17 LEGAL RIGHTS & DUTIES i Cuties are regulated by the law prevalent in the society. It is well known that the main purpose of law is to protect human interests by regulating the conduct of individuals in the Society. For the attainment of this objective, se of its physical force for the enforcement of te these rights, It therefore, follows that in all civilised societies law Consists of those rules which regulate human conduct and it is the State which enforces the rights and duties created by ra Tules, The conception of right accordingly is of fundamental significance in modern legal theory because rights are indispensable for all civil societies and are recognised and enforced by the State, vayqut 8 t© be noted that the term ‘right’ is Closely connected with the terms ‘wrong’ and uty. It would therefore be desirable to refer to them before analysing the concept of right. Legal Wrongs Salmond defines ‘wron synonym of it is injury, known as legal injury w ig" as “an act contra in its true and primary ser hich is against law or jus, Wrongs may be of two kinds, namely, (1) moral wrongs and (2) legal wrongs. ‘A moral wrong is an act which is morally or naturally wrong, being contrary to the rule of natural justice whereas a legal wrong is an act which ig legally wrong, being Contrary to the rule of legal justice and a violation of the law. In simpler words, a wrong is a violation of legal right (injuria). A legal wrong may or may not be a moral wrong and conversely a moral wrong may OF may not be a legal wrong. For instance, non-payment of a time-barred debt is 2 moral wrong but it is not a legal wrong since the sa me is not enforceable by law. Generally, recognition of an act as a legal wrong entails punishment or suppression by the physical force of the State. Duties ry to the rule of right and justice, A nse of injuria”. In its legal Sense, itis A duty is an obligatory act, Thus duties and wrongs are gener: of duty and the performance of a i.e, itis an act the opposite of which would be wrong. ally co-related, The commission of a wrong is the breach duty is avoidance of wrong. Duties are also of two kinds, namely, (1) Moral, and (2) Legal, A duty may be moral but not le; both moral and legal at once, Salmon a legal duty not to sell, have for sal gal or it may be legal but not moral or it may be id illustrates this by an example, In England, there is je adulterated milk whether knowingly or otherwise, Jurisprudence (3rd ed) p. 161. Salmond on Jurisprudence, (12th ed) p. 217. (279) Subbarao G. itagerald ocdiilicu Willl vacJURISPRUDENCE AND LEGAL THEORY ; 280 2 Since this duty is irrespective of stion of negligence. ' ara lnce ici exclusively legal and not a moral duty, On che fa we seer eiay in England to sefrain from offensive curiosity about one's Meith By ee eeton rit does them harm, Here ts clearly a breach of mora dy and gant legal duty. The law enforessthe performance ofa legal duty or punishes the disrepang The law Classification of Legal Duties The duties which the law recognises may be of different ki classified under the following heads : Positive and Negative Duties—A duty may either be positive op nepang When law obliges a person to do an act, the duty is le Pesitive. When the ay Chips him/her to refrain from doing an act, itis a negative duty Person over = another, he is under a duty to pay-off the amount of debt. 8 his postive dup Te performance of a positive duty extinguishes both duty and righ. The ills a negative duty is that if a person has a right to a land, a er are under a duty not to interfere with that person's exclusive use of land. Thus a nega capable of being exitinguished by fulfilment. Primary and Secondary Duties.—Again, a duty may be either Secondary. A primary duty is one which exists per se and is independent of any duty. For instance, to forbear from causing personal injury to another isa primary dun A secondary duty, on the other hand, is one which has no independent existence but erg, only for the enforcement of other duties. For example, a duty to Pay damages fore lury done to a person, isa secondary duty. A secondary dut is also called a sanining ora remedial duty, ; kn of it, nds, They a a orrespong i in ive duty ig iz Prthary oy 18 to Keeton, a duty is an act ct ofa right vested in anothe and the breach According to hin, ly called a crime and forbearance compelled by the State in respe: which is a wrong. Hibbert refers to absolute and relative duties, absolute duties are owed only to the State, breach of which is generally it is punishment, Relative duti redressible by ct he injured party. Austin also suppor te View that certain duties are absolute, that i instance, duty towards God o State of kindness towards animals is also a in absolute duty, Allen also supports Austin’s view that a duty owed to the State is absolute and {here ae no co-relatve rights in the State. Te Quote his words, "A State compels chldcen 120 £9 Schoo, or to be vaccinated, prohitene the sale of certain drugs or alcoholic liquors, or forbids the jmPortation of animals which have Not first been quarantined. In Such cases, the ich State has no Corresponding right, Particularly, the duties enforced by Criminal law are absolute duties." Salmond, however, rejects Austin's Concept of absolute duty. He says, “there canb no duty without a right any more than there can be a husband without a wife or parent Pithout a child." Rights and duties are always correlated and therefore, there is no scope Sram absolute duty. Gray also denies the existence of an absolute duty. FARR oT cose iene pis in au as 4. Fitzgerald py, + Salmond on Juris ree Nea iaprudence, (12 Gray J.C. : Nature and, Le (2th ed). 217. Sources of Law, p. 18, ovate wiurCamScLEGAL RIG Hs & buTIES 2KI Legal Rights Sir John Salmond defines rig justice, Wis an i wrong. A man sts bu r sts but allo interests exist de facto and not de jure; they fasta rule of right. ‘The violation of them is no wrong and mene are things which are to man’s advantage, a reputation. cae Like wrongs and duties, rights are eithe an notes recognised and protected by ame ofa eat A Mora ont rgh i r moral right but if children violate i, it is a moral weong. A lemet he een is hand is an interest recognised and protected by a rule of law, violate yen on he other | a legal wrong, Thus every one has right to privacy in his house ad a eld be interferes with this right, Would be a legal wrong MO ~ Defining a legal right John Austin observed, “a party has a right when another ¢ others are hound or obliged by law 10 do or forbear towards or in repard of hina" The, definition has been criticised on the ground that it overlooks the clement of interest involved in the conception of right, John Stuart Mill has illusteate the inadequacy ol Austin's definition of right by pointing out that when a entenced to death the Jailor is duty-bound (0 execute him, y say (a8 per Austin’ definition) that the convict has a right to only a disability imposed by law and no right at all. yess HE as an | on a inter Merest in respect of which the varied interes at recogni is a duty em are 'd and protected by a rule or ind the disregard of which is Not recognised by law, M patnition oF protection from ct for them ix no duty, Int + Aman has interest in hi is freed and if any person ie son ‘Then will it be proper to tit 0 be hanged? In \_ Holland defines a legal right as “a capacity residing in one man of controlling with the assent and assistance of the State the actions of others", Thus, Holland lays greater ‘ emphasis on the element of enforcement of legal right while Salmond lays greater s on recognition of right. : \ Ihring also defin toan end. ight as ‘legally protected interest’, He considers law as means \\ Vinogradoff observed that “right is a range of action assigned to a particular will within the social order established by law...a right, therefore, supposes a potent exercise of power in regard to things or persons...when a man claims something as his right, he ms it as his own or as due to him." The definition, however, seems to be unsatisfactory as it docs not take notice of the clements of ‘recognition’ and ‘protection’ ¥ the rule of justice which are indispensable for a legal right, G.W. Paton also agrees that one of the essential conditions of a legal right is that it should be enforceable by the legal process of the State, He, however, mentions three exceptions to this general assumption ;— 1. It is not necessary that the State should ab sarily enforce all the legal rights. There may be cases when instead of enforcing a right, the State may redress the wrong by getting compensation paid to the injured party. 2, There are certain rights which are imperfect by nature. ‘That is, they are recognised by the law (State) but not enforced by it, For example, in a time-barred debt the right of the creditor to recover the debt is an ‘imperfect right’ because the debt becom irrecoverable after the expiry of the period of limitation prescribed by the law of limitation.® But if the debtor makes payment of borrowed money to the creditor after the %. In the Indian Limitation Act, 1963 this period is three years. { j | \ | } 1 { | \ S Scanned with CamScTHEORY AL! JURISPRUDENCE AND LEG 282 cognised as valid payment of dety , 5 be legally recognis py 7 : imitation it would be Tees amount from the ereditor Om the grou te period of lin jght to recovel vie erator R debror shall not have te TE as not legally bound 10 Pay b Ags an f i ed, he was not Ie en if NO NEW consideray: 5 the debt being time Mir eequent writfen consent ev ci can be revived by any i in the document , ' ae re certain laws which do ! oe ent is not possi 1 Court of Justice ee Court of U.S.A. holds the yj f the Supreme Col A. S the view, tha not confer right of enforcement to the coun ble though they are recognised by jay Mt has no power to compel enforcemen ore s therefore their enforcem instance, the Internatio decrees under the interna ia ie ra i aot Chief Justice Dose of burt will, Therefore right is "nothing but a perm right is an inherent attri iid upon certain conditions t0 obtain protegy " According to him, lega} Tight ers a ara othe aid of public force. tions on conduct. 7 y prefers to take an arding concept of right and observes thay it is os foe of the State which lends validity to a legal ai ee tim, "9 ee ight is that power which a man has to make a person or 1s do or ref 1m doin a at ae certain acts, so far as the power arises from society imposing a legal duty to exercise certain natu restitution or compensation by th he power of enforcing legal limitations ao objective view reg upon a person or persons."? ; ; The definition of ‘legal right’ adopted by Dr. Holland brings out the distinction between right and might. It is sometimes said that "might is right" meaning thereby that every right is the creation of might or power. Every right whether divine, legal or mora ests on a relative duty on a party or parties other than the party in whom the right resides. This relative duty would not be duty if the law which imposes it were not a right is clearly distinguished from might insofar as a tight ig ing others to do or forbear by means not of one's own strength, but sustained by might ight is the capacity of obliging one's capacity of obli by the strength of a third party, ie., the State whereas mit others to do or forbear by virtue of one's own strength, Martin distinguishes legal right from a mere permission. Quoting an illustration he observes that itis erroneous to argue that a plaintiff workman had a right to go along with the path across which the machinery was erected, for he was a workman employed in the dockyard and had liberty to use the water closet, because in fact the plaintiff-workman had only the permission to use the path. If @ man enters another man's land with his Permission, he does so by virtue of a licence and not as of a tight. E Natae ‘and Sources of Law, p. 18, 8G. W. A Text Book of Jurisprude s 2A Text urisprudence, p. 222, Laski Harold: Duguit's Conception of the State in Modern Theories of Law, p. 52. . OULAIIIEU WILT Gal oCLEG S |AL RIGHTS & DUTIES 283 Dr. ava Jenks ries ht undoubtedly, the main function of the State is to ensure enone tof des, but eral these dts are enforeed for protecting the interests of i . words, when a person wronged approaches the St i yr Caan the breach of his duty, it implies that ihe wronged a fe capac he wi j i ieee rongdoer to perform his duty, which is called a ‘legal Some jurists, notably Buckland, Ihring a / ota |, Ihring and Salmond suggest icrat or an expectation glaanted by law. According Be ee peegk“eght 8 freedom allowed and power conferred by law." T-H. Green holds, "ight are vers which itis for general wellbeing thatthe individual should posses Beal Kant belly that “right is the authority to compel.” : ant Delis ‘The Supreme Court of India has defined legal right i i opt wherein ic observed ined legal right in State of Rajasthan v. Union “Yn strict sense, legal rights are co-relative of legal duties and are defined imerests which the law protects by imposing corresponding duties sone 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 in the same way as liberty is exemption from the right of ‘another. Immunity, in short, is no subjection.” L= _ewill not be out of place to refer to the case of Mr. x" y, Hospital ‘Z'"? wherein @ conflict between right of privacy and duty to ‘maintain secrecy was involved for adjudication before the Apex Court. In this case, the blood of the appellant was to be se asfused to another and, therefore sample thereof was tested atthe respondent's hospital td was found to be HIV (4). On account of disclosure of this fact, the appellant's proposed marriage to girl 'A’ which had been finalised, wes called off. Moreover, he was everally criticised and was also ostracized by the community. The appellant, therefore, approached the National Consumer Disputes Redressal ‘Commission (NCDC) for damages against the respondents on the ground that the information required under medical ethics seine kept secret, was disclosed illegally and hence the respondents were liable to pay damages, The NCDC dismissed the petition on tHe ground that the proper forum for caifereal of his grievance was civil Court and not the National Consumer Commi ‘The petitioner then moved in appeal before the ‘Supreme Court against the decision of NCDC. He contended that the principle of duty of care’ applicable to persons in medical profession included duty to maintain or fidentality and the said duty was co-reative with The right vested in the patient, that whatever came the knowledge of the doctor, would mot be divulged. He alleged that respondents Wore liable for violating their duty to not mtain secrecy and for violating the appellants right to privacy. The Supreme Court observed : “Right is an interest recognised and protected by moral and legal rules. Respect for suet interest would be a legal duty. I there is a legal right vested in a person, he cari seek protection against a person who is bound by a corresponding duty not to violate that right.” “The Court refused to accept the appellant's contention that the respondents were under ‘4 marriage carried the risk to an a duty to maintain confidentiality a8 the propose . [ identifiable person who had been protected from being infected with communicable ar Tonks Bawa Te new risprdence, p76. IL. AIR 1977SC 1361. 12, (1998)8 SCC 296. ovanmeu wiurcamSEA ORY JURISPRUDENCE AND LEGAL THE 284 : ; iter of fact, if'a person who suffers dl. Asa matter 0 . ; ich ee DSK jes a woman and thereby transmits disease from which the appa re owingly marie san a ere tani udful disease like "AID: inci Hd be he guily Or spondents were under a duty 19 . he shou! infection to that woman, he sh je i we of IPC. Therefore, appellant's contention tt he on smissed. ital y is not acceptable an z maintain secrecy is not acc ries of Legal Rights oe es are we main theores regerding nature of legal rights. They are (1) The Wij, ‘Theory, and (2) Interest Theory ¢ 1. Will Theory of Legal Right Te will tory of legal rights has been suppor by Hegel Kant aie ana ster According to this theory, a right is an inherent aa seg te is derived from human will. The : ch eee his will over an object. The theory has also been accepted by istorical jurists of Germany. Puchta observed that a legal right is ar ut oi rie which by means of his right canbe subjected to the will f the person acne gradoft considers that psychology of asserting claim is the basis of les! Eh his social order established by law no man is absolutely eed ad a. freedom of action is restricted due to rights of others. ‘According to Austin, right ofa person means that others are obliged 10 do oF forbear from doing something in relation to him. Austinian conception of right is obviously based on sovereign power of the State. Likewise, Austin defines duty as an oe io ia 6 breach of which is punishable because of the penal sanction attached with it. Justice Holland of U.S.A. pointed out that a legal right is nothing but a permission to exercise certain natural powers to obtain protection under certain conditions. It has the support of public force for its protection.!3 Duguit suggests that will is not an 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. 2. Interest Theory of Legal Right Another popular theory regarding the nature of legal right is called the Interest Theory which was mainly propounded by the German Jurist Ihring. According to this theory,."a legal right is a legally protected interest." Ihring 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. The main object of law is protection of human interests and to avert a conflict between their individual interests.)But Salmond has criticised Ihring's 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 “recognised by it. He cites an example to substantiate this view. The interests of beasts are to some extent protected by law inasmuch as cruelty to animals is 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 eruelty merely as a moral right, Gray was greatly impressed by Salmond’s view about legal right. He, however, held that the interest theory was only partly true. He emphasised that a legal right is not an 13, Dias & Hughes : Jrkspradence, p. 250. 14." In India, the Prevention of Cructy to Animals Act, 1960, See also the Wild Life Protection Act Pa ovate wii GamScLEGAL RIGHTS & DUTIES 285 interest in itself but it is only a mem MS to extend ; gal right as that powe i Nd protecti¢ sai ty Imposing pt dy apn efor Wort foe for example, if a man lends some syeeon {HEM through the agency of law eens his money from the debtor is in realty ot Ne fey TBhE of the creditor to rcoer ~ ity, not i . ve conferred on him by iw by the exercise of whietnne ae the debe cate a ower fmterest is not a legal sighe ae Pus, MONEY from the debtor is peageeln Otnee words, the interest Leer ert in itself it is rather his object. Ir eae ey la but this him By laws {0 recover the money which is his legal ight” = POWET conferred on Dr. Allen has attempted to reconcile the essence of a legal right scems to be, not legally sua protected interest by itself, but the legally geareotees sound theory would be to consider both the elemen ingredients of a legal right. nied power by Power to realise an interest. Thus a MS of will and interest as essential The totalitarian view com ; r pletely denies the existence of legal ri State being omnipotent, individual has no separate existence from rights belong to the State and the individuals do not have any such. This view has, however, been re of democratic welfare States, ghts. They argue that Therefore, in fact all ndependent legal right as jected being far from reality in the moder context Essential Elements of a Legal Right According to Salmond every leg d al right has the following five elements or characteristics :— 1. The Person of inherence.—He is also called the subje always vested in a person who may be distinguish Of it or the person of inkerence. Thus there cannot be a legal right without a subject or a person who owns it, However, the owner of the right need not be certain or determinate, For instance, an unborn child possesses a legal right although it is not certain whether he would be bom alive or not. Likewise, a right can be owned by the society at large, it is a valid right though the subject of right is indeterminate. ct of right. A legal right is, red as the owner of the right, the subject 2, The Person of incidence. —A legal right avails against a person upon whom lies the co-relative duty. He is distinguished as the “person of incidence.’ He is a person bound by the duty and so may be described as ‘subject of the duty’, 3. Content of the right—The act or omission which is obligatory on the person bound in favour of the person entitled. This is called the content or substance of right. 4, Subject-matter of right—It is something to which the act or omission relates, that is, thé thing over which a right is exercised. This may be called the object or subject- matter of the right. Some writers, particularly Dr. Holland argue that there are certain rights which have no objects. He cites an illustration of master and servant relationship. If B is the servant of A, then in this case ‘A’ is the person of inherence, B is the person of incidence and reasonable service is the ‘act’ to which A is entitled. But in this case the object of right is missing!5 because there is no material thing to constitute an ‘object’ in this illustration. Sir Salmond, however, considers that Holland looks at the object of right with such a narrowness that he is forced to conclude that there are some rights which have no objects. 15. Holland : Elements of Jurisprudence. p. 88. ory Scanned with CamScJURISPRUDENCE AND LEGAL THEORY ‘According to 101 ‘object in the ration is the skill, knowledge, ji the instant illustration i ’ g to Salmond the obj I" strength, time etc, of the person bound by the duty- ' itle, that is, certain facts of eve ; : al right has a title, that is, €¢ os 5. Title of the right—Every Its ‘ hhas become vested in its owner. vhic the ri which are events by reason of which ¢ : vrucrvates these elements of a tegal right by referring (0 an example, If 4 Salmond illustrates these eteci® “ubject or owner of the tight so required. The buys a piece of land from B, A is the ons in general, for a right of this kind avails person bound by the correlative duty T° POR consists in non-interference with the Sarai large Stands TH «object or the subject-matter of the right isthe uirchaser's exclusive use of the land. The obje subi Conveyance by which it was acquired from the former owne bane war ; estator leaves a gold ring to a legatee. In this ther illustration, suppose a testator gold ring to a legatee. In case a ie he aubject or owner of the right. The gold ring is the object of the right; the delivery of the ring isthe content ofthe right, the executor is the person of incidence and the will bequeathing the ring is the ‘title’ of the right." i ay ice for it, he becomes entitled t urchases anything by paying the price 2 entitled to the undisputed right of us inthe thing which he has purchased. Other persons are bound by the co-relative duty, and the owner, i.e. the person who has purchased the thing has right against the world at large. The object (which is also called the subject-matter) of the right is the thing purchased. He acquires the title of the right because the property in the object has been conveyed (transferred) to him in the manner as it was acquired by the former owner of that thing. From the foregoing illustration it will be seen that every right involves a three-fold relation in which the owner of it stands, namely; (1) itis a right against some person or persons. 2) Itis right to some acr or omission of such person or persons, (3) It is a right over or o something which that act or omission relates. There may be some rights in respect of one’s own person. Thus every person has a right not to be killed, and the object of this right is one’s life. Similarly, one has a right el i gt larly ie not to be physically assaulted, coerced, deceived or defamed, right over immovable property, personal services, efc. over which a person has a right of enjoyment. Keeton has expressed a view that a legal right has only four elements. He does not consider ‘title’ as an essential element of legal right because it is only the evidence of the right or the source of the right. 286 Where a person p Can there be an Ownerless Right? __ The English law does not accept the existence of an ownerless right because a right without a subject is an impossibility. It, however, accepts that the subject of right may be uncertain or contingent as in case of an unborn child whose being born alive is uncertain. (An ownerless right is not recognised by law, although it is not a legal impossibility). _ Like a subject of right, an object of right is also essential. A right without an object in respect of which it exists, is an impossibility. The object of right may be material hings such as furniture, books, cars, buildings or it may also be intangible such as right 16, Fitzgerald PJ. : Salmond on Jurisprudence, (12th ed) p. 223. 12. did. 18, Subbarao G. C. : Jurisprudence & Legal Theory (9th ed.) p. 167. OULAIIIEU WILT Gal oCLEGAL RIGHTS & DUTIES 287 xdwill, patents and copyright, right i f reputation, goodwill, p: Copyright, right in i Spildren etc. A master’s right t0 services of his servant is also an objectot < ‘Thus it would be seen that there cannot be d th a a legal right without a subject it inheres and an object or subject-matter in respect of which the actor omiscon ciao It must, however, be stated that Holland an : salmond'’s view that ‘object’ includes not only m: jad observed that object as an element of a legal fot the things which are immaterial and in their object €-8- Fight to protect one's person, right to Cana right be used against the State? id some other writers are opposed to the iaterial things but also immaterial thing: I right includes material things only. ani Opinion, there may be a right without an reputation erc. Another pertinent question regarding a legal right is wi i ine tate. Austin asserts that State being omnipotent, the subject connor hare me ahs against it. In his view, existence of three parties, namely, the bearer of right, the bearer of the duty and the sovereign, is essential for enforcement of any legal right. Therefore, if a person wants to use a right against the State, he being himself the bearer of duty, cannot play the role of a Sovereign. As such, subjects cannot have any right against the State, the latter being supreme sovereign authority, ae Ik must, however, be noted that after the passing of the Crown’s Proceedings Act, 1947 in England, the State immunity extends only to sovereign functions of the State, that is, there cannot be any right to claim damages against the State for the tortuous acts committed by it in exercise of its sovereign function, but the State can impose liability n itself for damages resulting from its non-sovereign functions.!9 Considered from this sandpoit there should be no objection to conferring rights on the subjects against the tate. Enforcement of Legal Rights The enforcement of legal rights is possible through the agency of court of law established by the State. The usual method of enforcement of a legal right is award of damages in civil cases. In case damages are not considered as adequate remedy, the court may order restitution of the thing itself. This is particularly so in case of rare-articles. In certain cases, specific performance may also be ordered by the Court. Another method of enforcement of legal right which is commonly resorted to is grant of an injunction whereby a party is restrained from doing an act which is likely to affect the plaintiff adversely in enjoyment of his legal right. Legal Rights distinguished from Moral Rights ‘A moral right may be defined as an interest recognised and protected by a rule of natural justice. For example, right of parents that their children should obey them or the right of children to be loved and protected by their parents. Thus both, moral as well as legal rights are interests protected, the former is protected by rule of natural justice while the latter by the law of the state. The interests or rights of beasts is a unique example of the elements of both the legal as well as moral rights being present. Cruelty to animals is an offence punishable under the criminal law and, therefore, in a sense it may be considered as a legal right because the law protects it and the state recognizes it, But duty of humanity so enforced is not 15. P& O. Steam Navigation Co. v. Secretary of State for India in Council, (1861) 5 Bom HCR Apes. pl. ocdiIlicu Will vamsc288 JURISPRUDENCE AND LAL THESE nce i merely remains a moral JULy WH Ha15 hy ‘of asserting this right, gulah between moral and Fepal right vith gefp, al igh Ts a terest el a pn st recognlied and pretete conceived by law and her themselves are not capable Salmond prefers to distng jects. According to him, mo tatural justice whereas «egal ight Ian i or legal justice. Rights and Duties are correlative ait cc every legal right is attended 1, hhas been generally aecepted that every legal ri el al dat Therefore there ig no disagreement on the point that rights ang aoa Fela existent. As already stated, a duty is roughly speaking an act which one gy? # sat the opposite of which would be a wrong, ‘The authorities, hove, pinion whether with each duty there must be a co-relative right, duties may be both, relative and absolute. By relative duties he means have conesponding rights. Relative duties are owed to a person other y imposing them and breach of them is called a civil injury rerneq, compensation (damages) or restitution to the injured party. ‘There’are, however, certain duties which are absolute. That is, those dye have a corresponding right. The breach of an absolute duty is generally y offence for which wrongdoer is punished. Austin mentions four kings <*" duties -— —— aby (1). Sel-regarding duties such as a duty not to commit suicide or net ddrugs or liquor et. 2) Duties towards indeterminate persons or public at large, ea gy commit a nuisance. y Mb, (3) Duties to those who are not human animals, birds ete (4) A duty towards the sovereign ‘or the State. Although Dr. Allen has supported the Austinian view regarding absoluse writers including Salmond, Pollock, Keeton and Paton have not accepted absolute duties. Salmond firmly’ holds that no duty can be absolu Oe cireumstances. According to him, it is misleading to say that a duty tonestes absolute. Paton also believes that rights and duties are inseparable and wees (one without the other is as impossible as that of a son without a father?) oe without a wife. Keeton also supports the view tha rights and duties are co-r Right in the strict sense is an interest which the ae anit s law protects by imposing & 7 feed to them upon ater Persons. Itis an affirmative control over ancher fa g ines, “right in this sense is a capacity residing i cca withthe assent and assistance of the State, actions of othess on Pee” OF SS Legal Right and other related concepts According to Salmond, the term ay also mean liberty, power and i Concepts in relation to legal rights, 1. The concept of duty, Conduct towards the achieve BS SUCH a5 duty towerds Grg “Tegal right and duty’ when used in their wider ese immunity. It is therefore, necessary to discuss 8 —Duty is a specie of obligation. Duties are prescripdonss! Ee 'ment of some end—moral, social or other. The ends may 2° ton G. W. = A Text Book ‘Of Jurisprudence, (2nd ed.) p. 219. ovate wiur LamS¢LEGAL RIGHTS & DUTIES 289 jne the form of the prescription. According to Professor Fuller, the main attributes my briefly be stated as follows: go _ (1), Itshould be general, though limited exceptions are permissible. @) Htshould be promulgated, {@) It should be prospective and intelligible, (4). It ust be consistent in itself. (5) Itshould be capable of fulfilment and congent with inner morality. Since duties are only prescribed behaviour, it follows that they express patterns of conduct © which people are expected to conform, 2, Right and Liberty.—Right in another sense may mean the benefit which a son derives from the absence of legal duty. In this sense it may be called liberty. Liberty or privilege denotes the absence of restraint, Liberty of a person consists in his freedom to do or not to do an act as he pleases. Liberty or privilege is freedom of a person to act or refrain from acting in a manner he likes without being prevented by law, but he has no right and he is not at liberty to interfere with the rights of others. Thus a person is at iberty to express his opinion freely on public affairs but he is not at liberty to defame others. | Austin's view. According to Austin, liberty and right are synonymous. He says, “the liberty of acting according to one's wish would be illusory if it were not protected from obstruction.” He argues that when the law affords such protection, it is in effect conferring a right, and therefore, right and liberty are synonymous. In liberty the leading idea is absence of restraint whereas in case of right protection of it is the predominant consideration, Salmond's criticism against Austin's view.—There is one thing common in liberty and right, that both confer benefit upon a person by the law. It is, however, erroneous to think that both are synonymous. Liberty arises from the absence of duties imposed upon a person. A right, on the other hand, enjoins on another the duty of doing ot forbearing from doing something for the benefit of person entitled to the right. To quote Salmond, he says, “rights are what others are to do for me; liberties are what I may do for myself". For instance, a person is at liberty to carry on business under his trade- mark but others should refrain from carrying on business with that person's trade mark because in that case that person's right would be infringed. Salmond considers absence of right as co-relative of liberty. For instance, if B commits a trespass on A's land, then A is at liberty to eject 'B' from his land but B has no right that he should not be ejected from A's land, _With regard to limitation on liberty, it may be stated that liberty ends where duty begins and vice versa, There is no suitable co-relative of liberty as it would be contradictory of right. Hohfeld, however, suggests that co-relative of liberty is "no right". 3. Power and Subjection.—Power may be defined as, " person by the law to alter, by his own will directed liabilities or other legal relations, ‘an ability conferred upon a [ to that end, the rights, duties, cither of himself or of other persons."2! Examples 21. Fitagerald PJ. : Salmond on Jurisprudence, (12th ed) p. 29, ovate wir LaMScJURISPRUDENCE AND LEGAL THEORY 200 d ina mortgagee: a por, : wwer of sale vest er 10g ee enty et. Salmond hols that power ee te day cute: lord's rig! sie 0 ki prosecute: landl namely, Public or Private. ir an ag Public powers are those which are vested in a Peron, anager state. They include various forms of legislative, j and exe Ne raion on the oer hand are those which are vested in persons " Private powers, a for their own purpose, and not as agents of the S instr is either the ability to determine the lop Telag tated that power is either lati ne psa craty to deterain ones own, Tha fist of tees ie, powe other persons, ns T Over nS OF : i ity, and the second, power over onesair "ob, persons is sometimes called authority, fis a termed as capacity. is not the same thing as a 4 is si that a power is not t taht It is significant to note a identical with liberty. For instance, I have a right to aks a 7 fees se mean thay doing so T do no wrong. It does not mean that I will make a wil innocent cgi fi ing that I can make a will effectively. Power is usually combined with liberty to exercise it non merely in an ro manner but also in a rightful manner. This is, however, no! MAYS necessarily ge . For instance, when a thief sells stolen property in the marl a the sale jg Wrong because the thief has no right to do it but it shall nevertheless be effectual and pag good title to an innocent purchaser who purchases it for value and without Notice, fy this case, there is power without co-existing liberty. The co-relative of to punish the offend the State. Again, mortgagor is subj power is liability or subjection. For example, lers, that means the offenders are subject to exere power a mortgagee has power to sell the mortgaged property, the means ject to the exercise of this power of the mortgagee. 4. Immunity and Disabilit —Exemption from the Power of a “immunity”. The co-relative of immunity is disability. The concept of im: hy +f IMunity is baseq On the latin maxim nemo dat quod non habet which mean isability on the pan of Pessons in general to transfer property which they do not themselves on? mother is caleg Just as a power is a legal ability to change legal relations, Sqamption from having a given legal relation changed by anot! Sovereign not to be sued in a foreign court, is neither 2 right ina st Nor a power. Itis, in fact, Court. The foreign courts at Proceedings against a sovereign,23 an immunity is an ther. The right of 2 The relation between j ‘0 right. Liberty arises f Taeself. Immunity arises from the abs liability in one-self. ___On the basis of the analysis of the conceptions of right, liberty, power and immunity, Salmond suggests that »—- © 2 Fog PsSamolociey, 2B, unl on Trspudence, 12 a p29 See Hohfeld's Scheme of Jural Postulates, Unfra), . ovate wir GamScLEGAL RIGHTS & DUTIES oe (1) Right is that which other persons ought to do in my behalf; (2) Liberty is that which I may do without the interference of laws (3) Power is that which I can do effectively against others; (4) Immunity is that which other persons cannot do effectively in respect of me. The concept of ‘right’ and its legal co-relatives can be better understood by the help of Hohfeld's Tables representing the inter-relationship between these jural concepts ‘— (Right) (Liberty) or Power Immunity : 57. Privilege —_y, ID< (No duty) (Duy) <> igen (Liabittyy <> sat or (Subjection) (Absence of power) In the above Tables, the four terms in the first rectangle are related to each other in more or less the same way as the four terms in the second rectangle. Salmond-has preferred to use the word ‘right in place of ‘claim’. But this may lead to some confusion because the word ‘claim’ indicates what one can force another t0 do of 0 refrain from doing. The person who can so force is said to have a claim and the person who can be made to act or forbear is said to have a duty. Therefore, the word ‘claim’ seems to be more suited than the word ‘right’ in the above Table. ___ The vertical arrows in these Tables connect jural co-relatives. Thus the co-relative of right is duty and co-relative of liberty is ‘No right’. Likewise, the co-relative of power is liability and that of immunity is disability. ‘The horizontal arrows connect the contradictories. Thus liberty or (No duty) is, the absence of right in another. Similarly, immunity is the absence of power in another.24 | The above classification as given by Hohfeld in the Tabular form is sigificant | because it shows that a legal relationship does not give rise to only one right and one duty but also gives rise to concepts such as claim, immunity, power erc., which should also be taken into consideration. Julius Stone has, however, 1 there is no justification for a co-rel necessary that each of these concepts sl rejected Hohfeld's classification of jural postulates.°5 Classification of Legal Rights Legal rights have been classified by vario generally be classified under the following heads 1. Perfect and Imperfect Rights —According to Salmond, a perfect right is one which corresponds to a perfect duty. It is not only recognised by law but also enforced by it. An imperfect right, on the other hand, is one which though recognised, is not Tao Fieegerald PS, + Salmond on Jurisprudence, (12th ed) p. 232-33. 25. Roscoe Pound : Legal Rights, (1915) p. 26. ised Hohfeld’s jural postulates on the ground that lative of a legal right. Moreover, it is also not hould have a co-relative. Roscoe Pound has also us jurists in different ways. Rights may — ovaimmecwirirca nSRISPRUDENCE AND LEGAL THEORY wu 292 ht is one in respect of which an action ca ct rigl _ enforceable by aw. In other words, APEIES' TNT's decree of the Court, if necesge law, an : erate , be successfully brought in a court of I But an imperfect right is incapabyg ° debtor. ne defaulting jus E eres ee ample of imperfect right. In inde enforced against the ¢° i e-barred debt i it within three years from 4° time-barred sue upon i ree Years from, ~ legal enforce er fof a promissory paneer time, the debt is barred by Fy the cred i After the xpi t is, for certai i. date of debt becoming payable. not extinguish the debe. That is, ae in Ppa, Ee owetil recognised though the Pie money after it bus become rt itor’ rights are still recogni tor pays the mi : ime ca + veut of law. Firstly, if the deb a that it being barred by time, was wine, cover it sayi ng bar Celica easement consideration. pt is treated as a valid consideration esh promise. Thin the time-barred debt is ented 2 ye cannot take back the things given a su the debtor has Goat to the creditor. Thus in case of an impert at rh st ova aa without paying wre eGenied but the right itself does not come t0 a eR Likes in a court of low ie rad debt converts the imperfect right into perfect right, omer jects against the State are also sometimes classified a peste of eleanor is, however, submitted that this vi W Seems i ir unenforceability. It i : inary i EMS to eine anal Tegal notions, the reason being that an ordinary imperfect righ g Jares it to be so whereas rights agains, unenforceable ee on egal serse, but he Sense thatthe tengo pe Jaw is none other than the strength of the State itself. An imperfect right can sometimes be converted into a Perfect ee where g bond is unstamped, it creates an imperfect right which is not ent beta e y Law, But on payment of prescribed penalty, it becomes a perfect right enforceable by law, 2, Positive and Negative Rights.—A right is distinguished as positive negative according to the nature of the co-relative duty it carries with it. Incase of Positive righ, the person subject tothe duty is bound to do something whereas incase of negative right, others are restrained from doing something. The positive right is aright to be positively benefited but a negative right is merely a right, not to be harmed. A right to receive compensation or damages, or a creditor's right to recover money from the deblor are examples of positive right. As against this, right of ownership is a negative right for imposes on others a negative duty of non-interference with one’s right ownership. A Tight to reputation is again a negative right in the sense that it imposes a negative duty upon others not to interfere with it imperfect The distinction between positive and negative right can be summarised as follows — (DA positive right corresponds to a positive duty whereas a negative right corresponds to a negative duty. (2) A positive right involves a positive act while a negative right involves some kind of forbearance or not doing. 3) _A positive right entitles the owner Of it to an alteration of the present position to his advantage whereas a negative right seeks to maintain the present Position of things, @ A positive right aims at some positive benefit but a negative right aims at not to be harmed, 26.” Allen v. Waters & Ca, 1935) KB 200, _ ovate wiur GamS¢293 LEGAL RIGHTS & DUTIES (5) a ; gat t A Positive right requires an active involvement of others but a negative righ (6 RRS Only passive acquiescence of other persons. A positive right receives something more than what one already has whereas a negative right seeks to retain what one already has. (7) A positive right has a mediate and indirect relation to the object while a negative right is immediately related to the object Right to the moncy in one’s debtor's pocket is an illustration of a positive tight while the money in one's own pocket is an example of a negative right. 3. Real and Personal Rights.—These are also called rights in rem and rights in personain. The distinction between real and personal rights is closely connected but not indentical with that between negative and positive duties. It is based on the difference in the incidence of co-relative duties. A 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 upon detefminate individuals. In other words, a real right is available against the world at large while a personal right is available against a particular person or Persons. The distinction between real and personal right is well illustrated by an example. A person's right to the peaceable occupation and use of his land is a right in rem because all the world is under a duty towards him not to interfere with it. But if a person grant a lease of the land to a tenant, his right to receive rent from the tenant is a right in ersonam,2” for itis available exclusively against the tenant and none else. It is significant to note that almost all real rights are negative and most of the Personal rights are positive though in a few exceptional cases a personal right may also be negative. For instance, if I have purchased the goodwill of a business from a trader, he is restrained from competing with me although all other traders can compete with me. My right of exemption from competition from that particular trade whose goodwill I have purchased under an agreement is my personal right which is negative in nature. ‘The distinction between right in rem and right in personam may be explained by an illustration : The right of a person after signing the contract for purchase of land is a right in personam against the seller that the seller shall execute a sale deed in that person's favour and transfer the property to him. After the execution of sale deed, the right of that person (i.e. purchaser) becomes a right in rem available against the whole world that nobody shall interfere with his ownership in that land, 4, Proprietary and Personal Rights.—The aggregate of a man's proprietary rights constitutes his estate, his assets and his property. They have some economic or monetary significance and are elements of wealth. For instance, money in one’s pocket or in bank, right to debt, land, houses etc., are proprietary rights. The personal rights, on the other hand, are elements in one's well-being. They have no monetary value whatsoever. Examples of personal right are right of reputation, personal liberty, freedom from bodily harm, right of a husband in respect of his wife or parent in respect of their children etc. The distinction between proprietary and personal rights can be summarised as follows :— (8) (1) Proprietary rights relate to estate of a person which includes all his assets and property in any form. The personal rights, on the other hand, pertain to the status?’ of a person. 27. These terms are derived from Roman law and called jus in rem and jus in personam. The former means right against or in respect of a thing whereas the latter means fight against or in respect of a person. 28. ‘Status’ may be defined as an aggregate of rights and duties which law attaches to a person, as one of a class, which are incapable of being changed at the desire of persons affected by them, ocdiilicu willl vaiiS¢ND LEGAL THEORY, JURISPRUDEN 4 fa per "s wealth y eas ne: ' 1s ar clements of person's Wealth Whereas per, (2) Proprietary elements of his W ‘tri thy Te NOt ale, dy nee alfenable while the personal rights a ahs ny ia she later are not heritable, ee more static as compared with the pers, are more st Proprietary rights jghts in re aliena,—Literally « (A) Prop in re propria and rights in re ae . mally s 8, igh 5. Rights int re Pps own property and right in re aliena Means rig, EM iy propria means Oe ae ie latter may also be called as encumbry erty of someone else. property of in its widest sense, er hich he BS OFF hing cy he The most absolute Might ina thing which is one's own, aed Caled dominium. T nv may have rights in property fess than full ownersh the a "ih Pee a reed in another, Ql rights are called rights in aliens ing, in fact, ves ir a ‘a right in re aliena is one which limits of dero, sore ger git loging Io some othr person in reer’ st og mater al other Fights which are not thus limited arejuria ed Propria’ 2) oe ae if 2 person mortgages his house, he has create ue ae ae by dividing s. Proprietary right in the house, The mortgagee is ne Hl yt a ra Of the House: wi mortgagor has the right to redeem the mortgage. : i iel fe ich is Now ¢o, detached and separated from the mortgagor's complete ownership is the Tight in because mortgagor's complete ownership is encumbered due to mortgage, * The pletely *e alien Salmond refers to four kinds of encumbrances, namely, : (i) lease, (ii) Servitude, gi security, and (iv) trust :-— » Ati) (@ A lease is an encumbrance of property vested in one person by a Tight to th Possession and use of it vested in another person. wl GA servinde is a tight to the limited use of a piece of I cither by the ownership or by possession of it, For exam; 8 right to the passage of light or water across adjoining 1 neighbour from building a house or structure in such a light o air to ones house. and unaccompanieg le, a right of way o, and or prohibiting the manner as to obstruct ae sla in which the ownership of Property is limited by an oes easianees i: leal With it for the benefit of Someone else. The owner : alled the tru: the encumbrance isthe Benes cc trast? MUSE and the owner of Sory Rights.—The existence of principal rights is ther rights but “eeessory rights are ancillary to Principal rights and 29, Fitzgerald PJ, ! Salmond on Juris ovate wir LamScTPGAL RIGHTS & DUTIES 29s have a beneficial effe ae be neficial effect on the principal taht, For example, Frertanae, the recovery of debt the pricipal right while se wee ey an owner of a piece of land has a right of way on U wnership of the fand is his principal ght and Fight af way in the adjoining accessory. tight, The tent and covenants of a leave are accessory to the landlord's ownership of the property >. Primary and Sanctioning Rights (Antecedent & Remedial Rights) Primary rights are also called the antecedent or substantive rights, Similarly, sanctioning rights are also called the remedial or adjectival rights. Hmay be reiterated that sanctioning rights originate from some wrong, é¢., from violation of another's right whereas primary < have some source other than wrongs, Salmond has pointed out that a primary right Saher bea tight fn rem, & g. “one’s right not to be assaulted or it may be a right i fight of a promisce that the promiser should perform his part of the eeevract, If the promiser commits a breach of the contract, promisee shall have sOkthoning right to claim damages. Sanctioning rights are in personam beause they Reult from violations by specific persons, A right to sue a court of law is an illustration fof a sanctioning right or a remedial right, Violation or breach of sanctioning right may result in penal action, i-e., imposition of a pecuniary penalty upon the defendant for the wrong which he has committed, or oO ctimarion and penal redress, which means grant of pecuniary compensation to the plaintiff in respect of damages suffered by him from the wrongful act of the defendant. 1 must, however, be stated the term “penal action” used in the context of sanctioning right does not mean criminal prosecution, it implies civil action in which the defendant is nade to pay compensation by way of penalty. Thus itis purely a civil proceeding against the defendant in which he is held liable for breach of sanctioning right. In penal redress or restitution, the defendant has to restore all the benefits derived from hye wrongful conduct in addition to a full redress for the loss suffered by the plaintiff. 8. Legal and Equitable Right—The distinction between legal and equitable right originates form the distinction between law and equity. Prior to the passing of Judicature Bee 1873, there were two distinct co-ordinate systems of law in England which Wor called the common law and the equity law. At that time, legal rights were recognised by fae common law Courts whereas the equitable rights were recognised by the Court of Chancery which was a Court of Equity. This distinction was, however, abolished by the fasion of the two Courts by the Judicature Act, 1873 but the existence of common law and equity as two distinct branches of law still persists in England, "he methods of their aration and disposition are, however, different. For example, a legal mortgage Mitt be Created by a deed but an equitable mortgage may be created by a mere writen ‘agreement oF by the deposit of title deeds. “The general principle regarding equitabe'righs is that when there are Nw sistent equitable rights claimed by different persons over the same thing, the first in time shall prevail. But where there is a conflict between a legal right and an equitable right, the legal Fight shall take precedence over equitable right even if itis subsequent to the equitable fight in origin, but the owner of the legal right must have acquired it for value and reer ut notice of the prior equity. This principle finds expression in the maxim, ‘where there are equal equities, the law shall prevail. “The Indian law, however, does not recognise the distinct since there is neither separate equity law nor separate equit ne! fon between law and equity ity courts in India. But the ocdiilicu Will>GAL THEORY JURISPRUDENCE AND LE on - fond exes in ars a ETS uity have ww oF usas principles of eq sone ect, speci hich its is no specific Ia id good conscience’ which (ie other word ae eee justice, equity ane Sopie to Indian condi by applying the so far as application of English law. sn Bon’ ere so . in Chatra Kumari Devi \. 3 fore, there can he The Privy Council, in 2 fe sland equitable ae Rs — aly ong eae ea ea the popes Geen 4 ht accrues when all the fag Called ingent Rights—A vested rig n Would have ccd which mul y I SEU Ot es ee ames se of contingent right, eae ‘owner have happened. See ieee leis transferable and heritable, : ahi it i feat ae resco crone an immediate interest and it can be defeat, contingent rig : ee eeemee es I he invest aes which ate eee 9 ca Paton has commented that when al vested: when part of the investitive fact ie ihe ah have occured the ight is vested when far of he faves Which the ting occurred, the right is contigent until the fepends.*t i ights may be illustrated thas _ ' matingent rights may Ma peer ceraay ee a eee cia val cee ee easiest transferee acquins transfer af etn property is acquired by 2 rope ans vos peng ae ‘esis iain in the property. However, if a thereof when he atains the age of Tn condition that he shall be entitled to Ln ance a connate Fight so acquired is a contingent right. This a aga eee vested right as soon as the transferee attains the age of 2 Sees At bom child in a partition suit is a contingent right which shall covert ight on hn being bom alive. | : 10, Public and Private Rights—A right vested in the State is called Tight, The State enforces such right as a representative of the subjects in public ese Hi tight is possessed by every member of the public. A private right, ony ind. is concerned with only private individuals, that is, both the parties connect it are private persons, Shaye ght, the d When, e public. interest, the other ted with Salmond, however, pointed out that all public Wrongs are not crime, e.g., the breach of @ public trust is a public wrong but it i¢ redressible like a civil injury or a privat wrong. nent Rights.—A servient right in one wi hich is subject to we encumbrance which d Teulage and the owner or occupier the, cand ovale property on which the liabili and the owner or occupier thereof the Peake Tagore v. Tagore, (1872) 1, arisprudence, (rd ed, 196). eg See is imposed is servient owner. For “A. Suppl. Vol. $7. ). pp. 269-279. PP ocdiIlicu WIL! Udl nScLEGAL RIGHTS & DUTIES 297 example, if A as the owner of a certain house has a right of way over B’s land, A’s house is the d ominant heritage and A is the dominant owner and B’s house is the servient heritage and B is the servient owner. Correspondingly, A’s right is dominant right whereas B’s is servient. Jus ad rem A right which originated from another right is called jus ad rem. That is to say, the person of inherence has a right to have some other right transferred to him. For instance, if A contracts to sell his land to B, then B acquires a right against A to have the land transferred to himself. Here right of B is called the right ad rem. A right ad rem is always a right in personam in nature. Sir Henry Maine has pointed out that legal rights and duties have special significance in jurisprudence because the status of a person is determined on the basis of his rights and duties. According to him, "status is a legal condition in which rights and duties are imposed by operation of law as distinct from a condition in which they are acquired by the person's own voluntary acts." Status being conferred on a person by law, he cannot be deprived of it by other persons.>? According to Dicey, infancy, guardianship, legitimacy, husband-wife relationship, insane and curator, corporation efc. are some examples of legal status. Finally, it may-be concluded that different kinds of rights and duties should be nalysed in the context of the law under which they are created and protected. The person Jaiming the right must establish his title to it. It is only due to the existence of rights ind duties that the concept of legal personality has evolved in jurisprudence because itis he only measure for regulating the rights and duties of individuals in society. ooo Scanned with CamSc