RIGHTS AND DUTIES

INTRODUCTION

• The development of society is

• John Austin – According to Austin, “A party has a right when another or others are bound
or obliged by law to do or forbear towards or in regard of him”. This definition was not
widely accepted. It was stated by John Stuart Mill that the act referred by Austin should be
in the interest of the person who can be said to have the right. He illustrated with an
example by stating that when a prisoner is sentenced to death,the jailer is bound to
execute him. Does this mean that the convict has the right to be hanged?
• Rudolf Von Jhering – Jhering defined rights as “legally protected interests”. The law does
not protect all such interests. The interests of men conflict with one another and the law, is
the rule of justice and protects only certain interests.
• Holland – Legal rights were defined by Holland as the “capacity residing in one man of
controlling, with the assent and assistance of the state the actions of others.” He followed
Austin’s definition
• John Salmond – Salmond defines right as an interest recognised and protected by a
rule or justice. He says, for an interest to be regarded as a legal right, it should obtain
not merely legal protection but also recognition. The law protects cruelty against
animals, and to some interest the interest of animals, but animals do not possess any
legal rights. 
• Gray – He defined a legal right as “that power which a man has to make a person or
persons do or refrain from doing a certain act or certain acts, so far as the power arises
from society imposing a legal duty upon a person or persons.” He states that the “right
is not the interest itself, it is the means to enjoy the interest secured.”
• Supreme Court of India – The Apex Court of India defined legal right in the case
of State of Rajasthan v. Union of India [AIR (1977) SC 1361] as: “In strict sense, legal
rights are correlatives of legal duties and are defined as interests whom the law
protects by imposing corresponding duties on others. 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.”
 THEORIES OF LEGAL RIGHTS
• The Will Theory of Legal Rights – 
• The Will Theory states that right is an inherent attribute of the human
will. It says that the purpose of the law is to allow the free expression
of human will. This theory was advocated by scholars like Hegel, Kant,
Hume and so on. The subject matter is derived from human will.
Austin, Holland and Pollock define rights in terms of will. According to
the famed French Jurist, John Locke “the basis of the right is the will
of the individual.” Puchta defined the legal right a power over an
object which by means of right can be subjected to the will of the
person enjoying the right. This theory has been widely accepted by
the jurists in Germany. 
• Despite its wide acceptance, there were many scholars who disagreed
with it. Some of the criticisms were from Duguit who is opposed to
the “will” theory. According to him the basis of law is the objective
fact of “social solidarity” and not the subjective will. The law is to
protect only those acts or rights which further “social solidarity”. He
calls the theory of subjective right a a mere metaphysical abstraction.
 THE INTEREST THEORY OF LEGAL
RIGHTS 
• The Interest Theory was proposed by the German Jurist, Rudolf von
Jhering. Jhering defined rights as legally protected interest. Jhering
does’ not emphasize 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
conflict between their individual interest. These interests are not
created by the state, but they exist in
• the life of the community itself. Salmond supported it but mentioned
that enforceability is also an essential element. He says, “Rights are
concerned with interest, and indeed have been defined as interests
protected by rules of right, that is by moral or legal rights.”
• Salmond has criticized Jhering’s theory on the ground that it is
incomplete since it completely overlooks the element of recognition
by the state. A legal right should not only be protected by the state
but should also be legally recognized by it. 
 ELEMENTS OF A LEGAL RIGHT-
SALMOND
The Person of Inherence – It is also known as the subject of right. A legal right is always vested in a person who may be distinguished, as the owner of the right,
the subject of it or the”person of inherence”. Thus, there cannot be a legal right without a subject or a person who owns it. The subject means the person in
whom the right is vested or the holder of the right. There can be no right without a subject. A right without a subject or a person who owns it is inconceivable.
The owner of the right, however, need not be certain or determinate. A right can be owned by the society, at large, is indeterminate. 

The Person of Incidence – A legal right operates against a person who is under the obligation to obey or respect that right. He is the “person of incidence”. He is
a person bound by the duty or the subject of the duty. 

Contents of the Right – The act or omission which is obligatory on the person bound in favour of the person entitled. This is called the context or substance of
right. It obliges a person to act or forbear in favour of the person who is entitled to the right. It may also be known as the substance of the right

Subject matter of Right – It is something to which the act or omission relates, that is the thing over which a right is exercised. This may be called the object or
subject-matter of the right. Some writers, although argue that there are certain rights which have no objects. 

Title of the Right – Salmond has given the fifth element also, that is, “title”. He says that “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”.
HENCE, IT
CAN BE It is a right against some person or
persons.
OBSERVED
EVERY RIGHT
INVOLVES A It is a right to some act or
THREE-FOLD omission of such person or
persons.
RELATION, IN
WHICH IT
STANDS It is a right over to something to
which that act or omission relates
KINDS OF LEGAL RIGHTS 
• Primary and Secondary Rights
• Public and Private Rights
• Positive and Negative Rights
• Vested and Contingent Rights 
• Perfect and Imperfect Rights
• Principal and Accessory Rights
• Legal and Equitable Rights
• Proprietary and Personal Rights
• Rights in Rem and Rights in Personam 
• Rights in re Propria and Rights in re Aliena
• Primary and Secondary Rights – 
• Primary Rights are also called antecedent rights. It is vested within a person by law or any other legal
manner. These are the bundles of those rights which are the privileges enjoyed by any person e.g. a
person’s rights to Liberty. 
• A violation or breach of the primary rights, on the other hand, gives rise to a sanctioning right or
remedial right. These are also known as secondary rights. It is also called the remedial or adjectival
rights. It is called so as it is a mode of legal enforcement, for the loss of the primary right. It is
subdivided into two kinds – 1. Right to exact and receive a pecuniary penalty from the defendant for
loss of right and 2. Right to exact and receive damage for the injury caused to the defendant. It can be
said that primary rights exists independently whereas secondary rights have no separate existence
and arise only on violation of primary rights. 
• Public and Private Rights
• Legal rights can be considered as both public and private. Public rights are those vested with the
state. The state enforces such right as a representative of the subjects in public interest. A public right
is possessed by every member of the public. For example, a right that is concerned with the
Government may be termed as a public right such as the right to vote. A private right, on the other
hand, is concerned with individuals, that is both the parties connected with it are private persons. For
example, owning a vehicle is a private right.
• Positive and Negative Rights
• A right is considered as positive or negative depending upon its correlative duty. A positive right exists when the owner
of it is entitled to something to be done by the person of incidence. A person possessing a positive right can compel the
person with the duty to perform a positive act. For instance, a right to receive a compensation is a positive right. A
negative right corresponds to a negative duty and is a right that the person bound shall refrain from some act which
would operate to the prejudice of the entitled; in other words, a negative right, corresponds a negative duty. It is a right
of the person and the person bound shall restrain from doing some act which will be prejudicial to the person entitled,
such as when a person owns a land, it is the duty of others to not trespass. 
• Every person is entitled to negative rights, but only a few get positive rights. The number of negative rights is larger
than the positive rights. The difference between these rights is illustrated below – 
• A positive right corresponds to a positive duty whereas a negative right corresponds to a negative duty.
• A positive right involves a positive act while a negative right involves some kind of forbearance or not doing.
• 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.
• A positive right requires an active involvement of others but a negative right requires only positive 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.
• A positive right has a mediate and indirect relation to the object while a negative right is immediately related to the object.
• Vested and Contingent Rights
• A vested right is a right in respect of which all events essential to vest the right in the owner
have happened; while a contingent right is one in respect of which only some of the events
necessary to vest the right have happened and the vesting can be complete only on the
happening or non-happening of a specified uncertain event. A vested right is not dependent
upon the fulfillment of any condition and a right becomes contingent only on the fulfillment
of any condition that may either be subsequent or precedent. Vested rights are transferable
and inheritable, this is not possible in contingent rights. 
• Perfect and Imperfect Rights –
• A perfect right is one which corresponds to a perfect duty and a perfect duty is one which is
not only recognized by the law but is enforced also. Perfect right means the complete right,
which signifies the right for which there is remedy also. This is explained by the latin
maxim “ubi jus ibi remedium” which means, where there is a right, there is a remedy. When
in case of the breach the right is not enforceable in a court of law then it is known as
imperfect right. This was stated in the case of Allen v. Waters & Co. [(1935) 1 KB 200]. The
Directive Principles of the State Policy that is present in the Indian Constitution is an example
of imperfect rights. 
• Principal and Accessory Rights
• A principal right is a primary right of a person vested in him by the law of the land, or
through any other legal method. An accessory right is a right which is connected with
the principal right. Principal rights exist independently while accessory rights are
dependent upon principal rights. They are beneficial on the principal right. 
• Legal and Equitable Rights 
• These type of legal rights cannot be found in India. It is found only in England. Legal
rights are those which were recognized by the Courts of Common Law in England and
Equitable rights are those which were solely recognized in the Court of Chancery. The
underlying principle in regards to equitable rights is that when there are two
inconsistent equitable rights claimed by different persons over the same thing, the
first in time shall prevail. Although, where there is a conflict between a legal right and
an equitable right, the legal right shall take precedence over equitable right even if it
is subsequent to the equitable right in origin. The Privy Council in Chatra Kumari Devi
v. Mohan Bikram [(1931) 58 I.A 279] observed that the Indian law does not
recognized legal and equitable estates.
• Proprietary and Personal Rights
• Proprietary Rights are rights that are related to a person’s property whilst
personal rights relate to one’s body. Proprietary rights are transferable and
personal rights are not. If the breach of a right can be measured in terms of
money or it has money value than it is said that the person has proprietary right
but if the breach of a right cannot be measured in money or it has no money
value that that right is known or called as personal right. A personal right is
uninheritable and dies with him. 
• Rights in Rem and Rights in Personam
• These are also called real and personal rights. The modem terms right “in rem”
and right “in personam” have been generalized, somewhat inaccurately, from
Roman sources. A right in rem means a right available against the whole world
whereas a right in personam is a right that is available only against specific
number of people
• Rights in re Propria and Rights in re Aliena
• Rights in re Propria and Rights in re Aliena are a classification of
proprietary rights. Right in re Propria is the right in his own thing
and if he has a right in the property belonging to another than he
is said to have a right in re Aliena. A right in re-Aliena ‘or
encumbrance”’ has been defined by Salmond as one
• which limits or derogates from some more general right belonging to
some other person in respect of the same subject-matter. Salmond
refers to four classes of encumbrances, namely, i) Leases; ii) Servitudes;
iii) Securities & iv) Trusts
 DUTY
• A duty is an obligatory act. It is something to do or abstain from doing in favour of another person. A
man has a duty towards any matter that he is legally obligated to. The term legal duty has been defined
in the following ways – 
• Keaton – A duty is an act of forbearance which is enforced by the state in respect of a right vested in
another and breach of which is a wrong.
• Salmond – A duty is roughly speaking an act which one ought to do, an act the opposite of which would
be a wrong.
• A duty is of two kinds – 1.  Moral and 2.  Legal 
• Moral – An act that is 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. For example, the act of not wasting paper is our moral duty
but not legal. 
• Legal – 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. The law enforced the performance of a legal duty, and
punishes the disregard of its performance.
 CLASSIFICATION OF DUTIES
• Primary and Secondary Duties – 
• A primary duty is one which exists “per se” and is independent of any other duty. A secondary duty, on the other hand, is one which
has no independent existence of other duties. A secondary duty is also called sanctioning or a remedial duty.
• Positive and Negative Duties
• Duties may also be distinguished into positive and negative duties. Duties that are to be performed by us at the behest of the law is
known as a positive duty whilst an act that is prohibited from being performed under the law is a negative duty.
• Absolute and Relative Duties
• In the words of Austin, rights and duties are interdependent. He has classified duties into absolute and relative. Relative duties are
those for which there is a corresponding right and absolute duties are those that do not have any corresponding rights. He mentions
four kinds of absolute duties:-
• Self-regarding duties such as a duty not to commit suicide or not to consume drugs or liquor, etc. 
• Duties towards indeterminate persons or public at large, e.g. a duty not to commit a nuisance.
• Duties to those who are not human beings such as duty towards God or animals, birds, etc.
• A duty towards the sovereign or the state.
 HOHFELD’S ANALYSIS OF LEGAL RIGHTS

The vertical arrows couple jural correlatives, two legal positions that entail each other,
whereas the diagonal arrows couple jural opposites, two legal positions that deny each
other. The Horizontal arrows connect the jural opposites or contradictionries