against any person unwilling to honour such right.

5
N. E. H. Hull, Vital Schools of Jurisprudence: Roscoe Pound, Wesley Newcomb Hohfeld, and the Promotion of an
Academic Jurisprudential Agenda, 1910-1919, 45 Journal of Legal Education 235, 257 (1995).
6
Id at 36.
7
Id at 38.
5. Conclusion.

Hohfeld can be credited with determining the terminology and offering a comprehensive and
clear set of terms for the various set of concepts that fall under the umbrella term “rights”.
These sets of terms find relevance and extensive use under any legal process. From a practicl
perspective, these rules are of significant importance not just to the field of law, but to any
other discipline dealing with the rights and liberties of individuals.

As mentioned above, these eight terms – claim, duty, privilege, no-claim, power, liability,
immunity, and disability – provide us with the lowest common denominator against which to
state any and all legal issues. They also aid in drawing similarities and coming up with
analogies among certain entities that may otherwise seem remote.

Finally, it is important to grasp that Hohfeld’s endeavour is analytical and definitional

rather than empirical or substantive.8 Hohfeld put forth a scheme of jural relations in
which legal positions are connected with each other by purely logical relations of
entailment and negation.9

8
Joseph William Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982
Wisconsin Law Review 975, 1049 (1982).
9
Id.