INTRODUCTION act; (3) Powers to alter existing legal situations

INTRODUCTIONThe real creditof development of human civilization goes to law and its prohibitive processwhich apprised man of his rights and duties as a unit of the society. Peoplesare the members of the society; they had a certain legal rights and dutiestowards one another.These rights andduties are regulated by the law prevalent in the society. It is well known thatthe main purpose of law is to protect human interest by regulating the conductof individuals in the society.

For this attainment of this objective, it isnecessary that state should make use of its physical force for the enforcementof legal right and punish those who violate these rights.1A legal rightmust obtain not merely legal protection, but also legal recognition. It hasbeen said that the legal material can be identified with reference to the useof the word ‘law’ by courts. The detailed rules so identified are distributedunder various heads and new categories keep on emerging such as obligations,intellectual property and others.

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There are different ways of classifying thetexture. There are:(1) Dutiesprescribing how people ought, or ought not, to behave with regard to others,who are said to have correlative claims or rights;(2) Liberties orfreedoms to act and not to act;(3) Powers toalter existing legal situations(4) Immunitiesfrom having existing legal situation altered;(5) Location oflegal relationships(6) Principles,doctrines and standardsThe first fourconcern legal relationships between persons and are termed ‘Jural relations.’The noun ‘right’ can be given many meanings; it can be said as the standard ofpermitted action within a certain sphere. Within a particular system of ethicswe discover whether a particular action is right by asking whether it isconsonant with the general principles on which system is based.

Hohfeld’smission, in his own admission was neither a philosophical inquiry nor a studyof the nature of legal relations as an end in itself. His theory was intendedon the other hand, to “aid in the understanding and solution to practical,everyday problems of the law”. Equally important is it to note at the outsetthat Hohfeld’s thesis was stipulative or definitional and therefore intended toprovide no normative conclusion as to how legal relations should be structuredin a society.

He only endeavored to lay out a conceptual understanding of whatrights, privileges, powers and immunities are, hoping thereby to bring clarityto legal literature and judicial reasoning.Every right,therefore, involves a relationship between two or more legal persons, and onlylegal persons can be bound by duties or be the holders of legal rights. Rightsand duties are a correlative that is we cannot have a right without acorresponding duty or a duty without a corresponding right. This paper bringsout to light how Hohfeld has dealt with concept of legal rights using hisFundamental Legal Conception. Legal Rights and Duties 1.

     Legalright : Meaning and definition2Lawis an instrument, which regulates human behavior, in other word, through the instrumentalityof law, the state regulates the conduct of human being (man).Thus,the state is shouldered with an obligation to protect the legal rights of theindividuals in the society to establish peace and social security.MEANING:Theterm ‘right’ in the ordinary sense, means.

“the standard of permitted actionwithin a certain sphere”. The word right is equivalent to latin wors ‘rectus’,from which we derive the words such as rectify, correct etc. Anyaction of the person permitted by law is called ‘Right’. In other words, aninterest recognized and protected by law is called ‘right’.Similarlythe expression ‘legal right’ means “the standard of permitted action by law”.

In other words an interest recognized and protected by the state is called’legal right’. Every rights consists of two elements namely,1.      Thematerial element (eg. Money, property etc) and 2.      Theformal element (eg.

Power to realize the interest, capacity etc.).  DEFINITION:3Itis very difficult to define ‘legal right’ the definition is given by differentjurist cover either of the two elements of legal right that is material elementand formal element.SALMOND: Sirjohn Salmond, in his jurisprudence define ‘legal right’ as “an interestrecognized and protected by the rule of legal justice”.HOLLAND:”Aright is a capacity residing in one man of controlling with the assent and theassistance of the state, the actions of the others.

Every rights gets itsvalidity by state.”HOLMES:”Alegal right is nothing but a permission to exercise certain natural power andupon certain conditions to obtain protection, restitution or compensation bythe aid of public force.”PALLOCK:Rightis a freedom allowed and power conferred by Law.BUCKLAND:”Alegal right is an interest or an expectation guaranteed by law”.

AUSTIN:Accordingto Austin, “A person can be said to have a right onlywhen another or others arebound by Law.”ALLEN’S DEFINITION :Accordingto him, “Right is a legally guaranteed power to realize an interest”. Thisdefinition may be regarded as the best one, since it covers both the elementsof right.2.      ELEMENTS OR FEATURES OF LEGAL RIGHT4Thereare five elements of legal rights as stated below:·        Subject ·        Object·        Content·        Subject of duty and·        TitleSUBJECT OF RIGHT:Subjectof right is the person in whom the right resides. In other words, the personentitled to the legal right is called ‘subject of right’. Or owner of theright.Eg :’A’ purchased a house for Rs.

50,000/-. ‘A’ is called ‘subject of Right’.OBJECT OF RIGHT:Thething or an object over which the right is exercised is called ‘object ofright’. In the above example, house is the object of right.CONTENT OF RIGHTThecontent of the right is the extant to which the Subject(owner) of right canexercise his right over the thing.

(object of right that is house in aboveexample). If the subject of right is the owner, he can sell it or give it asgift or even destroy it. Ifthe subject of right is a tenant, he can use of enjoy, but cannot sell ordestroy it.SUBJECT OF DUTY:Lawrecognized right of a person if there is a corresponding duty on the part ofanother person. To accord recognition to the right of a person, law imposes anobligation or duty on another person/persons or on the world at large exceptthe subject of right.TITLE:’Title’ is a process, bywhich the right is vested/conferred. Purchase, gift, etc.

, confers title on aperson. 3.      LEGAL RIGHT AND FUNDAMENTAL RIGHT Both the legal right (Eg. RIGHT TO PROPERTY) are the rightsrecognized and protected by the state.

However, the state can waive/take awaythe legal right for the public interest or welfare of the state. But thefundamental rights are those right. Which cannot be taken away by the state orany authority.If the fundamental right is taken away/violated, the aggrieved canapproach the high court (under article 226 of the Indian constitution) orsupreme court (under article 32 of Indian constitution) for protection orenforcement of the fundamental right.If the legal right is taken away, the aggrieved cannot protect itthrough the court of Law. In other words, fundamental rights are enforceable whereaslegal rights are not enforceable.For instance, right to property earlier that is before 1979 was afundamental right guaranteed under article 19(1)(f) of the Indian constitution.

After passing of the constitution (44th) Amendment Act, 1979, rightto property under Article 31 and 19(1)(f) is deleted. Now the right to propertyis a legal right (constitutional right under Art. 300-A)4.     KINDSOF RIGHTS5Rightsmay be classified under the following heads·        Perfect and imperfect rights·        Positive and negative rights·        Rights in rem and rights in personam·        Rights in Re propria and rights in Re aliana·        Proprietary rights and personal rights·        Legal and equitable rights ·        Vested and contingent rights·        Public and private rights and·        Principal and accessory rights a.     Perfectand imperfect rights:Perfectright is one which is recognized and enforceable by Law. Eg. ‘a’ lends ‘b’ Rs.10000/- against a promissory note.

If ‘a’ sues ‘b’ before three years, lawrecognizes A’s right and enforce it. (fundamental rights are enforceable). ‘Imperfectright’ is one, which is recognized, but not enforceable.

In the above exampleA’s rights become imperfect if he sues after 3years that is beyond the periodof limitation. (Directive principles of state policy are not enforceable). b.     Positiveand negative rightsApositive right corresponds to a positive duty that is to do an Act or thing. Inother words, a positive right enables its owner/ holder to compel other to docertain thing. Eg. Creditor’s right over debtor, compelling him to repay is apositive right.

 Whereas,negative right corresponds to a negative duty that is ‘not to do a thing or anact’. I other words, the person against whom the negative rights is availablemust forbear (abstain) from doing some Act. Eg.

When we say that ‘X’ is ownerof watch/article no one can touch it without x’s permission. X’s right isnegative since others have negative duty. c.      Rightsin rem and rights in personamThisclassification is borrowed from roman law by English law. A right in rem is aright which is available against the entire world. Eg. Right to a  land or house.

Eg. Right available to a personin law of torts. Whereas ‘right in personam’ is a right available againstdefinite or specified person/persons. Eg. Rights available to a person in acontract. d.     Rightsin Re propria and rights in Re alianaRightin Re propria is the right over’s one owns property. It is nothing butproprietary right.

It is based on the maxim ‘he who produces belong tohimself’. Whereasright in Re aliana means a right over the property of another. Eg. A personsright of way over the land of another.e.      Proprietaryrights and personal rightsRightsin relation to one’s own property is called ‘proprietary right’.

It constitutesproperty, assets or estate of a person. Eg. Right to land, buildings etc. Personalrights are rights relating to one’s person or body. It refers to one’s characteror reputation. Eg. Right to life, personal, liberty, reputation etc. f.

      Legaland equitable rights Beforethe passing of judicature Acts of 1873 and 1875, there were two types of courtsthat is, equity courts and common law courts in England. Even after the mergerof equity and law(through the judicature Act of 1873) the distinction betweenlegal and equitable rights still continued to exist.Legalrights were those recognized and protected by the common law courts, while theequity rights were those recognized and protected by the equity courts (thehigh court of chancery in England).g.

     Vestedand contingent rightsVestedright does not depend upon the fulfillment of a condition. Contingent rightsdepend upon the condition precedent or condition subsequent.Avested right is one in which all events essential to vest the right (in owner)have happened.

Eg. Sons right to sue for property after the death of hisfather.Whilecontingent right is conditional right. It is a right which is subject to happeningof certain facts (to vest the right on the holder). Eg. ‘A’ offers to transferhis property to ‘B’, if ‘B’ marries ‘C’. here B’s right is contingent. h.

     Publicand private rights andPublicrights are those vested in by state. Eg. Right to use highway, right to voteetc. Aprivate right is one which is exercised by an individual to protect hisbenefit.

 i.       Principaland accessory rightsIn a mortgage adebt is a principal right and the security is an accessory right. Accessoryright is one which exceeds the value of original right. Then the original rightis called principal right. DUTY: MEANING AND DEFINITION6MEANING:Dutyliterally means that some person has to do something or abstain from doingsomething in favour of another person. In other words, it is “an obligation todo or omit to do something”.Inlegal sense, duty means “a legal obligation to do or not to do something”.

Eg.A servent is under a duty to serve his master. A son is under a duty to feedhis dependent parents. DEFINITION:Hibbertdefines legal duty as “the predicament or a person whose acts are liable to becontrolled by another with the assent and assistance of the state”. Salmondsays , “a duty is roughly speaking an Act which would be wrong.

” To ascribe aduty to a man is to claim that he ought to perform a certain act. Accordingto dicey, “duty is a species of obligation. People obey it due to indolence,deference, sympathy, fear and reason.Andalso due to psychological, social and moral pressures.

The majority of dutiesare supported by state. The breach of the duty is imprisonment or fine.” KINDS OF DUTIES7·        Universal, general and particular duties·        Moral and legal duties·        Primary and secondary duties·        Positive and negative duties and ·        Relative and absolute duties ·        Universal,general and particular dutiesAccordingto jenks, universal duties are those, which are binding on all normal citizensof the community.

General duties are those, which are binding on specificclasses of normal persons. Particular duties are those, which are bindingbetween the persons, who have voluntarily undertaken them.·        Moraland legal dutiesAmoral duty is one, which can be enjoyed by the rules of propriety and moralright.

Whereas legal duty is one, that can be enjoyed by the law of land.·        Primaryand secondary dutiesTheformer is main, essential and independent, while the latter is ancillary andexists for enforcement of some other duty. For instance, bank’s primary duty isboeeowing and lending.Itssecondary duty is to render agency services to its customers. Eg. Collectionand payment of cheques, sale and purchase of assets, shares etc, on behalf ofthe customers.·        Positiveand negative duties and whenthe law obliges on to do an Act, our duty to do such act is called positiveduty.

Eg. Duty to walk on the left side of the road. Similarly, ‘A’ lends Rs.10,000/- to ‘B’. then ‘B’ has a duty to repay the amount to ‘A’. ‘B’ duty iscalled positive duty.

When the law obliges us not to do an act, such duty iscalled positive duty. Eg. Duty not to enter into private land or not to makeunauthorized use of another’s property.·        Relativeand absolute dutiesSalmond says that rightsand duties are correlative. But Austin says that rights and duties are notcorrelative but interdependent. Austin classifies duties into two categoriesnamely:a.

       Relativeduties and,b.      Absoluteduties.Relativeduty is one, for which there will be corresponding duty. Eg.

‘A’ enters into anagreement with ‘B’ to purchase his (B’s) house. Here, ‘B’ has a duty (relativeduty) to sell the house and pay the amount. Absolute duty is one, which has nocorresponding right. According to Austin, absolute duties are sub-divided intofour classes namely –a.     Dutiestowards god or lower animalsAccordingto Austin, in respect of duties towards god and lower animals, there will be nocorresponding rights from the god or lower animals because the (god and loweranimals) are not legal persons.

The duty towards god is not a legal duty sincethere can be no corresponding right from the god.b.     Dutiesowed to persons indefinitelyAustinopines that rights can be vested in some definite/determinate person or personsand cannot be vested in an indefinite/indeterminate person/persons likesociety, having no corresponding duties.

c.      Self-regardingduties andSelf-regardingduties pertain one’s own-self and there will be no corresponding right fromone’s own-self. Duty in such situation is absolute without any correspondingright.  d.     Dutiestowards the sovereign or state Peopleor citizens in a particular country owe duties towards theirKing/soverign/state. There eill be no corresponding rights because theking/soverign/state being the ruler cannot be the holder of rights.  1.Dr.

N.V. Paranjape Studies in Jurisprudence And LEGAL THEORY, 359, (7th ed.

,2013)  2Dr.N.V. Paranjape, Studies in Jurisprudence And LEGAL THEORY, 361, (7th ed.

,2013)3Dr. Rega Surya rao, Studies in Jurisprudence And LEGAL THEORY, (95,96), (2nded., 2013)4Dr. Rega Surya rao, Studies in Jurisprudence And LEGAL THEORY, 96, (2nd ed.

,2013)5.Dr.N.V. Paranjape, Studies in Jurisprudence And LEGAL THEORY, 375, (7th ed.

,2013)6.Dr. Rega Surya rao, Studies in Jurisprudence And LEGAL THEORY, 101, (2nd ed.,2013)7Dr.N.

V. Paranjape, Studies in Jurisprudence And LEGAL THEORY (7th ed., 2013).