Legal Rights – Definition, Theories,

Characteristics And Kinds

Table of Contents
1) Introduction
2) What are Legal Rights
3) Theories of Legal Rights
4) Characteristics of Legal Rights
5) Kinds of Legal Rights
6) Conclusion

Introduction
Every individual possesses certain rights and duties that are
important for man’s development. Every individual has some rights
and duties that are mutually respected. A person must respect the
rights of other individuals. Such rights are regulated by the law. The
real credit of the development of human civilization goes to law and
its prohibitive process which apprised man of his rights and duties
as a unit of the society. For the acquisition of the purpose, the law
provides sanctions to prevent the violation of such rights. Rights are
the concept of fundamental components and have great
significance; they are recognized and enforced by the state.

What are Legal Rights

The Latin term for right is rectus which means ‘correct’. Rights are
the essential conditions for social life that lead to overall
development. According to Julious Stone, a ‘right’ connotes-

1. A claim justifiable in words;

 2. An attitude of human beings by some supposed ideal and
natural right of life, equality, property which is by the
natural law.
3. The existence of right presupposes the existence of a
remedy for its breach.
In simpler words, it means essential claims recognized by the
civilized society and are enforced by the state. There are various
forms of rights like natural rights, moral rights, legal rights etc.

Legal rights exist under the rules of the legal system. Ordinarily,
they are recognized and protected by the state. Many jurists have
defined and analyzed the concept of legal rights.

According to T.E. Holland defines legal rights means “a capacity

residing on one man of controlling with the assent and assistance of
the state the actions of others. He emphasizes the element of
enforcement of legal rights“.

According to John Austin observed that “a party has a right when

another or other is bound or obliged by law to do or to forbear
towards or regarding them’. John Salmond defines it as ‘an interest
recognized and protected by a rule or justice”.

According to Henry Maine observed that “an individual is said to

have a legal right if he by his force or persuasion, can carry out his
wishes, other by his acts, or by influencing the acts of others, he
has the ‘right’ to carry out his wishes. It is on this analogy that
‘right’ is called a ‘legally protected interest“.

According to Dean Roscoe Pound observes that legal rights

connotes;

1. An interest which is secured and protected by law;

2. A recognized claim to act forbearances by another or by
all to make the interest effective;
3. The capacity of creating or altering rights;
 4. The privileges and liberties and
5. As an adjective, it is meant to give effect to recognize
and give effect to moral rights.
The High Court of Madras in Daniel v State[1] explained the main
contributes of the legal right as follows

1. In the strict sense of the term, a legal right is an

ascertainable claim which is enforceable by courts and
justice administration agencies.
2. In its wider sense, it has to be understood as any
advantages or benefits conferred upon a person by rule of
law.
3. Legal rights need to be recognized by law; some rights
are recognized by the international court under the law of
nations.
4. Truly speaking, a legal right is a capacity of asserting a
recognized interest rather than a claim that could be
asserted in a court of law.
Theories of Legal Rights
There are three main theories regarding the nature of legal rights,
they are;

1. The Will Theory of Legal Rights

This theory is supported by Hegel, Kant, Hume and others.

According to this theory, a right is an inherent attribute of the
human will. Right is the will of an individual. Man expresses his will
over an object through rights. This theory extended the natural
rights that declared that the state could not legally interfere with
certain spheres of personal life.

It is the function of law to confer certain powers or allow certain

freedom to individuals in the form of legal rights. According
to Holland, a legal right is ‘the capacity residing in one man to
control with the assent and assistance of the state, the actions of
others.
Duguit does not agree with this theory and criticizes it by
suggesting that will is not an essential element of a legal right or
law. The real basis of law is social solidarity. He also calls the theory
of subjective rights a mere metaphysical abstraction.

2. The Interest Theory of Legal Rights

This theory is propounded by the German Jurists Ihering. According

to this theory, “a legal right is a legally protected interest”.
According to him the basis of the legal rights is the interest and not
the will of the person. The main objective of the law is to protect the
individual interest and the conflicts between them.

Salmond criticized this theory on the ground that it completely

overlooked the element of recognition by the state. A legal right
should not only be protected by the state but also be recognized by
it.

Dr. Allen has attempted to blend and reconcile both these theories
by pointing out that the essence of a legal right seems to be, not
legally guaranteed power by itself, but the legally guaranteed power
to realize an interest. Thus a sound theory would consider both will
and interest as an essential ingredient of the legal right.

3. The protection theory of legal rights

The totalitarian view completely denies the existence of any legal

rights. As per this view, there are no separate rights and an
individual has no separate existence of its own. Rights are granted
by the states they belong to and individuals do not have any
independent legal rights as such. Not much importance should be
given to the individual as the state is the only real thing. This theory
has been rejected as it is far from the reality of the modern society
of democratic welfare states where rights are very important.
Characteristics of Legal Rights
According to Salmond legal rights have the following essential
elements;

1. Owner of the Right: Also called as the subject of the right or

the person of inherence. There must be a person who is the owner
of the right. A legal right is always vested in a person. There cannot
be any legal right without the subject or owner.

However, the rights don’t need to be certain or determinate. For

instance, a right can be owned by society at large; here the subject
of the right is undetermined. Similarly an unborn possess a legal
right however it is not certain whether he would be born alive or
not.

2. The person of incidence: Also known as the subject of the

duty. A legal right avails against the person, who is under a
corresponding duty to respect that right. He is bound by the duty
and he is to act or forbear for the benefit of the right.

For example, where A has a particular right against B, A is the

person of inherence and B is the subject of the incident.

3. Content of the Right: There are certain positive and negative

acts necessary for the fulfillment of the right. It may be an act or
omission which is requisite from the person bound in favour of the
person entitled. It is also called the substance of the right.

4. The subject of the right: It is the object over which the right is
exercised. It is something to which an act or forbearance relates.
Right accrues over things like money, goodwill, land, property etc.
This may be called the object or the subject matter of the right.
5. Title of the right: Title is the name given to the legal right that
shows the owner of the right. Every legal right has some title. Facts
must show how the right is vested in the owner of the right.

Salmond gives an illustration to explain these essential elements of

legal rights. If A buys a piece of land from B, A is the subject or
owner of the right so required. The person bound by the correlative
duty is a person in general, for the right of this kind avails against
the world at large. The content of the right consists of non-
interference with the purchaser’s exclusive use of the land. The
object or the subject matter of the right is the conveyance by which
it was acquired from the former owners. Every right involves a
three-fold relation when viewed from the point of view of the
owner:

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
iii. It is a right over or to something which that act or
omission relates to.
Kinds of Legal Rights
There are various kinds of rights classified by different jurists.
Rights may be generally classified under the following heads;

1. Perfect and Imperfect right

A perfect right is enforceable by the court of law. According

to Salmond, a perfect right corresponds to a perfect duty. An
imperfect right, on the other hand, is recognized by the state but is
not enforceable by the law. It is incapable of legal enforcement;
they are not perfect. For example, claims barred by lapse of time,
claims unenforceable on account of some technical defect in the
matter of proof such as want of stamp in non-registration, claims
against foreign states or sovereigns, debts due to an executor from
the estate which he administers. In all these cases the rights are
imperfect.
Imperfect rights are good for defence, though not good as a ground
for action. An imperfect right may be converted into a perfect right.
When a bond is unstamped, it creates an imperfect right which is
unenforceable by the law. But on payment of the prescribed
penalty, it becomes a perfect right. Similarly, a verbal contract may
become enforceable because of the existence of some written
evidence.

2. Positive and Negative Right

According to the nature of the co-relative duty, rights are classified

into positive and negative rights. As the name suggests, in positive
rights a person is bound to perform or do something as he is bound
by the duty. The satisfaction of positive rights results in the
betterment of the position of the owner whereas in the negative
right people are restrained from doing something, they have
negative duties corresponding to them and enjoyment is complete
without interference taking place.

In positive rights, satisfaction results in the betterment of the

position of the owner, whereas in the negative right the position of
the owner is merely maintained as it is. Rights to receive damages
or recovering money from the debtor are examples of positive
rights. A right to reputation is a negative right as it imposes a
negative duty upon others not to interfere with it. A positive right
aims at some positive benefit but a negative right aims at not to be
harmed. Positive rights have a mediate relation to the object
whereas the negative right has an immediate relation to the object.

3. Antecedent and Remedial Rights

The rights that deal with the substantive law may be divided into
antecedent and remedial rights. Antecedent rights exist irrespective
of any wrong being committed. For example, the purchase of any
good has an antecedent right over that good. Whereas a right that
accrues when antecedent rights are violated is known as remedial
rights. It involves relief in the form of compensation for the violation
of an antecedent right.

4. Right in rem or in personam

Real right (right in rem) corresponds to a duty imposed upon

persons in general whereas a personal right (right in personam)
corresponds to a duty imposed on a determinate individual. A real
right is available against the whole world whereas a personal right is
available against a particular individual only.

Real rights are more important than personal rights as they are
available to the whole world. A person’s right for peaceable
occupation and reputation are right in rem whereas the right to
receive rent from the tenant and right under the contract is right in
personam. Right in personam is usually positive and real rights are
negative rights.

The difference between the two can be understood by the following

illustration: the right of a person after signing a contract for a
purchase of a property is a right in personam against the seller and
the seller should execute a sale deed and transfer the property in
favour of another person. After the execution of the sale deed, the
right of the person who purchased the land becomes right in rem as
available against the whole world that nobody shall interfere with
his ownership in that land.

5. Proprietary and personal rights

The proprietary rights include a person’s estate and his property in

different forms. It possesses certain monetary value and is an
element of wealth. For example right to debt, land, houses, right to
goodwill etc. On the other hand, personal rights are elements of
well-being that do not have any monetary value. For example right
to reputation, personal liberty, right against bodily harm etc.
Proprietary Rights are alienable whereas personal rights are not
alienable. There exists a factor of inheritance in proprietary rights
that do not exist in the latter. Proprietary rights are more static as
compare to personal rights.

6. Rights in re propria and rights in re aliena

Right in propria means right over one’s property and right re aliena
means right over the other’s property, it is also called an
encumbrance when used in its widest sense.

As per Salmond ‘a right in re aliena limits or derogates from some

more general right belonging to some other person in respect of the
same subject – matter. All other rights that are not limited are
rights in re propria. The owner of the chattel has the right in
proprietary as it’s his property. The pledge is right in aliena as it is
right over the property of someone else.

Salmond refers to the four kinds of encumbrances namely lease,

servitude, security and trust.

a. A lease is an encumbrance of property vested in one person to

the possession and use vested in another person

b. A servitude refers to the right of limited use of pieces of land.

Land must be unaccompanied whether by the ownership or by
possession of it.

c. A security is an encumbrance vested in a creditor over property

of his debtor for securing the recovery of the debt for example right
to retain possession of a thing till the payment of the debt.

d. A trust is an encumbrance where there is limited ownership over

the property by an equitable obligation to deal with it for the benefit
of someone else.
7. Principle and Accessory rights

Principle rights are independent. Accessory rights are appurtenant

to other rights and they have a beneficial effect on the principle
rights. For example, if an owner of land has a right of way on the
adjoining land, the ownership of the land is his principle right and
right to way on the adjoining land is the accessory right.

8. Legal and Equitable rights

In England, before the passing of the Judicature Act, 1973, two

distinct coordinates were called common law and equity law. Legal
rights were recognized by the common law courts and equitable
rights were recognized by the court of chancery that was the court
of equity. After the passing of the Judicature Act, this was abolished
by the fusion of the two. When two legal rights are found
inconsistent, the first in time generally prevails. Where there is a
conflict between the legal right and an equitable right, the legal
right will take precedence over the other, but the owner of the legal
rights must have acquired it for value without notice of the prior
equity.

The Indian Law, however, does not recognize the distinction

between equity and the law as there are neither separate laws nor
separate courts regarding them in India. Where there is no specific
law, the case is decided based on the principle of justice, equity and
good conscience, which implies the application of English Law; so
far it applies to India’s circumstances.

9. Vested and Contingent Rights

A vested right creates an imminent interest. It is a right in respect

of which all the events that are necessary to vest completely in the
owner have happened. In the case of contingent right, only some of
the events necessary to vest the right in the contingent owner have
happened.
Paton observes that when all the investigative facts which are
necessary to create the right have occurred, the right is vested.
When part of the investigative facts occurred, the right is contingent
until the happening of all the facts on which the title depends.

10. Public and Private rights

A public person generally means the state or the sovereign part of

it, a body or individual holding authority under it. The term private
person denotes an individual or individuals, who are a unit of the
state but in no sense represents it even for a special purpose.
Hence it can be said that rights vested in the state are called public
rights. A private right is concerned with private individuals only.

The difference can be further elaborated by illustration, an assault is

a breach of the private right of the person assaulted but avoiding
military service when mandatory is an injury to the state and is a
violation of the public right. A public right is enforced by the state
as the state is the interest bearer of the public.

11. Servient and Dominant rights

A servant right is subject to the encumbrances while when such

encumbrance derogates from it; it is called a dominant right. For
example, if A as the owner of the house has a right to way over B’s
land, A’s house is the dominant heritage and A will be a dominant
owner similarly B’s house is the servient heritage and B is the
servient owner.

12. Jus ad rem

A right that originates from another right is called jus ad rem. If A

contracts to sell his land to B, then B acquires a right against A to
have the land transferred from A. Here right of B is called as right
ad rem. It is always a right in personam in nature.
Conclusion
Rights form the very basic part of any state. In the modern sense of
world rights, people have a significant position. Rights and duties
should be analyzed in the context of the law under which they are
created and protected. The legal rights vary and have different
dimensions depending on the variety of juristic personalities like an
individual, infant, artificial personalities like corporations, lunatics
etc. Legal rights play a very important role in the development of
individuals and overall have a great impact on the working of
society.

REFERENCES

1. D. Mahajan, Jurisprudence and legal theory, fifth edition (

reprinted 2019), EBC publishing Ltd. Lucknow
2. S. Atchuthen Pillai, Jurisprudence and Legal Theory, third
edition (reprinted 2019)
3. Dr N.M. Paranjape, studies in jurisprudence and legal
theory, eight edition.
[1] AIR 1968 Mad. 355