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Jurisprudence
ACKNOWLEDGEMENT
Table of Contents
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Introduction
Meaning of Right
Definition of Right
Difference between Legal and Moral right
Components of a Legal Right
Elements of Legal Right
Kinds of Legal Rights
References
Conclusion
INTRODUCTION
After Renaissance and Reformation in Europe during the hey days of the classical natural law
period and in the post-second World War era there has been a movement at the national and
international level for respect to the individual freedom and his dignity against the arbitrary acts
of political society or state itself. In fact the freedoms or liberties which individuals enjoy in the
state are considered the hallmark of its great political maturity and a symbol of its truly
democratic character. For man like Robinson Crusoe wants to live in the company of others like
himself. Man is thus prompt to form groups, society or state for the adequate development of his
personality. Aristotle observed man is a social animal and Plato declared man by nature of
political animal and in the sixteenth and eighteenth centuries Hobbes, Locke and Rousseau
propounded the theory of social contract to stress the sanctity of individuals rights and
individual freedoms within a given political framework. In the nineteenth century Kant, Mills,
Spencer and Drawin laid over emphasizes on the rights of the individual and is resulted in social
conflicts and upheavals. While an attempt is being made to reduce the tyranny of the duties in
many countries of Europe and Asia. However, the Universal Declaration on Human Rights
comes as an antidote to the theory which relies too much on the duties of the individuals. Thus it
becomes clear that the value of the right arise and exist only in a politically organized society by
which law regulates and guarantees certain rights to the individuals within the social order
established by law for without law and society rights are non-existent and meaningless. It would
be useful, therefore, to define the concept of right both in moral and legal sense. But before
that, we need to understand what we mean by right.
Meaning of Right
Right, in the ordinary sense of the term, means a number of things, generally taken to
mean the standard of permitted action within a certain sphere.1 It also means which is
straight and not crooked in opposition to wrong which is twisted from the straight. In ethics
the right means that which is in conformity with morality and so is morally good. The word
right is equivalent to the Latin rectus from which we derive such words as rectify,
rectitude and correct. Right is also used as equivalent of the Latin term jus from which we
derive such words as just, justify, etc. In this sense right means that in which a just: a just
law, a just deed. In other words right indicates existence of some capacity power or freedom
in an individual to hold, act and exact something in society with its power and permission by
which others are refrained from acting contrary of to the detriment of such individual. Rights
may be defined as a moral powers over what is ones own. The foundation2 of such rights is
dependent on the general principles and values which inhere in a particular society.
Definition of Right
1. Austin
Prof. Grey points out that the right id not an interest in itself, it is the means by which
the enjoyment of interest is secured5. If it is my interest to receive a hundred rupees from
X and if by the law X is bound to pay me, I have a legally protected interest and I have a
right. The legal right, however, is not the payment of money. It consists in my power to
get money from X. Gray, therefore, defines a legal right as that power which a man has
to make a person or persons do or refrain from doing certain act or acts, so far as the
power arises from society imposing a legal duty upon a person or persons.
Holland also lays emphasis upon the power referred to by
Gray. He defines a legal right as a capacity residing in one man of controlling with the
assent and assistance of the State the actions of others6.
3. Salmond
Salmond defines right from a different angle. He says, A right is a interest recognized
and protected by rule of right. It is an interest, respect for which is a duty, and disregard
of which is a wrong.7 The main element in this definition are two: First, a rule of right
means rule of law, or, in other words, that which is judiciary enforceable. Thus, according
to Salmond, a right must be judiciary enforceable.
Second, a right is an interest. The element of interest is
essential to constitute a right. So far as Salmonds first element is concerned, it is a
4 Lectures on Jurisprudence, Or, The Philosophy of Positive Law by John Austin
(1875), p. 193
5 Nature and Source of the Law by John Chipman Gray published by The Colombia
University Press, 1909, p.18.
6 Element of Jurisprudence by Thomas Erskine Holland, twelfth edition published by
Oxford University Press, 1916, p. 79.
7 Jurisprudence by John W. Salmond, fourth edition published by Stevens and
Haynes, 1913, p.278.
In the Sprit of Roman Law Jhering defines rights as legally protected interests8. The
protection of human interests is a chief purpose of social organization. The law, however,
does not protect all such interests. The interests of men conflict with one another and law,
being the rule of justice, appraises such interests and selects only some for protection.
Jhering regards as legal rights such of those interests as have obtained legal protection. In
Law as a means to an end Jhering points out that one can be said to have a right only
when there exists for one some advantage which is protected by the State. That which
exists for one may be ones self and the protection of it by State give rise to the right of
personality. It may be a thing bearing a certain relation to ones purposes, the protection
of interest which give rise to the right of ownership. In every case the existence of the
legal right is dependent upon the circumstances that some human interest has secured the
protection of the State.
8 Nature and Sources of Law by John Chipman Gray, London: Forgotten Books,
(Original work published 1921), p. 18-19.
The Supreme Court of India has in State of Rajasthan v. Union of India9, observed: In a
strict sense rights are correlative of legal duties and are defined as interests which 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
exemption from the power of another. Immunity, in short, is no-subjection.
rights and legal rights coincide and they clash only in rare cases. Many jurists
(Positivists) are opposed to the idea of natural rights and they do not regard it as more
than a fiction or a metaphor.
In India, the Madras High Court devoted some time in analyzing the
concept of legal right in Danial v. State.12 In this case an American national Danial H.
Walcott had obtained a British passport under false name and entered India without a
valid passport contravening the rules. The Court convicted Danial Walcott for having
impersonated another person fraudulently to gain entry in India. While coming to the
conclusion that passport creates a valuable legal right and is a valuable security the Court
made some relevant observation on the concept of legal right. It observed
The expression legal right used in the definition of valuable security is
not defined and is difficult concept. From the statement of eminent jurists about
the concept of legal right the following principles can be deduced broadly to
understand what a legal right is (1) Legal right in a strict sense is one which is an
ascertainable claim, enforceable before Courts and administrative agencies; (2) In
its wider sense a legal right has to be understood as any advantage or benefit
conferred upon a person by rule of law; (3) There are legal rights, recognized by
law; (4) There are rights recognized by International Court granted by
International Law; but not enforceable and (5) A legal right is a capacity of
asserting a secured interest rather than a claim that could be asserted in the courts.
Subject
A person whom the right resides, the person of inherence, or the person
right as the subject of the right itself. In the Illustration given by the Holland the
object of the right is the skill, knowledge, strength, time and so forth of the person
bound by the duty16.
o Act
It is the contentment of the right, the act or forbearance which the person in
whom the right resides can exact. It can be understood as some positive or negative
act necessary for the fulfillment of the right. In case of the employer the act of paying
the wages to the workmen. The employer is to do an act which is related to the res17.
o
Title
According to Salmond, every legal right has a title, that is to say, certain facts or
events by reason of which the right has become vested in the owner.18 The purpose of
providing a title is to establish a connection between the subject and the matter of the
right. For example, a man has a right to own property in general, but this is an
abstract right not specifying any particular piece of property. Something is necessary
to give this particular man rather than someone else the right of this particular piece
of property, to change the abstract into a concrete right. The contract of sale does this
and this fact of his title.
Let us consider some examples where we can understand all the above mentioned
elements of a legal right.
Suppose a testator leaves a gold right to a legatee. The legatee becomes
the subject or the owner of the right; the gold ring is the object of the right; the
delivery of the ring is the content of the right; the executor is the person of
incidence and the will bequeathing the ring is the title of the right.
or
Suppose A buys a piece of land form B, A is the subject or owner of the
right so acquired. The persons bound by the correlative right are persons in
general, for a right of this kind avails against all the world. The content of
the right consists in non-interference with the purchasers exclusive use of
land. The object or subject-matter of the right is the land. And finally the
title of the right is the conveyance by which it was acquired from its
former owner19.
It is usually said that the term Person, Thing and Act are inseparably connected with
term Right. Every right involves a threefold relation in which the owner of it stands. It is, first,
a right against some person. Secondly, it is a right to some act or forbearance of such person.
Thirdly, it is, a right over or to some thing to which that act or forbearance relates. Thus, these
three terms are inseparably connected with the term Right20.
19 B.N Mani Tripathi: Jurisprudence The Legal Theory by Jain Book, p. 288.
20 Prof. G.C Venkata Subbarao: Jurisprudence & Legal Theory republished by
Eastern Book Company, 2008, p. 167.
The source of all legal rights is the law rights is the law. The law creates,
recognizes and protects the right so newly created. It becomes legal because it is
guaranteed and protected by the state and its legal system. A legal right which cannot be
enforced must atleast be recognized by the law. Justice Mathew in Keshvananda
Bharati21 rightly observes right are per-se enforceable in courts unless recognized by the
positive law of a State. Legal rights therefore are those provided by the State and secured
through the instrumentalities. If it is neither recognized nor enforced by law it would
tantamount to sermon on the mount or merely a rule of ethics or morality depending for
its enforcements on the caprice of an individual. The sine quo non of a legal right is,
therefore, its vindication through law against any possible encroachment. However, there
are some exception to the rule that a legal right must be enforceable.
1. The law will not always enforce a right but may grant may grant the injured
party only a remedy. Under the Hindu Marriage Act, 1955 for instance, in
Section 9 there is a provision for the restitution of the conjugal rights where
either spouse is deprived of the conjugal company of the other. For
withdrawal or breaking of conjugal right the law grants a remedy to either
party to seek for a decree of judicial separation or decree of nullity or decree
of divorce for Hindus.
2. Sometime law creates a disability in so far as enforcements of legal right is
concerned because of the existence of rule of law that after the lapse of certain
period existing eights cannot be enforced in court of law. E.g. the statute bar
debts which cannot be enforced.
3. Sometime the legal system lacks the machinery for enforcement of certain
types of rights arising out of e.g., rights the decree or judgment of
rights. He declared that in certain spheres of individuals life, the state could not
interfere. According to him, the basis of right was the will of the individual. Holmes
in his definition of right put the same view more clearly. He defines 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 public
force. Society and State is to further and promote the expansion and development of
the human freedom. State is not the agent of all the purposes of man and each
individual is free to pursue his own goals and ends. According to this theory, there is a
perpetual conflict between the freedom of one individual and the other, the individual
and the State as a part of natural process- between the rights of the man and the rights
of the State. However in this conflict State cannot deny certain basic natural rights of
a man which are inherited in him because of his self-dignity and individuality called
in other words human will. It is the human will which makes a person self-owned,
self-possessed and self-controlled and, therefore, the master and a best judge of his
own acts in such a way that he cannot be subordinated to the interest of another to be
used and controlled by another. In this connection Kent also expressed the autonomy
of human will when he said,24 Being whose existence does not depend on our will
but on nature, if they are not rational beings, have only a relative worth as means and
are therefore called things, on the other hand, rational beings are designated
person because their nature indicates that they are ends in themselves i.e. thing
which may not be used merely as means, Kant and Rousseau are the principal
adherents of this theory that there can be no right without will and vice-versa.
which there exist two parallel legal system the Common Law and the Equity in which the
later came to supplement the former. Both the English legal system and the Roman legal
system recognize this distinction one system administered by the common law court and
the other by the court of equity, since there is a conflict of the jurisdiction between the
two types of the court which led to two classes of right distinguishable as legal and
equitable. According to Salmond Legal Right are those which are recognized by the
Court of Common Law, equitable rights are those which are recognized solely in the
Court of Chancery. Even after the Judicature Act of 1873 which led to the amalgamation
and fusion of the law and equity the distinction between legal and equitable right still
persists.
In Roman law the Praetor without any authority to legislate exercised a big authority
and power over all judicial process. He gave his edicts which were intended to give relief
against the rigidity of the established system, i.e., jus civile. The different Praetor in
succession gave their edites which became a body jus honorarium equal in bulk and
importance to jus civile. Thus through the equity was laid the foundation of the modern
law of Trusts, Injunctions and Mortgages etc.
In India the law does not27 recognize distinction between legal and equitable interest
and rights. In India the most of the English principles of equity have been embodied in
the statute law. For instance, the English law recognizes legal and equitable estates. With
regard to the Indian law the Privy Council said28 the Law in India speaking broadly
knows nothing of that distinction between legal and equitable property in the sense in
which it is understood in England. So in India the principle in English Law- both of
common law and equity- have been embodied in the statutes irrespective of the difference
between the two systems. Thus in Indian law recognizes only the indivisible legal rights.
o Proprietary Rights and Personal Rights
The word proprietary relates to something concerning property which consists of
things, assets belonging in possession or ownership of a person. The word personal is
27 Bithal v. Shriram Savant, (1905) 39 Bom. p. 39.
28 Tagore v. Tagore, (1872) IA Supp. p. 46.
used in the sense which relates to his person or body, e.g. Affecting his character, liberty
and status in society. Thus the distinction between proprietary rights and personal rights
depends on the distinction between the term proprietary and personal. In India the
term is of great constitutional importance in a view of the constitutional provisions for the
protection of property. Hence the proprietary right is one which relates to mans property
whereas personal right is one which relates to his status. Holland is of a view that the
proprietary rights are extinction of power of a person over the physical world i.e land,
house, securities etc. While personal right relates to the position of an individual as a
citizen, as a free man as husband or father which help to make his status. Accordingly
Salmond says29 the fundamental distinction between proprietary and personal rights is in
the fact that the former are valuable while the latter are not. Keeton says30 this is true in a
sense because the former constitute part of a mans wealth while the latter are elements of
his well-being. It is also said the proprietary rights are those which are transferable since
they are a res. Personal right are, however, non-transferable since and inalienable. No one
can sell his status as a citizen or his position as a father or husband etc. among the
proprietary rights which alone cannot be transferred is the right to pension
o Perfect and imperfect rights
A right is considered perfect when it is enforceable through a court of law. There is a
corresponding duty for the breach of which a civil and criminal action will lie. Judgment
will be executed if necessary with the physical force of the state.
There are certain other rights, which are not so enforceable. They are called imperfect
rights. Claims barred by lapse of time, claims unenforceable on account of some
technical defect such as insufficient stamp or non-registration, belong to the category of
imperfect rights. Lapse of time does not destroy the right, but reduces a perfect right into
an imperfect right. Though unenforceable as such, an imperfect right may serve a useful
purpose in the following situations:
a) As a ground of defense though not as a ground of action, for example right to
set-off.
b) To support any security that has been given for it. A mortgage or pledge
remains perfectly valid, although the debt secured by it has ceased to be
recoverable by action.
c) When it is converted to a perfect right. The right of action may not be nonexistent, but may be merely dormant. An informal verbal contract may
become enforceable if some written evidence of it comes into existence, as for
instance, an acknowledgement of liability.
Rights against the state were earlier considered imperfect because a subject can have no
right against the state. However, this is no more correct. It is now well accepted that the
subject may have a legal right against the State, which can be enforced.
positive harm, while only some are bound in some ways actively to confer benefits on
others. I have a right against everyone not to be pushed into the river, but no right to be
saved from drowning.
o Principal and Accessory Rights
A right may be affected either adversely or beneficially by the existence of other
rights. A right is adversely affected when it is limited or qualified by another right vested
in a different person. It is beneficial when a supplementary right is vested in the same
person is added to it. The right so augmented is called a principal right, while the right
appurtenant to it is the accessory right. A security is accessory to the right secured. A
servitude is accessory to the ownership of the land for whose benefit it exists. Similarly,
the rent and covenants of a lease are accessory to the landlords ownership of the
property.
o Public and Private rights
According to Holland the distinction between public and private rights depends upon
the distinction between public and private persons. A Public right relates to a person
having official or public character. They are such people which are discharging sovereign
function of the State in their official capacity e.g. the members of the government and
other government officers engaged in functions assigned to them by the State. Whereas
private rights relate to a person in his own individual capacity. Thus e.g., postmaster may
have two capacities at the same time- one official capacity under the law and the other
individual capacity as a person which concern his private self or character. If he enters
into a contract with a car manufacturer for a car for his private use, he makes a contract
as a private individual and not as an agent or representative of the State. Thus a private
right concerns only private persons. In case of public rights they relate of State and
community in general in which person is not made personally liable for the acts which he
does in his official capacity. Austin, Kelson, and Duguit reject this distinction. Paton,
however says,31 the citizen has power to create rights and duties within the framework of
law, but cannot modify the rules themselves. Traditionally, jurisprudence distinguishes
between the law and the rights and duties created under that law. It seems more
reasonable, therefore, to admit the importance of the peculiar character of the State by
recognizing a fundamental distinction between public and private law.
o Vested and Contingent Rights
A vested right is a right belonging so absolutely, completely and unconditionally to a
person that it cannot be defeated by the act of any private person and that it is entitles to
governmental protection. A contingent right is a right which depends on some chance or
happening which cannot be predicted or foreseen. Thus 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. Thus all the invective facts which are necessary to create a right are necessary in
case of vested right. For example, the right of a son to succeed the property of his father
after his death is a vested right. The right of a minor to succeed to the property after
becoming a major is a vested right. Paton says a vested right depends on certain invective
facts which are necessary to create that right.32 A contingent right is one in respect of
which only some of the events necessary to bring it into existence and vest it in a party
have happened. The right of a survivorship is contingent right for the survivor may or
may not survive. For instance if the grant is to B for life and if C survives B, to C is feesimple. C has a contingent interest only because it is uncertain whether he will survive B.
o Rights in re propia and Right in re aliena
Right over ones property and right over the property of another are respectively
called rights in re propia and rights in re aliena. For example, a landowners right in his
land are in re propria, his rights of way or easement over his adjoining landowners
31 Jurisprudence by John W. Salmond, fourth edition published by Stevens and
Haynes, 1913, p. 122.
32 A text-book of jurisprudence by George Whitecross Paton published by Clarendon
Press, 1951, p.353.
Conclusion
The concept of rights and duties was meaningless before the evolution of society as there
was minimal interaction between human beings. The concept of society triggered the
need of a proper code to live peacefully which ultimately led to the evolution of plethora
of rights and duties. The question here arise is why these rights and duties were required
in the first place? The answer to this is fear. The fear of losing what one has, the fear of
being suppressed by the strong and yes ofcourse, the fear of losing ones identity.
Now, the rights and duties are always supplementary and complimentary to each
other. Wherever there is right there has to be presence of a duty. There can be no right for
which there is no duty. These rights and duties lies with the legal persons of interactions.
These interactions can occur between person A and person B or it can also happen
between A and X (State). Lets take few example to further understand the concept.
If A and B interact with each other for some purpose. Lets say that purpose is a watch
owned by A Now, B wants to buy As watch for which A is asking 1000 Rupees. To
facilitate this interaction they enter into a contract. Now, B has to pay 1000 Rupees in
order to purchase that watch. This is the duty on the shoulders of A. On the other hand, A
has right to take 1000 Rupees from B against that watch.
If A is a citizen of State X (India) and in that capacity he has certain rights guaranteed by
the law of that State. Now, He has a right to life which is protected under Article 21 of
Constitution of India. The State X (India) is in a duty to secure that right from any
danger.
We have Fundamental Rights enshrined in our constitution which are the liveliest
example of rights-duties transactions. Article 19(1)(a) secures the right to free speech and
expression to all citizens which means it is a right conferred by the law of the land to
citizens to speak their mind which is very necessary to individual development. It also
confers equal duty to rem not to violate that right in any condition until it clash with the
conditions provided in Article 19(2). A person cant have a right unless there he can enjoy
that right freely. If a citizen has a property, it is his right to enjoy that property under
Article 300 A in a reasonable manner and not opposed to public policy. It also conveys a
corresponding duty on everyone else not to infringe his enjoyment of that property by
holding nuisance, trespass, theft, etc.
Rights and duties help regulate the day to day workings of a civil society. Concepts like
contract law, criminal law etc. and democracy itself exist because of the existence of
Rights and Duties. These rights and duties ultimately form the Law. Rights and Duties
help to regulate the society without chaos and in a civilized manner. Thats why we can
say in the end that rights and duties are the bulwark to very existence of the society.
References
John Chipman Gray: Nature and Source of the Law, (New York: Colombia
University Press, 1909)
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