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-
- A claim justifiable in words;
- An attitude of human beings by some supposed ideal and natural right of life, equality, property which is by the natural law.
- 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;
- An interest which is secured and protected by law;
- A recognized claim to act forbearances by another or by all to make the interest effective;
- The capacity of creating or altering rights;
- The privileges and liberties and
- As an adjective, it is meant to give effect to recognize and give effect to moral rights.
- In the strict sense of the term, a legal right is an ascertainable claim which is enforceable by courts and justice administration agencies.
- In its wider sense, it has to be understood as any advantages or benefits conferred upon a person by rule of law.
- Legal rights need to be recognized by law; some rights are recognized by the international court under the law of nations.
- 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:
- It is a right against some person or persons
- It is a right to some act or omission of such person or persons
- 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.
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.
- D. Mahajan, Jurisprudence and legal theory, fifth edition ( reprinted 2019), EBC publishing Ltd. Lucknow
- S. Atchuthen Pillai, Jurisprudence and Legal Theory, third edition (reprinted 2019)
- Dr N.M. Paranjape, studies in jurisprudence and legal theory, eight edition.
 AIR 1968 Mad. 355
This article has been written by Sonu Parmar, 4th Year B.A LL.B student at Army Institute of Law.
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