The real credit
of 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. Peoples
are the members of the society; they had a certain legal rights and duties
towards one another.
These rights and
duties are regulated by the law prevalent in the society. It is well known that
the main purpose of law is to protect human interest by regulating the conduct
of individuals in the society. For this attainment of this objective, it is
necessary that state should make use of its physical force for the enforcement
of legal right and punish those who violate these rights.1
A legal right
must obtain not merely legal protection, but also legal recognition. It has
been said that the legal material can be identified with reference to the use
of the word ‘law’ by courts. The detailed rules so identified are distributed
under various heads and new categories keep on emerging such as obligations,
intellectual property and others. There are different ways of classifying the
texture. There are:
prescribing how people ought, or ought not, to behave with regard to others,
who are said to have correlative claims or rights;
(2) Liberties or
freedoms to act and not to act;
(3) Powers to
alter existing legal situations
from having existing legal situation altered;
(5) Location of
doctrines and standards
The first four
concern legal relationships between persons and are termed ‘Jural relations.’
The noun ‘right’ can be given many meanings; it can be said as the standard of
permitted action within a certain sphere. Within a particular system of ethics
we discover whether a particular action is right by asking whether it is
consonant with the general principles on which system is based. Hohfeld’s
mission, in his own admission was neither a philosophical inquiry nor a study
of the nature of legal relations as an end in itself. His theory was intended
on 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 outset
that Hohfeld’s thesis was stipulative or definitional and therefore intended to
provide no normative conclusion as to how legal relations should be structured
in a society. He only endeavored to lay out a conceptual understanding of what
rights, privileges, powers and immunities are, hoping thereby to bring clarity
to legal literature and judicial reasoning.
therefore, involves a relationship between two or more legal persons, and only
legal persons can be bound by duties or be the holders of legal rights. Rights
and duties are a correlative that is we cannot have a right without a
corresponding duty or a duty without a corresponding right. This paper brings
out to light how Hohfeld has dealt with concept of legal rights using his
Fundamental Legal Conception.
Legal Rights and Duties
right : Meaning and definition2
is an instrument, which regulates human behavior, in other word, through the instrumentality
of law, the state regulates the conduct of human being (man).
the state is shouldered with an obligation to protect the legal rights of the
individuals in the society to establish peace and social security.
term ‘right’ in the ordinary sense, means. “the standard of permitted action
within a certain sphere”. The word right is equivalent to latin wors ‘rectus’,
from which we derive the words such as rectify, correct etc.
action of the person permitted by law is called ‘Right’. In other words, an
interest recognized and protected by law is called ‘right’.
the 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,
material element (eg. Money, property etc) and
formal element (eg. Power to realize the interest, capacity etc.).
is very difficult to define ‘legal right’ the definition is given by different
jurist cover either of the two elements of legal right that is material element
and formal element.
john Salmond, in his jurisprudence define ‘legal right’ as “an interest
recognized and protected by the rule of legal justice”.
right is a capacity residing in one man of controlling with the assent and the
assistance of the state, the actions of the others. Every rights gets its
validity by state.”
legal right is nothing but a permission to exercise certain natural power and
upon certain conditions to obtain protection, restitution or compensation by
the aid of public force.”
is a freedom allowed and power conferred by Law.
legal right is an interest or an expectation guaranteed by law”.
to Austin, “A person can be said to have a right onlywhen another or others are
bound by Law.”
ALLEN’S DEFINITION :
to him, “Right is a legally guaranteed power to realize an interest”. This
definition may be regarded as the best one, since it covers both the elements
2. ELEMENTS OR FEATURES OF LEGAL RIGHT4
are five elements of legal rights as stated below:
Subject of duty and
SUBJECT OF RIGHT:
of right is the person in whom the right resides. In other words, the person
entitled to the legal right is called ‘subject of right’. Or owner of the
‘A’ purchased a house for Rs. 50,000/-. ‘A’ is called ‘subject of Right’.
OBJECT OF RIGHT:
thing or an object over which the right is exercised is called ‘object of
right’. In the above example, house is the object of right.
CONTENT OF RIGHT
content of the right is the extant to which the Subject(owner) of right can
exercise his right over the thing. (object of right that is house in above
example). If the subject of right is the owner, he can sell it or give it as
gift or even destroy it.
the subject of right is a tenant, he can use of enjoy, but cannot sell or
SUBJECT OF DUTY:
recognized right of a person if there is a corresponding duty on the part of
another person. To accord recognition to the right of a person, law imposes an
obligation or duty on another person/persons or on the world at large except
the subject of right.
‘Title’ is a process, by
which the right is vested/conferred. Purchase, gift, etc., confers title on a
3. LEGAL RIGHT AND FUNDAMENTAL RIGHT
Both the legal right (Eg. RIGHT TO PROPERTY) are the rights
recognized and protected by the state. However, the state can waive/take away
the legal right for the public interest or welfare of the state. But the
fundamental rights are those right. Which cannot be taken away by the state or
If the fundamental right is taken away/violated, the aggrieved can
approach the high court (under article 226 of the Indian constitution) or
supreme court (under article 32 of Indian constitution) for protection or
enforcement of the fundamental right.
If the legal right is taken away, the aggrieved cannot protect it
through the court of Law. In other words, fundamental rights are enforceable whereas
legal rights are not enforceable.
For instance, right to property earlier that is before 1979 was a
fundamental right guaranteed under article 19(1)(f) of the Indian constitution.
After passing of the constitution (44th) Amendment Act, 1979, right
to property under Article 31 and 19(1)(f) is deleted. Now the right to property
is a legal right (constitutional right under Art. 300-A)
may 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
and imperfect rights:
right 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, law
recognizes A’s right and enforce it. (fundamental rights are enforceable).
right’ is one, which is recognized, but not enforceable. In the above example
A’s rights become imperfect if he sues after 3years that is beyond the period
of limitation. (Directive principles of state policy are not enforceable).
and negative rights
positive right corresponds to a positive duty that is to do an Act or thing. In
other words, a positive right enables its owner/ holder to compel other to do
certain thing. Eg. Creditor’s right over debtor, compelling him to repay is a
negative right corresponds to a negative duty that is ‘not to do a thing or an
act’. I other words, the person against whom the negative rights is available
must forbear (abstain) from doing some Act. Eg. When we say that ‘X’ is owner
of watch/article no one can touch it without x’s permission. X’s right is
negative since others have negative duty.
in rem and rights in personam
classification is borrowed from roman law by English law. A right in rem is a
right which is available against the entire world. Eg. Right to a land or house. Eg. Right available to a person
in law of torts. Whereas ‘right in personam’ is a right available against
definite or specified person/persons. Eg. Rights available to a person in a
in Re propria and rights in Re aliana
in Re propria is the right over’s one owns property. It is nothing but
proprietary right. It is based on the maxim ‘he who produces belong to
right in Re aliana means a right over the property of another. Eg. A persons
right of way over the land of another.
rights and personal rights
in relation to one’s own property is called ‘proprietary right’. It constitutes
property, assets or estate of a person. Eg. Right to land, buildings etc.
rights are rights relating to one’s person or body. It refers to one’s character
or reputation. Eg. Right to life, personal, liberty, reputation etc.
and equitable rights
the passing of judicature Acts of 1873 and 1875, there were two types of courts
that is, equity courts and common law courts in England. Even after the merger
of equity and law(through the judicature Act of 1873) the distinction between
legal and equitable rights still continued to exist.
rights were those recognized and protected by the common law courts, while the
equity rights were those recognized and protected by the equity courts (the
high court of chancery in England).
and contingent rights
right does not depend upon the fulfillment of a condition. Contingent rights
depend upon the condition precedent or condition subsequent.
vested 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 his
contingent right is conditional right. It is a right which is subject to happening
of certain facts (to vest the right on the holder). Eg. ‘A’ offers to transfer
his property to ‘B’, if ‘B’ marries ‘C’. here B’s right is contingent.
and private rights and
rights are those vested in by state. Eg. Right to use highway, right to vote
private right is one which is exercised by an individual to protect his
and accessory rights
In a mortgage a
debt is a principal right and the security is an accessory right. Accessory
right is one which exceeds the value of original right. Then the original right
is called principal right.
DUTY: MEANING AND DEFINITION6
literally means that some person has to do something or abstain from doing
something in favour of another person. In other words, it is “an obligation to
do or omit to do something”.
legal 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 feed
his dependent parents.
defines legal duty as “the predicament or a person whose acts are liable to be
controlled by another with the assent and assistance of the state”.
says , “a duty is roughly speaking an Act which would be wrong.” To ascribe a
duty to a man is to claim that he ought to perform a certain act.
to dicey, “duty is a species of obligation. People obey it due to indolence,
deference, sympathy, fear and reason.
also due to psychological, social and moral pressures. The majority of duties
are 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
general and particular duties
to jenks, universal duties are those, which are binding on all normal citizens
of the community. General duties are those, which are binding on specific
classes of normal persons. Particular duties are those, which are binding
between the persons, who have voluntarily undertaken them.
and legal duties
moral duty is one, which can be enjoyed by the rules of propriety and moral
right. Whereas legal duty is one, that can be enjoyed by the law of land.
and secondary duties
former is main, essential and independent, while the latter is ancillary and
exists for enforcement of some other duty. For instance, bank’s primary duty is
boeeowing and lending.
secondary duty is to render agency services to its customers. Eg. Collection
and payment of cheques, sale and purchase of assets, shares etc, on behalf of
and negative duties and
the law obliges on to do an Act, our duty to do such act is called positive
duty. 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 is
called positive duty. When the law obliges us not to do an act, such duty is
called positive duty. Eg. Duty not to enter into private land or not to make
unauthorized use of another’s property.
and absolute duties
Salmond says that rights
and duties are correlative. But Austin says that rights and duties are not
correlative but interdependent. Austin classifies duties into two categories
duty is one, for which there will be corresponding duty. Eg. ‘A’ enters into an
agreement with ‘B’ to purchase his (B’s) house. Here, ‘B’ has a duty (relative
duty) to sell the house and pay the amount. Absolute duty is one, which has no
corresponding right. According to Austin, absolute duties are sub-divided into
four classes namely –
towards god or lower animals
to Austin, in respect of duties towards god and lower animals, there will be no
corresponding rights from the god or lower animals because the (god and lower
animals) are not legal persons. The duty towards god is not a legal duty since
there can be no corresponding right from the god.
owed to persons indefinitely
opines that rights can be vested in some definite/determinate person or persons
and cannot be vested in an indefinite/indeterminate person/persons like
society, having no corresponding duties.
duties pertain one’s own-self and there will be no corresponding right from
one’s own-self. Duty in such situation is absolute without any corresponding
towards the sovereign or state
or citizens in a particular country owe duties towards their
King/soverign/state. There eill be no corresponding rights because the
king/soverign/state being the ruler cannot be the holder of rights.
Dr.N.V. Paranjape Studies in Jurisprudence And LEGAL THEORY, 359, (7th ed.,
Dr.N.V. Paranjape, Studies in Jurisprudence And LEGAL THEORY, 361, (7th ed.,
Dr. Rega Surya rao, Studies in Jurisprudence And LEGAL THEORY, (95,96), (2nd
Dr. Rega Surya rao, Studies in Jurisprudence And LEGAL THEORY, 96, (2nd ed.,
Dr.N.V. Paranjape, Studies in Jurisprudence And LEGAL THEORY, 375, (7th ed.,
Dr. Rega Surya rao, Studies in Jurisprudence And LEGAL THEORY, 101, (2nd ed.,
Dr.N.V. Paranjape, Studies in Jurisprudence And LEGAL THEORY (7th ed., 2013).