JURAL CONCEPTS

RIGHTS
DUTIES
  Notion of Right
 Kinds of Right

Right  Features of a Right

 Civil & political Rights
 Economic, social and cultural rights
  RIGHT is anything which is owed or due.
 A right is a claim of an individual, recognized by the society,
and, guaranteed by the state.

Notion of  A right is one's affirmative claim against another.

RIGHT Eg. - X has a right to live, as related to Y. Every right must have a
correlative duty, therefore Y has a duty not to kill X
 Laski: defined rights as “ those conditions of social life without
which he cannot seek, in general, to be himself at his best and
every state is known by the right if maintains .”
  The rights are essential for development of human personality
and for human happiness. Rights are the necessary conditions
for the personal , social, economic, political, mental and moral
development of individuals.

Significance  Rights are the social requirement of a social man for the
development of his personality and society at large.
 Rights are the legal, social or ethical principles of freedom or
entitlement, that is, rights are the fundamental normative rule
about what is allowed of people or owed to people.
  A. right is a claim of the individual. But, only those claims can be
regarded as rights that are-
(i) based on rational considerations.
(ii) which are universally applicable.
(iii) which promote common good of the society.

Ingredients of a  B. Individual's claim which promotes the good of all, must be

Right recognized by the society.

 Eg. -  For example, an individual's claim that nobody should deprive
him of his possessions, when recognized by society, becomes the right
to property.

 C. only the socially recognized claims are translated by the state into
law. The State accords them legal recognition.
 A. Natural rights
 based on the Natural Law.
 "natural" in the sense not artificial, not man-made, as rights
deriving from human nature, or from the God. They are
universal. They are regarded as self-evident truths.
 They apply to all people, and do not derive from the laws of

Kinds any specific society. They exist necessarily in every individual,

and can't be taken away.
 The exponents of the social contract theory—Hobbes, Locke
and Rousseau held that natural rights existed in the state of
nature i.e. prior to the civil society.
 Eg. – right to life, right to one’s possessions, etc.
 B. Moral rights
 They are related to the individual sense of conviction. They
depend on the ethical standards of the community, for example,
a teacher has a moral claim to be treated with respect by his
students. However, moral rights cannot be enforced by the
state.
 They are sanctioned by the society and backed by public,
Kinds opinion. Violation of moral right does not entail legal
punishment.
 Moral rights are based on our morality., justice, or conscience
and they are not guaranteed by any legal authority.
 They differ from society to society.
 C. Human Rights
 based on human positive laws, either enacted by State or
Religion.
Kinds  Eg.- right to form associations, right to privacy, right to
religion, etc.
  Alienable rights are those which could be surrendered,
renounced or removed –such as the right to travel and the right
D. Alienable & to operate a business.

Inalienable
Rights  Inalienable rights are those which cannot be surrendered,
renounced or removed –such as the right to life, the right to
marry and the right to education.
  Juridical / Legal rights are those based on the law. These
rights are to be respected, permitted, and fulfilled as a matter of
justice.
 Legal rights may be defined as the claims recognized by the
E. Juridical and State. These rights are enforced by the state through its police
and courts.
Non-Juridical  Legal rights are based on a society's customs, laws, statutes or
Rights actions by legislatures.

 Non-Juridical rights are those based on virtue rather than strict

justice.
 A. Perfect and Imperfect Rights
 Perfect are those that correspond to a perfect duty; and a perfect
duty is one that is not only recognised by law, but enforced. A
duty is enforceable when an action shall lie for its breach and
the judgment will be executed through the physical force of the
State.

Kinds of Legal  Eg. Of imperfect legal rights- certain claims barred by lapse of
time, claims against foreign States, etc.
Rights  In these duties and their correlative rights are imperfect. No
action would lie for their maintenance yet they are legal rights
and legal duties as the law recognises them.
 Eg – Statute of Limitation does not state that a claim is
extinguished, but merely that no action shall thereafter be
brought for its recovery.
 B. Negative & Positive Rights
 Positive right corresponds to a positive duty, and is a right that
he on whom the duty lies shall do some positive act on behalf
of the person entitled.

Kinds of Legal  negative right corresponds to a negative duty, and is a right that

Rights the person bound shall refrain from some act which would
operate to the prejudice of the person entitled.
 Distinction between the two is based on practical importance. It
is much easier and necessary for the law to prevent the
infliction of harm rather than to enforce positive beneficence.
  C. Right in rem and Right in personum
 Right in rem corresponds to a duty imposed upon a persons in
general; this right is available against the world at large.
Kinds of Legal  Righ in personum corresponds to aduty imposed upon
Rights determinate individuals; this right is available only against
particular persons.
  Civil Rights – enjoyed by person as private individuals in
pursuit of their personal activities and in their transaction with
others.
 Rights without which no civilised life is possible.
 They are the most important of all legal rights.

E1. Civil rights   They are absolutely necessary for the development of man in
all his aspects. In most modern states, they are guaranteed by
the Constitution.
 Eg. – right to profess religion, right to property, right to
privacy, right to life, etc.
  Political rights – enjoyed by persons as citizens in their
participation in government affairs.
 These rights enable the people to have a share in the
E2. Political administration of the country.

Rights  Eg. – right to vote, right to hold government office, right to

stand in elections, etc.
  Economic, social and cultural rights are as important as
political and civil rights.
 Economic rights are the right to work, the right to adequate
wages and right to reasonable hours of work.
 These economic rights are very essential for the economic and
E3. Economic, political progress of man.

social and  For freedom from detention, torture and other forms of political

cultural rights repression will be meaningless when people are hostage to

hunger, disease, ignorance and unemployment.
 Eg. Of economic rights – right to pay
 Eg. Of social rights – right to education
 Eg. Of cultural rights- right to practice religion
 1) it describes a legal relationship between two legal persons,
2) Rights are recognized by society. There can be no rights outside
society.
3) Rights must serve the higher interests of society. They have a moral
basis.
4) Rights are not absolute. Restrictions can be placed on rights in the
interests and welfare of the society as a whole.

Characteristics 5) Rights of the individual must correspond to the contribution which

he makes to the society in his personal capacity.
6) State is the coercive force which ensures the exercise of rights.
7) Rights must be related to the needs of the people. The needs of
people change with time and circumstances. The content of rights
must also change accordingly.
8) The enjoyment of rights is conditional on the performance of
duties and obligations. Rights and duties go together.
  1. Coaction is the power to inherent in rights to prevent their
being violated and to exact redress for their unjust violation.

 2. Limitation is the natural limits or boundary beyond which a

right may not be insisted without violating the right of another.

Features
 3. Collision is the conflict of two rights so related that it is not
possible to exercise one without violating the other.
  In there is a conflict between two rights, the right which should
prevail is the one which-
Resolution of (1) belongs to the higher order, or

conflict (2) is concerned with a graver matter, or

(3) founded upon a stronger title or claim.
CONCEPT OF DUTY
  Duty is anything we are bound to do or omit.
 Duty is a moral obligation incumbent upon a person to do,
omit, or avoid something.

Meaning  Duty is which one ought or ought not to do. Its something the
opposite of which would be a wrong.
 When a right is invaded, a duty is violated
 a. Natural Duties – imposed by Natural Law.
Eg. – duty to take care, duty to raise and provide for your
children, etc.

Kinds of duties b. Positive Duties – imposed by human positive law.

Eg. – duty to follow traffic rules, duty to pay taxes, duty to vote,
etc.
  Affirmative duties are those that require the performance of an
act.
 Eg.- duty to care for one’s parents, duty to pay off debts, etc.
Affirmative /
negative Duties
 Negative duties are those which require the omission of an act.
 Eg. – duty not to kill anyone, duty not to use firearms, etc.
  Negative duties arising from negative natural law admit no
exemption
 Affirmative duties arising from affirmative precepts of natural
Exemption law admit exemptions when the act is rendered impossible
under certain conditions or would involve excessive hardship
from Duty on the person.
 Ordinary hardships which come along with the performance of
a duty do not exempt one from complying with such duty.
  Duties towards God must be given priority over those towards
men.
 Duties that secure public order or the common good have
priority over those that safeguard the individual.

Conflict of  Duties towards the family and relatives take precedence over
those towards strangers.
Duties  Duties of greater importance take precedence those of lesser
importance.
 Duties based on higher law take precedence over those coming
from lower laws.
Inter-relationship
  Right and Duty are correlative in a given person. One who has
a right to something has the duty to act consistent with that
right.

Correlation of  A prevailing error is insisting that other people respect our

rights, while we ourselves do very little about our duty to act
Right & Duty consistently with such right.
  In interpersonal relationship, rights and duties are reciprocal.
Reciprocity or The right of one person implies in another the duty to respect
Right and Duty that right.
 Right Privilege

Duty No right

Eight-fold Power Immunity

concept

Liability Disability
  Hohfeld argued that right and duty are correlative concepts, i.e.
the one must always be matched by the other.

EXAMPLE –

APPLICATIO  If A has a right against B, this means B has a duty to honor A's
right.
N OF THE  If B has no duty, that means that B has a privilege, i.e. B can do
THEORY whatever he or she pleases because B has no duty to refrain
from doing it, and A has no right to prohibit B from doing so.
 Each individual is located within a matrix of relationships with
other individuals.
  Take Persons X and Y.
 X has a right to live, as related to Y.
 Every right must have a correlative duty, therefore Y has a duty
not to kill X. Now assume that in a war, X and Y are enemy
soldiers.
 Even during war, the right and duty still exist: if Y captures X,
Illustration then Y cannot summarily execute X.
 If Y were to summarily execute X, then it would be a breach of
Y's duty not to kill X.
 A breach of a duty can be remedied by state violence, therefore
X's estate could sue Y for breach of the duty not to kill X.