JURISPRUDEN

CE
ASSIGNMENT
THEORIES OF LEGAL
RIGHTS
SUBMITTED BY:
GOPIKA R.K.
II YEAR , B.A.,B.L.,(Hons)
B section

S.NO:

CONTENTS

PAGE NO

1.

INTRODUCTION

2.

KINDS OF LEGAL
2-3
RIGHTS
THEORIES OF LEGAL 3-6
RIGHTS

3.
4.

INTRODUCTION:
The coming together of men in an organized society entails a willingness to
achieve a common purpose of living well. This purpose finds its fulfillment in the
enjoyment of the conditions necessary for the development and realization of
human personality. In a society where the people at large have no opportunity for
the realization of personality, good living becomes impossible. Some minimum
opportunities are thus necessary for a good living. Rights are the sum total of those
opportunities which ensure enrichment of individual personality. In ordinary sense,
this term includes a lot many things, but generally it means the standard of
permitted action within a certain sphere. Legally it means the standard of
permitted action by law. The term permitted action of law refers to legal right.
This right is recognized and protected by a rule of legal justice. Violation of such a
right will be treated as a legal wrong. Moral or natural right refers to the interest
recognized and protected by a rule of natural justice and the violation of such a
right is a moral wrong. The difference between these two rights is the sanctions for
them. The violation of a persons legal right shall be questioned in the court of law,
while the violation of moral right is just a social rebuke. By the above stated
means, a right may be classified into the category of moral right and legal right. A
man may have a legal right to do some act which may be against morals. But it
does not mean that the legal rights are always opposed to morals. The ethical or
moral views of a community influence the law in determining the conduct it will
protect and all actions it will prohibit. But in most of the cases, moral rights and
legal rights coincide and they clash only in rare cases.
Legal rights can be further classified into civil and political rights.
Civil rights are those privileges in the absence of which a person cannot
enjoy a decent civic life. They are indispensible conditions of civilized
existence. The mental and spiritual development of man is possible through
the enjoyment of these privileges. In most states they are embodied in a
constitutional document, and almost every modern state has a elaborate

machinery for safeguarding the civil rights of its citizens against

encroachment by the individuals or the government.
Political rights are those privileges, recognized and guaranteed by the law of
the state, which ensure the participation of the citizens in the exercise of the
sovereign power of the state. These rights are not granted to those persons,
for instance minors, who have not the necessary mental equipment for the
rightful use of these privileges.
KINDS OF LEGAL RIGHTS:
I.

II.

III.

IV.

V.

PERFECT AND IMPERFECT RIGHTS:

A perfect right is the one which corresponding to a perfect duty; a perfect
duty is one which is not merely recognized by the law, but enforced by the
law. An imperfect right is recognized by the law for certain purposes, but is
incapable of legal enforcement.
POSITIVE AND NEGATIVE RIGHTS:
A positive right corresponds to a positive duty. Therefore the person having
the positive right is entitled to something to be done by the person who has
the corresponding positive duty. In the same way a person having the
negative right is entitled to something to be done by the person who has
corresponding negative duty.
RIGHTS IN REM AND RIGHTS IN PERSONAM:
A right in rem corresponds to a duty imposed upon persons in general
whereas a right in personam corresponds to a duty imposed upon
individuals.
PROPRIETARY AND PERSONAL RIGHTS:
Proprietary rights are those which have an economic significance. The sum
of a mans personal rights constitutes his status or personal condition as
opposed to his estate. In simple words, proprietary rights are valuable ,
worth money and are elements of mans wealth, while personal rights are
merely elements of a mans well being.
RIGHTS IN RE PROPRIA AND RIGHTS ALIENA:
According to salmond , a right in re aliena or encumbrance is one which
limits or derogates from some more general right belonging to some other
person in respect of the same subject-matter. Right in re propia means right
over ones own property and right in re aliena means rights over the
property of someone else.

VI.

PRINCIPAL AND ACCESORY RIGHTS:

A principal right is the main or primary right vested in a person under the
law . An accessory right in the secondary right which is connected to, or
arises out of, the principal right.

VII.

VIII.

IX.

X.

PRIMARY AND SANCTIONING RIGHTS:

A sanctioning right originates from some wrong ie, from the violation of
another right. These are also known as antecedent or substantive rights.
Primary rights have a source in something other than wrongs.
LEGAL AND EQUITABLE RIGHTS:
Legal rights are those which were recognized by the courts of common law.
Equitable rights are those which were recognized solely in the court of
chancery.
VESTED AND CONTINGENT RIGHTS:
According to Salmond, a right vests when all the facts have occurred which
must by law occur in order for the person in question to have the right. A
right is contingent when some but not all of the vestitive facts have occurred.
PUBLIC AND PRIVATE RIGHTS:
A right vested in the state is called public right and it is possessed by every
member of the public. A private right, on the other hand, is concerned only
with private individuals.

THEORIES OF LEGAL RIGHTS:

There are two main theories of legal rights:
The will theory
The interest theory
THE WILL THEORY:
There are two competing theories as to the nature of rights. The first one of them is
known as the will theory. It is also known as the choice theory. It views the purpose
of law as being to grant the widest possible means of self-expression to the
individual, the maximum degree of individual self-assertion. The theory identifies
the right bearer by virtue of the power that he has over the duty in question. The
purpose of law is to grant the individual the means of self expression or self

assertion. Therefore right emerges from the human will. The definitions of the 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
forbear from doing something in relation to him. Austinian conception of right is
based on the sovereign power of the state. Austin has also defined duty as an
obligation and the breach of such as obligation is a punishable offence according to
the penal sections sanctioned to it. According to Holland, legal right is nothing but
a permission to exercise certain natural powers to obtain protection , substitution or
redress by compensation. Vinogradoff considers that psychology of asserting claim
is the basis of legal right. Pollock and Vinogradoff have also defined right in terms
of will. Austin, Holland, Pollock and Vinogradoff define right in terms of will.
Locke believed in inalienable rights. According to him, in certain spheres of
individual life, the state could not interfere. The basis of right was the will of the
individual. Holems defines legal rights as nothing but a permission to exercise
certain natural powers and upon certain conditions to obtain protection, restitution,
or compensation by the aid of public force.
METAPHYSICAL JURISTS:
Hegal , kant, hume and others say that by right is meant the power of selfexpression or will. The will theory had its greatest supporters in Germany. The
German jurists of the historical school also supported the will theory. Puchta
defined legal right as a power over an object which by means of this right by
subjected to will of the person enjoying the right. Duguit suggests that will is not
essential element of a legal right or law. The real basis of law is social solidarity.
He calls theory of subjective right as a mere metaphysical abstraction

INTEREST THEORY:
Another popular theory regarding the nature of legal right is called the Interest
theory. This theory is more capacious than the will theory. It can accept as rights
both unwaivable rights and the rights of incompetents. Unwaivable rights are the
possession of which may be good for their holders and incompetent rights are of
the people who have interests that rights can protect. It was mainly propounded by
the German jurist Ihring. According to this theory, a legal right is a legally

protected interest. The theory also taps into the deeply plausible connection
between holding rights and being better off. This theory was mainly propounded
by the German jurist Ihring. According to this theory, a legal right is a legally
protected interest. Hiring does not emphasise on the element of will in a legal
right. He asserts that the basis of legal right is interest and not will. Law always
has a purpose. In case of rights, the purpose of law is to protect certain interests
and not the wills or the assertions of individuals. 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 will protect.
Salmond has criticized Ihrings theory on the ground that it is incomplete since it
completely overlooks the element of recognition by state. A legal right should not
only be protected by the state but should also be legally recognized by it. He
protected by law in as much cruelty to animals in a criminal offence. But beasts
cannot for that reason be said to possess a legal right of not being treated with
cruelty. Salmond treats the right to protection of animals from cruelty merely as a
moral right.
Professor Gray was greatly impressed by Slamonds view about legal right. He,
however, held that the interest theory was only partly true. He emphasised 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.
Dr.Allen has attempted to reconcile the two theories by pointing out that the
essence of a 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.
ARGUMENTS IN FAVOUR OF INTEREST THEORY:
The main argument given in support of the interest theory is that the interest and
the will is the basic element of right is that there are cases where a person may
have rights without having any will. Infants, lunatics and corporations have legal
rights but they do not have wills. In such cases, in the name of rights their interests

are protected. Though his argument is not very sound, because in all these cases a
will is operative, that is, of the guardian of the infant, or the lunatic, or of the
members of the corporation, it has some truth.
CONCLUSION:

An analysis on both the theories reveals that they are not so much opposed to each
other as they appear to be. Allen puts it very beautifully as the essence of right
seems to me to be not legally guaranteed power by itself, but legally guaranteed
power to realize an interest. In any balance analysis of the concept of a legal right,
Prof.Paton would want us to consider three distinct elements- the criterion of
enforceability by the legal process, the element of will and the element of interest.
It is only a synthesis of the two that can give a correct picture. One exaggerates the
one element and the second the other element. It is only a synthesis of the two that
can give a correct picture. The human will is always directed towards certain ends.
These ends are nothing but certain interests. Law protects certain wills persuing
certain interests as right. Therefore, right means the legal protection and
recognition of human will directed towards the satisfaction of certain interests.

BIBLIOGRAPHY

BOOKS REFFERED

Shorter oxford dictionary

Salmond, Jurisprudence , second edition, p218
Roscoe Pound, jurisprudence, vol 4, pp56-57.
Holland, elements of jurisprudence.
Paton, a text book of Jurisprudence, p.222
Laski: Duguits conception of the state in modern theories of law. p.52
Subbarao.G.C. : Jurisprudence and legal theory (9th ed.) p.167
Dr. Paranjape. N. v. : jurisprudence and legal theory (4th ed.) pp243-247
Dr. Mani tripathi B.N. : Jurisprudence (17th ed.) pp277-281
Dr. avtar singh & Dr. harpeet kaur : introduction to jurisprudence (3rd ed)
Dr. Myneni.S.R. : Jurisprudence (2nd ed.)

WEBSITES REFFERED
http://www.law.cam.ac.uk/faculty-resources/10004529.pdf
http://plato.stanford.edu/entries/rights/#7.1