Institute of Law, University of Sindh

LL.B Part-I: Introduction to Jurisprudence Syllabus

[Rehana Anjum Assistant Professor, Cell No. 03332624934]

Theme: 2

I. Objectives:

At the end of the theme, you should be able to:

• Explain what is Right, Legal Right, and the different definitions of Legal Right;

• Present some aspects of the debate about the nature, Scope and the value of Legal right;

• Characteristics of Legal Right; and

• discuss the kinds of right.

II. Content:

1. Meaning of Legal Right

2. Definitions of Legal Right
3. Main perspectives of viewing legal rights (Theories of Legal Rights)
4. Characteristics of legal right.
5. Kinds of legal Right.

Legal Rights
There can be no duty without a right. The concept of legal right is of fundamental significance
in modern legal theory, because in today’s complicated society no one can live without rights.
In a welfare state, apart from food, clothing and shelter a citizen requires “rights” which are
recognised and enforced by the courts of law. There are three main perspectives of viewing
rights:
1. THE WILL THEORY: According to this theory, the purpose of law is to grant to the
citizen the means of free expression of his will. Therefore it is contented that right
emerges from the human will. In short, the will theorists contend that the protection
and the enforceability of the right depend upon the will of the citizen. Austin, Holland,
Pollock, Vinogradoff and Holmes define the term “Legal Right” from a will perspective.
Thus, Holland defines a legal right as, “a capacity residing in one man of controlling
with the assent and assistance of the state, the action of others.
Rights are either According to Hibbert “a right is one person’ capacity of obliging others
to do or forbear by means not of his own strength but by the strength of a third party. If
such third party is God, the right is Divine. If such third party is the public generally
acting though opinion, the right is moral. If such third party is the state acting directly
or indirectly, the right is legal.”

2. THE INTERST THEORY: This theory was propounded by the German jurist, Rudolf

Ihering and further developed by John Salmond. According to Ihering, the purpose of
law is to protect interest and not the “wills” of citizens. Salmond defines right as “an
interest recognised and protected by a rule of legal justice”. It is an interest, respect for
which is a duty, disregard of which is a wrong.
 Institute of Law, University of Sindh
LL.B Part-I: Introduction to Jurisprudence Syllabus
[Rehana Anjum Assistant Professor, Cell No. 03332624934]

3. SYNTHETIC APPROACH: An analysis of the “will” and “interest” theories reveals

that each of them exaggerates only one of the two elements. It has been therefore
suggested by some jurists such as C.K. Allen and Dr. Sethna that a synthesis of two
theories is the best approach. After all, the human will is always directed towards
certain ends; and these ends are nothing but certain interest.
C.K. Allen therefore defines a legal right as, “the will power of man applied to a utility
or interest recognised and protected by a legal system”

Characteristics of Legal Right

Every legal right has the following five characteristics:
1. THERE MUST BE A PERSON OF INHERENCE: Inherence signifies an essential part.

The person of inherence is the owner of the right or the person entitled to the right. A
legal right is always vested in a person and such a person is called the of inherence or
subject of the right.
2. THERE MUST BE A PERSON OF INCIDENCE: A legal right always operates
against some person who is under a duty to obey or respect the right.the person who
has to obey /respect the right is called the person of incidence or the subject of the
duty.
Rights and duties are two sides of the same coin. Every legal right implies a
corresponding duty. Every person of inherence implies that there should be a person of
incidence.
Example: A creditor who has a right to receive money from the debtor is the right
holder or the person of inherence, whereas the debtor who has a duty is the person of
incidence.
3. THERE MUST BE AN OBLIGATION TO DO OR NOT TO DO SOMETHING: The

content of a legal right may be an act or an omission in favour of the person entitled.
A legal right may therefore imply the doing or not doing of something on part of the
person bound.
Example:
(a). Right not to allow trespassing over one’s land.
(b). Right to receive goods under a contract.
4. THERE MUST BE AN OBJECT OF THE RIGHT: the right (act or omission), must

related some “thing”. The word thing is used in wide sense and includes:
(a). Tangible things e.g. Right to property
(b). Intangible things e.g. Right to reputation, right to good will etc.
 Institute of Law, University of Sindh
LL.B Part-I: Introduction to Jurisprudence Syllabus
[Rehana Anjum Assistant Professor, Cell No. 03332624934]

The object of the right ia also called the subject matter of the right.
5. EVERY LEGAL RIGHT HAS A TITLE: Every legal right has a title, that is to say,
certain facts or events by reason of which the right has become vested in its owner.
Title signifies the source of the legal right i.e. it signifies how the owner of the right
become the owner of the right. Following are some modes by which a person acquires
title to a right:
a) Citizenship e.g. Fundamental Rights,
b) Purchase,
c) Inheritance,
d) Gift,
e) Mortgage,
f) Trove e.g. finding something,
g) Capturing a Res Nullius.
Now we take a consolidated example to understand the above mentioned five characteristics
of a legal right.
Example: Suppose Mr. A buys a house from Mr. B, now
 Person of inherence is the buyer (i.e. Mr.A).
 Person of incidence is the seller (i.e. Mr.B) and all other persons.
 The content of right will be that nobody must disturb the peaceful enjoyment of the
house.
 The object of the right is the house.
 The title is got by purchase.

Kinds of Legal Rights

1. POSITIVE AND NEGATIVE RIGHTS: A positive right corresponds to a positive duty

and is a right that he on whom the duty lies shall do some positive act on behalf of the
person entitled. When a person has positive right, he is entitled to something to be done
by the person who has the corresponding duty.
Example : If A has bought goods from B then B has a positive right to claim the
purchase money from A.
We thus see that a positive right is a right to receive something more than what one
already has; it therefore requires the “active” assistance of the person who s under the
duty. In short, the scope of a positive right is to receive a positive benefit.
A negative right corresponds to a negative duty, and is a right that the person bound
shall refrain from (shall not do) some act which would operate to the prejudice of the
 Institute of Law, University of Sindh
LL.B Part-I: Introduction to Jurisprudence Syllabus
[Rehana Anjum Assistant Professor, Cell No. 03332624934]

person entitled. A negative right entitles its owner to some forbearance on the part of
the person who has the corresponding duty.
Example: A is taken as apprentice in B’s business and A agrees not to serve in any rival
business for 3 years. Now B has a negative right to see that for 3 years A does not serve
in a rival business. We thus see that a negative right is a right to maintain the status quo
ie. a right to retain what one already has; it therefore does not require the active
assistance of the duty-bound person, but only requires his “passive” acquiescence. In
short, the scope of negative right is that the person having the right shall not be harmed.
It should be noted that in any society, the number of negative rights are much more
than positive rights. Thus, generally speaking all men are bound to refrain from all
kinds of positive harm, while only some men are bound to actively confer benefits for
others. Example : if I have lent money to Mr. X, then I have a positive right to make him
pay the money. But the negative rights I have regarding my money apply against all the
people in the world (such as not to steal, destroy, use or alienate my money). Thus we
see the negative rights are far greater in number than positive rights.
2. PERFECT AND IMPERFECT RIGHT: a perfect right is one which corresponds to a

perfect duty; and a perfect duty is one which is not merely recognized by the law, but
enforced by the law. A duty is enforceable when action or legal proceedings will lie for
its breach.
an imperfect right is recognized by the law for certain purposes, but as incapable of
legal enforcement. Typical example of imperfect right is time barred debt. In the case of
time bared debt, the right of action is only barred, debt is not rendered extinct, so that
the lapse of time does not destroy the right but reduces perfect right to imperfect one. A
creditor of a promissory note in Pakistan can sue upon it within three years from the
date of debt becoming payable. After the expiry of this time the debt is barred by time
but it is not extinguished, i.e. for certain purposes creditors rights are still recognized,
though the time barred debt cannot be recovered in a court of law.
3. PROPRIETARY AND PERSONAL RIGHTS: proprietary right means a person’s right

and relation to his own property, estate, assets or other monetary benefits.
Example: A man may have proprietary rights in his house, car, land, furniture, shares
etc. Corresponding to proprietary right is a proprietary duty, such as a duty to pay a
debt, the duty not to infringe someone else’s copyright etc
Personal rights are rights in relation to a person’s status. Thus, right to reputation,
freedom of speech, free choice of profession, freedom to marry any person etc. all
 Institute of Law, University of Sindh
LL.B Part-I: Introduction to Jurisprudence Syllabus
[Rehana Anjum Assistant Professor, Cell No. 03332624934]

examples of personal rights. Corresponding to personal right is a personal duty such as

an obligation not to harm somebody’s reputation.
According to John Salmond, the essential nature of distinction between proprietary and
personal rights is that, proprietary are valuable, while personal rights are not normally
valuable. It means that proprietary rights can be valued in terms of money (E.g. right to
estate, money, car etc); where as personal rights cannot normally be valued in terms of
money (E.g. freedom of speech, profession, movement, marriage etc). However, some
personal rights maybe valuable such as a man’s right to his reputation. Generally
speaking proprietary rights are transferable, where as personal rights are not
transferable. It should however be noted that some proprietary rights maybe made non-
transferable by the statute law such as the right to pension.
4. RIGHT IN RE PROPRIA AND RIGHTS IN RE ALIENA: rights in re propria means

right over one’s own property. Example:

a) Right over one’s own land.
b) Right to draw water from one’s own well.
c) Right to sell off your shares.
According to Salmond, all rights which are not rights in re aliena are rights in re
propria. Let us therefore, understand the concept of right in re alienia. The right in re
aliena means right over the property of someon else. Example:
a) Right of way over another person’s land.
b) Right to draw water from another’s well.
c) Right to graze animals on somebody else’s land.
The right in re alienia is a right vested in a person in respect of property belonging to
another according to Salmond, a right in re alienia limits or reduces a right in propria.
Thus, the same “subject matter” can be both a right in re propria and a right in re
aliena.
5. PRINCIPAL AND ACCESSORY RIGHTS: A principal right is the main or primary

right vested in a person under the law. An accessory right is secondary right which is
connected to, or arises out of, the principal right.
Example:
a) The right of a person towards a tree is a principal right. The right to enjoy the
fruits of the tree is an accessory right which flows from the principal right.
b) The right to fight a law suit is a principal right. The right to engage a lawer is an
accessory right.
 Institute of Law, University of Sindh
LL.B Part-I: Introduction to Jurisprudence Syllabus
[Rehana Anjum Assistant Professor, Cell No. 03332624934]

c) The right of the landlord to the land owned is a principal right. Whereas the right
to enjoy rents is an accessory right.
The accessory right follows the principal; hence right to a debt is a principal right ,
whereas right to interest is an accessory right. Therefore, if the creditor’s right to
recover the amount is lost, he cannot recover the interest either.
6. INHERITABLE AND UNINHERITABLE RIGHTS: A right is inheritable if it survives

its owner. Proprietary rights are inheritable. Thus, the right to property, state, car, land
etc is inheritable and survives its owner.
Uninheritable rights die (i.e. are destroyed) with the death of the owner of right.
Personal rights are uninheritable. Thus the right to freedom of speech, movement,
occupation, right to marriage etc are uninheritable rights i.e. they extinguish with the
death of the owner of the right.
7. VESTED AND CONTINGENT RIGHTS: according to Salmond, a right vests when the

all the facts have occurred which must by law occur in order for the person in question
to have the right. A vested right creates an immediate interest. Whereas a right is
contingent when some but not all vestitive facts have occurred. A contingent right does
not create an immediate interest and it can be defeated when the required facts have not
occurred i.e. a right which is contingent upon the happening of some event. For
example, if a transfer of certain property is required by a valid deed of transfer,
transferee acquires vested interest. However, if the property is to be transfer upon the
condition of the transferee attaining 21 years of age, the rights so acquired is contingent
upon attainment of 21 years of age of the transferee.
8. RIGHTS IN REM AND RIGHTS IN PERSONAM: a right in rem is one which is

available against the whole world. Example: Right to your money, car, house etc. A
right in rem, however need not relate to a “tangible” thing and may be an intangible
thing. Example: The rights not to be defamed or not to be assaulted are both rights in
rem relating to intangible things.
A right in rem is also called a real right. The number of rights in rem possessed by a
person a countless. Example: Right to property, reputation, copyright, not to be beaten,
illegally searched etc. Generally speaking rights in rem are negative rights.
9. GENERAL(PUBLIC ) RIGHTS AND SPECIAL(PRIVATE) RIGHTS: The concept of

General and Special rights was propounded by H.L.A. Hart in 1955. According to Hart,
general rights are rights which are possessed equally by all members of society; for
instance, the right to vote in elections, the right to park their car in a parking zone, the
right to enter a public park etc.
 Institute of Law, University of Sindh
LL.B Part-I: Introduction to Jurisprudence Syllabus
[Rehana Anjum Assistant Professor, Cell No. 03332624934]

On the other hand special rights are those that arise out of special transactions between
specific individuals or from some special relationship between them; for instance, the
right to alimony, contractual rights, right to receive interest on deposit in bank etc.
The difference between a right in rem and general right is that a right in rem is one
which is available against the whole world, whereas, general right is a right which is
possessed equally by all members of a society.