JURISPRUDENCE

Kasim Balarabe
LLB (ABU), BL (Nigeria), LLM (Geneva,, LLM (VU Amsterdam), Dip.
RL (IIHL, Italy); PHD Researcher (Maastricht, Netherlands)
Barrister and Solicitor of the Supreme Court of Nigeria

TOPIC EIGHT
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 CONTENTS OF THE PRESENTATION
RIGHTS AND DUTIES

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 RIGHTS AND DUTIES
RIGHT
Introduction
 Right and duties are the very important element of law.
 The term ‘Right’ has various meanings such as correct, opposite of left,
opposite of wrong, fair, just and such like other expression etc.
 But in legal sense a right is a legally permissible and protected action
and interest of a man, group or state.
Definition
 According to Austin:- “Right is a standard of permitted action within a
certain sphere”.
 He further define right as a party has a right when others are bounds to
or obliged by law to do or not to do any act.
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 RIGHTS AND DUTIES
 According to Salmond: “It is an interest recognized and protected by
the rule of justice/law.”
 According to Gray:- “Right is not an interest itself but it is the means by
which the enjoyment of an interest is secure.”
 According to Prof. Allen:- “The essence of right not a legal guarantee in
itself but a legally guaranteed power to realized an interest.”
Elements of Right
1. Subject:- The subject of a right is concerned with the person, legal and
artificial or a group who legally is entitled to seek the privilege and
benefit of against the other. In other words the subject is that the
person whom the right is vest.

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2. Content:- This is the subject matter of the right along-with the
nature and limits of that right.
3. The Person of Incidence:- It means that the person upon whom
falls the correlative duty.
4. Object:- The object of the right may be material or immaterial,
determinate or indeterminate.
Characteristics of Rights
5. Right is a general or specific type of claim, interest or such like
expression of the people in a State.
6. Right is duly recognized and approved by the State through its
agencies.
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3. A legal right is expressed as having deep correlation with a
corresponding duty, liability or disability on the part of those
against whom such right is conferred.
4. A right may have its independent existence and type of
assemblies with other rights.
5. Basic philosophy or the fundamental concept of right remains
permanent but with the time being it is subject to
incorporating the allied change in it.
6. The realization and scope of a legal right depends upon the
type of society and the nature of interest.
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Theories of Rights
 There are two main theories of legal right:-

1. Will Theory:- The will theory says that the purpose of law is to
grant the individual self expression or positive declaration.
Therefore right emerges from the human will. The definition of
right given by Austin and Holland, “that the will is the main
elements of a right.” Pollock says, “ that right is in terms of will.”
2. The Interest Theory:- Interest is the basis of right. A great German
jurist defines legal right as, “A legally protected Interest.”
According to him the basis of right is “Interest” and not “will”.

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 RIGHTS AND DUTIES
 The definition of law is in term of ‘purpose’ that law has always a
purpose. In case of right the purpose of law is to protect certain
interest and not the wills or the assertions of individuals. These
interests are not created by the State but they exist in the life of the
community itself.
Types of Rights
1. Primary and Secondary Right: They are known by Antecedent and
Remedial rights names also.
2. Perfect and Imperfect Right
3. Negative and Positive Right:- Positive means related to duty
whereas negative means not related to duty.
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4. Right in Rem & Personam
5. Right in Re propria and Right in Re aliena
6. Vested and Contingent Right
7. Proprietary and Personal Right
8. Equitable and Legal Right

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DUTY
Introduction
 The term duty may be used in various form as an obligation, as
responsibility and accountability.
 Some scholars have defined Duty as follows:-
 According to Gray - Duty is the act of or forbearance which an
organized society used to impose on people through State in order to
protect the legal right of other.
 According to Roscoe Pound - Duty is the Predicament of person
whose act are liable to be control with the assistance of the State.
 According to Hohfeld - Duty is the correlative of Right.
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Classification of Duties:
 Duty has been classified into two categories:

1. Positive and Negative Duty:- A positive duty implies some

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Essentials of Duty
a. It may be dependent and independent.
b. It consists of an obligation on the part of someone and confer a
privilege upon another.
c. The concept of duty is affirmed and protected by the law of the land
where it exist.
d. The concept of duties is a changing process which arises from time
to time, place to place and circumstances to circumstances.
e. Duty in most of the cases creates an absence of right against some
person.
f. Duty may be fundamental, legal or moral in character.
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Relation Between Right and Duties
 The following objects describes the correlation between right
and duties:-
i. A right is indispensable without any duty.
ii. A duty and right has separate and independent existence.
iii. A right procreates duty and vice-versa.

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