CONCEPT OF RIGHTS

1. Rights and duties are one of the valuable aspects of Jurisprudence.

2. Rights, wrongs and duties are either moral or legal.
3. Rights may also be owned by law and artificial persons.
4. Rights help to maximize the social utility which provide the strongest
protection for individuals.
5. Rights and duties are the fundamental aspects of law which are correlated.
6. Rights are the base of jurisprudence because the purpose of the law is to
establish and provide justice.
7. Justice is also called the situation of protection of rights.
8. Administration of justice is concerned with the enforcements of the rights
and duties created by the rule of the law.
9. Concepts of wrongs and duties are closely connected with the concepts of
rights.

DEFINITIONS FROM JURISTS

1. SALMOND Rights are concerned with the interests and indeed have been
defined as interests protected by rules of right that is by moral or legal rules.
2. ROSCOE POUND Right in legal sense has following meanings:
a) One meaning is interest which is secured and protected by
law;
b) Another meaning is a recognized claim to act or
forbearance by another or by own in order to make the
interest effective.
c) A third use is to designate a capacity of creating divesting
or altering right. Here the proper term for right would be
power.
d) A fourth use is to select certain condition or general,
special non-interference with the natural faculties of
action. They are better called liberties and privileges.
e) The final sense right is used as an adjective to mean that
which accords with justice that which recognizes and gives
effect to moral right.
3. BENTHAM Rights are in themselves advantages, benefits for him who
enjoy them. (The power of the state is connected with the concept of right.)
4. POLLOCK Right is freedom allowed and power conferred by law.
5. HIBBERT Right is one person’s capacity of obliging others to do or forbear
by means not of his own strength but by the strength of a third party.
6. HOLLAND Right is a capacity residing in one man of controlling with the
assent and the assistance of the state, the action of others.
 7. K.R.R. SHASTRI A right may be defined as an interest recognized and
protected or guaranteed by the state since it is conducive to social well-
being.
8. C.K. ALLEN Right is neither legally protected interest alone nor legally
guaranteed power but combination of power and interest.
CONCEPT OF LEGAL RIGHTS
1. Legal Rights may be constitutional, statutory, regulatory, contractual,
common law or conferred by international human rights law.
2. Legal Rights are sometimes called civil rights or statutory rights. (Civil
Right: Law made by state authority.)
3. Human rights which are endorsed by the law passed by parliament are called
legal rights.
THEORIES OF LEGAL RIGHTS
1. WILL THEORY Right emerges from the human will. Therefore, law has to
grant the individual the means of self-expression or self-assertion as its
objectives. According to Austin and Holland, Will is the main element of a
right. Pollock and Vinogradoff also defined right in terms of will. Human
will creates the rights; some of the rights are recognized and accepted by the
state as the legal rights of the people. Such rights can be legally enforceable.
Some of them may not be recognized by the states and such rights are only
considered as moral rights which cannot be legally enforceable. However,
human beings may exercise such rights as moral rights only. This theory is
related with the objective of the law. Locke believes that right of the human
being is inalienable (not transferable), state has no authority to infringe
(violate) such rights. According to him the basis of the right is the will of the
individual. Holmes defines legal right as nothing but a permission to
exercise such a natural powers and upon certain conditions to obtain
protection, restitution or compensation by the aid of the public force. Hence,
right refers to the power of self-expression or will of the human being.
Puchta defines legal rights as a power over an object, which by means of
this right be subjected to will of the person enjoying the right.
Leon Duguit, the propounder of the concept of social solidarity, did not
accept the concept of will theory. He emphasizes on the duty of people, not
on their rights. He opposed this theory along with other jurists on the ground
that in cases of children or unsound people, there is no will but their rights
do.
 2. INTEREST THEORY According to Ihering, propounder of the Interest
Theory of right, legal right is a legally protected interest. Therefore the basis
of right, according to him, is interest not will. Ihering was of the view that
law always has a purpose/end. In case of rights, the purpose of law is to
protect certain interests and not the will or the assertions of individuals.
These interests exist in the life of the community itself but not created by the
state. Some of the existing interests will only be chosen by the state and will
be protected by the state. Therefore state is not a creator of rights but it is a
protector of the interests of the people as their rights. C.K. Allen is of the
view that legal right is such a power by which interest can be fulfilled.
Roscoe Pound also.
According to Duguit, will is not an essential element in law or right. The
real basis of law is social solidarity. The emphasis on will is anti-social as it
shows that man is in conflict with his fellow beings. Duguit rejects
altogether the conception of legal rights. Right is a protection afforded by
the state. G.W. Paton supports this theory.
John Austin is one of the opposers of this theory.
ELEMENTS/CHARACTERISTICS OF LEGAL RIGHTS
According to Salmond, legal right has following elements:
1. The first essential element is that there must be a person who is the owner
of the right. He is the subject of the legal right. He is sometimes
described as the person of inherence or a person entitled. The owner of a
right need not be a determinate or any fixed person. In the case of a
bequest (property left by will) to an unborn person, the owner of the right
is an unborn child who is an unascertained person.
2. A legal right accrues against another person or persons who are under a
corresponding duty to respect that right, such a person is called the
person of incidence or the subject of the duty. If A has the particular right
against B, A is the person of inherence and B is the person of incidence.
3. A legal right has its content or substance. It may be an act which the
subject of incidence is bound to do or it may be forbearance on his part.
4. Another essential element is the subject matter or object of the right. This
is the thing over which the right is exercised. This may also be called
subject matter of the right.
5. Another essential element of legal right is the title to the right. Facts must
show how the right vested in the owner of the right. That may be by
purchase, gift etc.
KINDS OF RIGHTS
1. Moral Rights
2. Legal Rights
3. Constitutional Rights
4. Fundamental Rights
CLASSIFICATION OF LEGAL RIGHTS
1. Public and Private Rights
A public right is possessed by every member of public. When one of
person connected with the rights and the state and other is a private
person, the right is called a public right. A private right is concerned only
with individuals. Both the parties concerned with this right are private
persons. Private rights are of an infinite varieties and are enjoyed by
individual.

2. 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. Right which corresponds
to a negative duty and is a right that the person bound shall restrain from
some act which would operate to the prejudice of the person entitled.

3. Rights in rem and Rights in personam

Right in rem is available against the whole world but a right in personam
is available against a particular individual only. A right in rem is
available against persons generally. For example, right of ownership.
This right is protected by law against all who interfere it. A right in
personam corresponds to a duty imposed upon determinate persons.
Rights under a contract are rights in personam. The right of a creditor
against a debtor is a right in personam.

4. Perfect and Imperfect Rights

According to Salmond, perfect right is one which corresponds to a
perfect duty. A perfect duty is one which is not only recognized but also
enforced by law. For example, claims barred by the lapse of time, claims
which cannot be enforced on account of the absence of some special form
of legal proof. When the things which we have a right to possess or the
actions we have right to do, are or may be fixed or determinate, the right
is a perfect one.

5. Legal and Equitable Rights

 The legal rights are those where the party has the legal title to a thing his
remedy for a infringement of it is by an action in a court of law.
Equitable rights are those which may be enforced in a court of equity or
chancery. In UK, legal rights are those which were recognized by the
court of common law and the equitable rights are those which were
recognized solely in the court of chancery. Although all rights whether
legal or equitable now obtained legal recognition in all courts. This type
of divisions of rights does not exist in Nepal since Nepal never had dual
jurisdiction of court.

6. Principal and Accessory Rights

Rights relating to ownership, possession, title on the land or building are
principal rights. The right of way on others’ land is the accessory right
which is also known as the right of easement. Right of rent also is the
accessory right.

7. Proprietary and Personal Rights

The proprietary rights of a person include estate, his assets and his
property in many forms. Proprietary rights have some economic or
monetary value. Examples of proprietary rights are the right to debt, the
right to goodwill, the right to patent, etc. Proprietary rights are valuable
but personal rights are not valuable. Proprietary rights possess not merely
judicial but also economic importance. Personal Rights possess merely
judicial importance. Proprietary rights can be transferred to others
whereas personal rights cannot be transferable to anyone. The power of
making a will or a contract is a personal right. A liability to be sued for a
debt is proprietary but a liability to be prosecuted for a crime is personal.
Personal rights are merely elements of well-being of a person which is
concerned with the status of a person.

8. Vested and Contingent Rights

A vested right is a right in respect of which all events necessary to be
vested completely in the owner have happened. No other condition
remains to be satisfied. In the case of a contingent right, only some of the
events necessary to vest the right in the contingent owner have happened.
According to G.W. Paton, when all the investitive facts which are
necessary to create the rights have occurred, the right is vested. When
part of the investitive facts have occurred, the right is contingent until the
happening of all the facts on which the title depends.

9. Primary and Remedial Rights

 Primary rights are also called antecedent, sanctioned or enjoyment rights.
Secondary rights are called sanctioning, restitutory or remedial right.
Examples of primary rights are right of reputation, the right of the owner,
etc. The primary rights can be right in rem. Sanctioning right may arise
from violation of primary rights which may also be known as remedial
rights.

10.Right in re-propria and Right in re-aliena

According to Salmond, Right in re-aliena or encumbrance is one which
limits or derogates from some more general rights belonging to some
other persons in respect of the same subject matter. All other rights are
Right in re-propria. In other words, Jura in re-aliena or encumbrance
includes servitudes and security interests. Right in re-propria is the right
of enjoyment i.e. the right to use the property in any legal manner which
is incident to full ownership of the property. Lease, Servitude, Security,
and Trust are the four categories of encumbrance.

11.Real and Personal Rights

A real right corresponds to a duty imposed upon person in general. A
personal right corresponds to a duty imposed upon determinate
individuals. A real right is available against the whole world. A personal
right is available only against a particular person. Real right against
everyone not to be deprived of liberty or reputation. Right to receive
compensation from any individual is personal right. Right to use and
occupy the house is real right and right to get accommodation in some
hotel is personal right.
CONCEPT OF DUTY
DEFINITIONS FROM JURISTS
1. SALMOND A duty is an obligatory act, that is to say, it is an act opposite of
which could be a wrong. Duties and wrongs are correlatives. The
performance of a duty is the avoidance of wrong. It can be said that duty is
a curtailment of liberty.
2. KEETON A duty is an act or forbearance compelled by the state in respect
of a right vested in another and the breach of which is a wrong.
3. BENTHAM Duties are the obligations, charges, onerous to him who ought
to fulfill them. Law to some extent, can trench upon liberty by creating
duties and obligations to people if necessary to do so. Such retrenchments
of liberty are inevitable. It is impossible to create a right, to impose
 obligations to protect the person, life, reputation, property, liberty itself
except at the expense of liberty.
4. HOLLAND Every right implies the active or passive furtherance by others
of the wishes of the party having the right. The furtherance on the part of
the others is called a duty. The breach of an absolute duty is generally a
crime and the remedy is the punishment of the offender and not the
payment of any compensation to the injured party. The breach of a relative
duty is called a civil injury and its remedy is compensation or restitution to
the injured party.
CLASSIFICATION OF DUTIES
1. Legal and Moral Duties: A legal duty is an act, the opposite of which is a
legal wrong. It is an act recognized as a duty by law and treated as such for
the administration of justice. A moral or natural duty is an act, the opposite
of which is a moral or natural wrong. A duty may be moral but not legal or
legal but not moral or both at once. A moral duty is that which is demanded
by the public opinion of the society and a legal duty is that which is
enforced by the power of the state.

2. Positive and Negative Duties: When the law obliges us to do an act, the
duty is called positive. When the law obliges us to forbear from doing an
act, the duty is negative. Further positive duty implies some acts on the
part of the person on whom it is imposed. If a person owes another's
money, he has the duty to repay. This is positive duty. A negative duty
implies forbearance on the part of the person on whom it is imposed. If a
person has the ownership on a land, another has the duty not to interfere
or using land by the owner. This is negative duty.

3. Primary and Secondary Duties: A primary duty is that duty which exists
itself independent of any other duty. A secondary duty is that duty whose
purpose is only to enforce some other duty. If A causes injury to B, A is
under a duty to pay damages to B. This is the secondary duty. The duty not
to cause injury is the primary duty. To pay damages so arises is secondary
duty. Thus a secondary duty has to independent existence but exists for the
enforcement of other duties.

RELATIONSHIP BETWEEN RIGHTS AND DUTIES

A person has a right if he can exact from another acts or forbearances. According
to Austin, a party has a right when another or others are bound or obliged by the
law to do or forbear towards or in respect of him.
Mill pointed out that, "A prisoner may be said to have a right to be imprisoned
because the jailor is bound by law to imprison him. To be imprisoned is no right. It
is only a disability imposed by the sanction of law.

It is debatable question whether rights and duties are necessarily correlative. The
view of Salmond is that, "Rights and Duties are correlative. If there are duties
towards the public, there are rights as well. There can be no duty unless there is
some person to whom that duty is due. Every right or duty involves a bond of
obligation. Generally, it is accepted that rights and duties are correlative.”

It is said that every right has a corresponding duty. Therefore there can be no
duty unless there is someone to whom it is due. There can be no right without a
corresponding duty or a duty without a corresponding right, just as there cannot
be husband without wife or a father without a child. Every duty is a duty towards
some person or persons in whom a corresponding right is vested. Likewise, every
right is a right against some person or persons upon whom a correlative duty is
imposed. There can be no duty unless there is someone to whom it is due.
Likewise, there can be no right unless there is someone from whom it is claimed.

Bentham says that, "Rights and Duties or Obligations, though distinct and
opposite in their nature, are simultaneous in their origin and separable in their
existence. In the nature of things, the law cannot grant a benefit to one without
imposing, at the same time, some burden upon another or in other words, it is
not possible to create a right in favor of one, except by creating a corresponding
obligation imposed upon another.

Austin divided duty into two parts:

1. Relative duty in which rights and duties are correlative.
2. Absolute duty in which rights and duties are not correlative and it is further
divided into four parts:
a) Self-regarding duty (e.g. Not to commit suicide)
b) Duty relating to uncertain or common people (e.g. Not to do nuisance)
c) Duty relating to others (e.g. Duty towards God or animals)
d) Duty relating to Sovereign or the State (e.g. Not to disturb peace)

G.W. Paton's view was that, "We cannot have a right without a corresponding
duty or duty without a corresponding right. When we speak of a right, we really
refer to a right-duty relationship between two persons. And to suppose that a
relationship can exist between the father and son unless both father and son have
existed."
To describe a right to one person is to imply some other person is under a
corresponding duty. Rights are concerned with interests and indeed have been
defined as interests protected by rules of rights. Rights and interests are not
identical.

The administration of justice, in most part, consists of the enforcement of rights

and the fulfillment of duties. Rights and Duties are correlated to each other in
such a way that one cannot be conceived of without the other. The existence of
the one depends on the existence of the other. A right is always against someone
upon whom the correlative duty is imposed.

Every duty must be a duty towards some person or persons, in whom a

correlative right is vested. And conversely, every right must be a right against
some person or persons, upon whom, therefore a correlative duty is imposed.
Every right or duty involves a vinculum (horizontal) juries or bond of legal
obligation by which two or more persons are bound together.

American jurist Hohfeld developed scheme as follows;

1. Jural Correlative: Right-Duty, Power-Liability, Liberty-No right, Immunity-
Disability
2. Jural Oppositions: Right-No right, Privilege-Duty, Power-Disability. Immunity-
Liability

THREE ASPECTS

1. Rights and Duties are correlative. (Paton, Salmond, Keeton, Pollock)

2. Rights and Duties aren't always correlative (John Austin)
3. Rights and Duties have more to their relationship than just them. (Hohfeld)

ROLE OF THE COURT

1. Protection of fundamental rights or other legal rights

2. Filing of Public Interest Litigation
3. Mainly in Common Legal System where precedents are given utmost
importance