2015

Jurisprudence

RIGHTS, MEANING AND NATURE

TO: MR. HAKIM YASIR ABBAS

SHUJA HAIDER RIZVI

V SEMESTER
ACKNOWLEDGEMENT

I have made my project for Jurisprudence on RIGHTS, MEANING AND

NATURE I would, therefore, express my gratitude to our Jurisprudence teacher,
Mr. Hakim Yasir Abbas, without whose support and guidance, the completion of
this project was not possible. It is my pious duty to express my deep obligation
towards my reputed teacher for her kindness and many sided benevolence.

I should not forget to appreciate to the administrative staff and library staff of the
Faculty of Law, Jamia Millia Islamia for their untired cooperation to complete this
project.
Table of Contents

1) Introduction
2) Meaning of Right
3) Definition of Right
4) Difference between Legal and Moral right
5) Components of a Legal Right
6) Elements of Legal Right
7) Kinds of Legal Rights
8) References
9) Conclusion
INTRODUCTION

After Renaissance and Reformation in Europe during the hey days of the classical natural law

period and in the post-second World War era there has been a movement at the national and

international level for respect to the individual freedom and his dignity against the arbitrary acts

of political society or state itself. In fact the freedoms or liberties which individuals enjoy in the

state are considered the hallmark of its great political maturity and a symbol of its truly

democratic character. For man like Robinson Crusoe wants to live in the company of others like

himself. Man is thus prompt to form groups, society or state for the adequate development of his

personality. Aristotle observed man is a social animal and Plato declared man by nature of

political animal and in the sixteenth and eighteenth centuries Hobbes, Locke and Rousseau

propounded the theory of social contract to stress the sanctity of individuals rights and

individual freedoms within a given political framework. In the nineteenth century Kant, Mills,

Spencer and Drawin laid over emphasizes on the rights of the individual and is resulted in social

conflicts and upheavals. While an attempt is being made to reduce the tyranny of the duties in

many countries of Europe and Asia. However, the Universal Declaration on Human Rights

comes as an antidote to the theory which relies too much on the duties of the individuals. Thus it

becomes clear that the value of the right arise and exist only in a politically organized society by

which law regulates and guarantees certain rights to the individuals within the social order

established by law for without law and society rights are non-existent and meaningless. It would

be useful, therefore, to define the concept of right both in moral and legal sense. But before

that, we need to understand what we mean by right.

 Meaning of Right

Right, in the ordinary sense of the term, means a number of things, generally taken to
mean the standard of permitted action within a certain sphere.1 It also means which is
straight and not crooked in opposition to wrong which is twisted from the straight. In ethics
the right means that which is in conformity with morality and so is morally good. The word
right is equivalent to the Latin rectus from which we derive such words as rectify,
rectitude and correct. Right is also used as equivalent of the Latin term jus from which we
derive such words as just, justify, etc. In this sense right means that in which a just: a just
law, a just deed. In other words right indicates existence of some capacity power or
freedom in an individual to hold, act and exact something in society with its power and
permission by which others are refrained from acting contrary of to the detriment of such
individual. Rights may be defined as a moral powers over what is ones own. The
foundation2 of such rights is dependent on the general principles and values which inhere in a
particular society.

Definition of Right

1. Austin

According to Austin, right is a faculty which resides in a determinate party or parties by

virtue of a given law and which avails against a party or parties (or answer to a duty lying
on a party or parties) other than a party or parties in whom it resides3. According to him
a person can be said to have a right only when another or others are bound or obliged by
law to do something or forbear in regard to him. It means right has always a

1
Shorter Oxford English Dictionary.
2
See President Citizen for Democracy v State of Assam, AIR 1996 SC 2095 ; Gian Kaur v. State of Punjab, AIR 1996
SC 1257 ; All India Statutory Corp. v. United Labor Union AIR 1997 SC 568 ; D.K. Basu v. State of West Bangal, AIR
1997 SC 610.
3
Austin: The Province of Jurisprudence Determined by John Austin, Wilfrid E. Rumble, p. 236.
 corresponding duty.4 This definition is imperfect because in this definition there is no
place for imperfect rights.

2. Gray and Holland

Prof. Grey points out that the right id not an interest in itself, it is the means by which
the enjoyment of interest is secured5. If it is my interest to receive a hundred rupees
from X and if by the law X is bound to pay me, I have a legally protected interest and I
have a right. The legal right, however, is not the payment of money. It consists in my
power to get money from X. Gray, therefore, defines a legal right as that power which a
man has to make a person or persons do or refrain from doing certain act or acts, so far as
the power arises from society imposing a legal duty upon a person or persons.
Holland also lays emphasis upon the power referred to by
Gray. He defines a legal right as a capacity residing in one man of controlling with the
assent and assistance of the State the actions of others6.

3. Salmond

Salmond defines right from a different angle. He says, A right is a interest recognized
and protected by rule of right. It is an interest, respect for which is a duty, and disregard
of which is a wrong.7 The main element in this definition are two: First, a rule of right
means rule of law, or, in other words, that which is judiciary enforceable. Thus,
according to Salmond, a right must be judiciary enforceable.
Second, a right is an interest. The element of interest is
essential to constitute a right. So far as Salmonds first element is concerned, it is a

4
Lectures on Jurisprudence, Or, The Philosophy of Positive Law by John Austin (1875), p. 193
5
Nature and Source of the Law by John Chipman Gray published by The Colombia University Press, 1909, p.18.
6
Element of Jurisprudence by Thomas Erskine Holland, twelfth edition published by Oxford University Press, 1916,
p. 79.
7
Jurisprudence by John W. Salmond, fourth edition published by Stevens and Haynes, 1913, p.278.
 corollary to the definition of law.

4. Duguit and Kelson

There are certain other jurists who do not recognize the existence of any legal right.
According to them, there is no such concept as legal right. Prof. Duguit says that no
one has any other than right than always to do his duty. Prof. Kelsen also says that there
is no such conception as right in law. The theory of law of these jurists negative the idea
of rights.

5. Jhering

In the Sprit of Roman Law Jhering defines rights as legally protected interests8. The
protection of human interests is a chief purpose of social organization. The law, however,
does not protect all such interests. The interests of men conflict with one another and law,
being the rule of justice, appraises such interests and selects only some for protection.
Jhering regards as legal rights such of those interests as have obtained legal protection. In
Law as a means to an end Jhering points out that one can be said to have a right only
when there exists for one some advantage which is protected by the State. That which
exists for one may be ones self and the protection of it by State give rise to the right of
personality. It may be a thing bearing a certain relation to ones purposes, the protection
of interest which give rise to the right of ownership. In every case the existence of the
legal right is dependent upon the circumstances that some human interest has secured the
protection of the State.

8
Nature and Sources of Law by John Chipman Gray, London: Forgotten Books, (Original work published 1921), p.
18-19.
 6. Supreme Court of India

The Supreme Court of India has in State of Rajasthan v. Union of India9, observed: In a
strict sense rights are correlative of legal duties and are defined as interests which 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. Immunity, in short, is no-subjection.

Difference between Legal and Moral right

A legal right is an interest recognized and protected by rule of legal justice- an interest
the violation of which would be a legal wrong, done to him whose interest it is, and
respect for which is a legal duty. According to Dean Pound10 as a noun the word right in
a legal sense have five analogous meanings (1) One meaning is interest which is secured
and protected by law (2) A second meaning is a recognized claim to act or forbearance by
another or by all in order to make interest effective. (3) A third use is to designate a
capacity of creating, divesting or altering rights. Here the proper term of right would be
power. (4) A fourth use is to designate certain conditions or general special non-
interference with the natural faculties of action. They are better called liberties and
privileges and (5) in the final sense right is used as an adjective to mean that which
accords with justice that which recognizes and gives effect to moral rights. Moral or
Natural Right means an interest recognized and protected by rule of natural justice- an
interest violation of which would be a moral wrong, and respect for which is a moral
duty.11 The difference between two lies in the sanctions behind them. The violation of
legal right is redressed by state whereas behind the moral rights there are only moral or
social rebuke or disapprobation. A man may have a legal right to do something which
may be against morals. But it does not mean that the legal rights are always opposed to
morals. The ethical or moral views of a society influence the law in determining the

9
AIR 1977 S.C 1361
10
The Ideal Element in Law by Roscoe Pound published by Liberty Fund, 1958.
11
Jurisprudence by John W. Salmond, fourth edition published by Stevens and Haynes in 1913, p.315.
 conduct it will protect and all the actions it will prohibit. Therefore in most cases, moral
rights and legal rights coincide and they clash only in rare cases. Many jurists
(Positivists) are opposed to the idea of natural rights and they do not regard it as more
than a fiction or a metaphor.
In India, the Madras High Court devoted some time in analyzing the
concept of legal right in Danial v. State.12 In this case an American national Danial H.
Walcott had obtained a British passport under false name and entered India without a
valid passport contravening the rules. The Court convicted Danial Walcott for having
impersonated another person fraudulently to gain entry in India. While coming to the
conclusion that passport creates a valuable legal right and is a valuable security the Court
made some relevant observation on the concept of legal right. It observed
The expression legal right used in the definition of valuable security is
not defined and is difficult concept. From the statement of eminent jurists about
the concept of legal right the following principles can be deduced broadly to
understand what a legal right is (1) Legal right in a strict sense is one which is an
ascertainable claim, enforceable before Courts and administrative agencies; (2) In
its wider sense a legal right has to be understood as any advantage or benefit
conferred upon a person by rule of law; (3) There are legal rights, recognized by
law; (4) There are rights recognized by International Court granted by
International Law; but not enforceable and (5) A legal right is a capacity of
asserting a secured interest rather than a claim that could be asserted in the courts.

Components of a Legal Right

A legal right involves a series of relations on which they are grounded. In the example of
a workman having a right to his wages, we may separate four elements or components: the
workman who has earned the wages; the employer who is bound to pay the wages; the wages
of the workman and the work done where by workman has earned the wages. In general in

12
AIR 1968 Mad. 355
 every right we distinguish the following emerges.

o Subject
A person whom the right resides, the person of inherence, or the person
entitled to the right. A right without a subject or a person who owns it is
inconceivable. The owner of the right, however, need not to certain or determinate.
The subject of the right is uncertain, when, for instance, the owner is a person unborn.
It is indeterminate when a right is owned, for instance, by the society at large.13

o Object
A person against whom the right avails and may be distinguished as the person
of incidence. He is the person bound by the duty and so may be described also as
subject of the duty.

o Matter
It is that to which one has a right. It is the thing or res or matter. However,
human being can never be a res. Once upon a time when slavery was in vogue slave
was considered a thing and could be deposed of by the slave owner. Since the slavery
has been abolished no person can be the matter or res. The res can be tangible like
land, money and other material objects, and intangible like goodwill, copyright and
right to good name or reputation.14
Prof. Holland seems to consider that some right have no
objects. Illustration-
B is As servant. Here A is the person of inherence. B is the
person of incidence, reasonable service is the act to which A is entitled. The object
of the right is wanting15 Holland is forced to the conclusion that in the illustration
given by him there is no object of the right because he considers that the object of a

13
Jurisprudence & Legal Theory by Prof. G.C Venkata Subbarao republished by Eastern Book Company, 2008 and
coined by Sir Thomas Holland in Elements of Jurisprudence, 1916, p. 101.
14
Ibid p.231.
15
Element of Jurisprudence by Thomas Erskine Holland, twelfth edition published by Oxford University Press, 1916,
p. 88.
 right should be some material thing.
Salmond observes that it is not necessary to define the object of a right with such
narrowness and that the object of a right is as essential an element in the idea of
right as the subject of the right itself. In the Illustration given by the Holland the
object of the right is the skill, knowledge, strength, time and so forth of the person
bound by the duty16.

o Act
It is the contentment of the right, the act or forbearance which the person in
whom the right resides can exact. It can be understood as some positive or negative
act necessary for the fulfillment of the right. In case of the employer the act of paying
the wages to the workmen. The employer is to do an act which is related to the res17.

o Title
According to Salmond, every legal right has a title, that is to say, certain facts or
events by reason of which the right has become vested in the owner.18 The purpose
of providing a title is to establish a connection between the subject and the matter of
the right. For example, a man has a right to own property in general, but this is an
abstract right not specifying any particular piece of property. Something is necessary
to give this particular man rather than someone else the right of this particular piece
of property, to change the abstract into a concrete right. The contract of sale does this
and this fact of his title.

Let us consider some examples where we can understand all the above mentioned
elements of a legal right.
Suppose a testator leaves a gold right to a legatee. The legatee becomes
the subject or the owner of the right; the gold ring is the object of the right; the
delivery of the ring is the content of the right; the executor is the person of

16
Jurisprudence by John W. Salmond, fourth edition published by Stevens and Haynes in 1913, p. 245.
17
Jurisprudence and Indian Legal History by Prof. S.N Dhyani, p. 231.
18
Jurisprudence by John W. Salmond, fourth edition published by Stevens and Haynes in 1913, p. 246.
 incidence and the will bequeathing the ring is the title of the right.
or
Suppose A buys a piece of land form B, A is the subject or owner of the
right so acquired. The persons bound by the correlative right are persons
in general, for a right of this kind avails against all the world. The content
of the right consists in non-interference with the purchasers exclusive use
of land. The object or subject-matter of the right is the land. And finally
the title of the right is the conveyance by which it was acquired from its
former owner19.

It is usually said that the term Person, Thing and Act are inseparably connected with
term Right. Every right involves a threefold relation in which the owner of it stands. It is, first,
a right against some person. Secondly, it is a right to some act or forbearance of such person.
Thirdly, it is, a right over or to some thing to which that act or forbearance relates. Thus, these
three terms are inseparably connected with the term Right20.

Elements of Legal Right

To understand the nature of legal right it must possess three basic elements. A right is legal
because, as Paton says, it is protected or at least recognized by the legal system. The holder
of the right exercise his will in a certain way and that his will is directed to the satisfaction of
a certain interest. Hence each of these three elements- protection, will and interest is essential
for correct definition of legal right. Of course differences exist in varying degrees among
jurists because of their excessive reliance upon one or the other element. Each of these
elements are discussed below-

19
B.N Mani Tripathi: Jurisprudence The Legal Theory by Jain Book, p. 288.
20
Prof. G.C Venkata Subbarao: Jurisprudence & Legal Theory republished by Eastern Book Company, 2008, p. 167.
 o Protection afforded by the state:

The source of all legal rights is the law rights is the law. The law creates,
recognizes and protects the right so newly created. It becomes legal because it is
guaranteed and protected by the state and its legal system. A legal right which cannot be
enforced must atleast be recognized by the law. Justice Mathew in Keshvananda
Bharati21 rightly observes right are per-se enforceable in courts unless recognized by the
positive law of a State. Legal rights therefore are those provided by the State and secured
through the instrumentalities. If it is neither recognized nor enforced by law it would
tantamount to sermon on the mount or merely a rule of ethics or morality depending for
its enforcements on the caprice of an individual. The sine quo non of a legal right is,
therefore, its vindication through law against any possible encroachment. However, there
are some exception to the rule that a legal right must be enforceable.

1. The law will not always enforce a right but may grant may grant the injured
party only a remedy. Under the Hindu Marriage Act, 1955 for instance, in
Section 9 there is a provision for the restitution of the conjugal rights where
either spouse is deprived of the conjugal company of the other. For
withdrawal or breaking of conjugal right the law grants a remedy to either
party to seek for a decree of judicial separation or decree of nullity or decree
of divorce for Hindus.

2. Sometime law creates a disability in so far as enforcements of legal right is

concerned because of the existence of rule of law that after the lapse of certain
period existing eights cannot be enforced in court of law. E.g. the statute bar
debts which cannot be enforced.

3. Sometime the legal system lacks the machinery for enforcement of certain
types of rights arising out of e.g., rights the decree or judgment of

21
(1973) 4 SCC 225, p. 268.
 International Court of Justice.

4. Sometime the legal rights although enforceable in the strict sense remain on
the paper only because of the absence of strong and responsible public opinion
for their enforcement by the court of law. For instance in India the Sharda Act
called the Child Marriage Restraint Act 1929, The Hindu Dowry Act, 1961,
are being observed more in their breach.

5. Similarly the conventions of the Constitution and the Directives under the
Indian Constitution cannot be enforced in court of law. So however useful and
important they may be in the governance of the country yet they are incapable
of being enforced in the court of law. It may be said that although
enforcement by the courts of law of legal right is necessary condition. In the
final analysis in a democracy all rights whether legal or moral depend for their
enforcements upon the good sense and enlightened and vigilant public
opinion.

o Element of Will:

Many jurists believe that the purpose of law is to grant the individual the means of
self-expression or self-assertion.22 The right to self-assertion and self-expression is a
part of individuals freedom which is inseparable of man and his individuality. Man
would be reduced to a commodity without such natural freedom and liberty.23 All
rights are supposed to be derived from the intrinsic and inviolable human will which
is essential for the development of man and his liberty against the arbitrary acts of
other individuals and State. Therefore, right emerges from the human will. The
definition of right given by Austin and Holland lay down that the will is the main
element of a right. Pollock and Vinogradoff also define right in terms of will. A
strong support to theory has been given by the doctrines of natural rights, and by the

22
B.N Mani Tripathi: Jurisprudence The Legal Theory by Jain Book, p. 285.
23
Prof. G.C Venkata Subbarao: Jurisprudence & Legal Theory republished by Eastern Book Company, 2008, p. 234.
 jurists who have made metaphysical approach to law. Locke believed in inalienable
rights. He declared that in certain spheres of individuals life, the state could not
interfere. According to him, the basis of right was the will of the individual. Holmes
in his definition of right put the same view more clearly. He defines legal right as
nothing but a permission to exercise certain natural powers and upon certain
conditions to obtain protection, restitution, or compensation by the aid of public
force. Society and State is to further and promote the expansion and development of
the human freedom. State is not the agent of all the purposes of man and each
individual is free to pursue his own goals and ends. According to this theory, there is
a perpetual conflict between the freedom of one individual and the other, the
individual and the State as a part of natural process- between the rights of the man
and the rights of the State. However in this conflict State cannot deny certain basic
natural rights of a man which are inherited in him because of his self-dignity and
individuality called in other words human will. It is the human will which makes a
person self-owned, self-possessed and self-controlled and, therefore, the master and a
best judge of his own acts in such a way that he cannot be subordinated to the interest
of another to be used and controlled by another. In this connection Kent also
expressed the autonomy of human will when he said,24 Being whose existence does
not depend on our will but on nature, if they are not rational beings, have only a
relative worth as means and are therefore called things, on the other hand, rational
beings are designated person because their nature indicates that they are ends in
themselves i.e. thing which may not be used merely as means, Kant and Rousseau
are the principal adherents of this theory that there can be no right without will and
vice-versa.

Kinds of Legal Rights

1. Rights in Rem and Rights in Personam

2. Legal and Equitable Rights

24
Foundations of Metaphysic of Morals, Section II.
 3. Proprietary and Personal Rights
4. Perfect and Imperfect Rights
5. Positive and Negative Rights
6. Principal and Accessory Rights
7. Public and Private Rights
8. Vested and Contingent Rights
9. Rights in re Propria and Rights in re Aliena
10. Antecedent and Remedial Rights

o Rights in Rem and Rights in Personam

This classification of rights in English law is derived from the Roman legal system. A
right in rem (sometime called the real right) is only which avails against the people
generally, e.g.; against everyone. According to the Austin a right in rem avails the world
at large. It is a right against or in respect of a thing, namely, to recover possession of the
thing. Such a right is available to the person of inherence against the person of incidence
so unlimited as to comprise the whole world. The right in rem may be: (i) the right to
personal safety and freedom, (ii) right to reputation, (iii) right to possession and
ownership. For instance the right to personal safety includes the right of a man not to
receive injury from any dangerous substance or animal kept by another. Anyone who
stores up a great bulk of water in reservoir or keeps an animal according to English law
he does it so at his own peril and will liable. Abduction of a child of wife from the
custody of their parents or husband is a violation of rights in rem. Likewise the right of
the master has a right over his slave or servant is a right in rem. A master has a right, as
against the world, to the services of his servant is rendered less capable but also anyone
who entices him away from the master.25 Likewise a man has a right against the world, to
his good name.26 As regards to rights to personam they are generally the personal rights
which are available against specific persons. As contrary to rights in rem which are
available against the world rights in personam are available against ascertained persons.

25
Osborne v. Gillet. LR 8 Ex. 88.
26
Jones v. Hulton and Co., 2 kb 444.
 Such contracts establish legally binding obligations between parties to the contract. It is
through contractual agreements that right in personam are created and are available
against the parties to the agreement or contract.

o Legal Rights and Equitable Rights

The distinction between legal rights and equitable rights is found in system of law in
which there exist two parallel legal system the Common Law and the Equity in which the
later came to supplement the former. Both the English legal system and the Roman legal
system recognize this distinction one system administered by the common law court and
the other by the court of equity, since there is a conflict of the jurisdiction between the
two types of the court which led to two classes of right distinguishable as legal and
equitable. According to Salmond Legal Right are those which are recognized by the
Court of Common Law, equitable rights are those which are recognized solely in the
Court of Chancery. Even after the Judicature Act of 1873 which led to the amalgamation
and fusion of the law and equity the distinction between legal and equitable right still
persists.
In Roman law the Praetor without any authority to legislate exercised a big authority
and power over all judicial process. He gave his edicts which were intended to give relief
against the rigidity of the established system, i.e., jus civile. The different Praetor in
succession gave their edites which became a body jus honorarium equal in bulk and
importance to jus civile. Thus through the equity was laid the foundation of the modern
law of Trusts, Injunctions and Mortgages etc.
In India the law does not27 recognize distinction between legal and equitable interest
and rights. In India the most of the English principles of equity have been embodied in
the statute law. For instance, the English law recognizes legal and equitable estates. With
regard to the Indian law the Privy Council said28 the Law in India speaking broadly
knows nothing of that distinction between legal and equitable property in the sense in
which it is understood in England. So in India the principle in English Law- both of

27
Bithal v. Shriram Savant, (1905) 39 Bom. p. 39.
28
Tagore v. Tagore, (1872) IA Supp. p. 46.
 common law and equity- have been embodied in the statutes irrespective of the difference
between the two systems. Thus in Indian law recognizes only the indivisible legal rights.

o Proprietary Rights and Personal Rights

The word proprietary relates to something concerning property which consists of

things, assets belonging in possession or ownership of a person. The word personal is
used in the sense which relates to his person or body, e.g. Affecting his character,
liberty and status in society. Thus the distinction between proprietary rights and personal
rights depends on the distinction between the term proprietary and personal. In India
the term is of great constitutional importance in a view of the constitutional provisions for
the protection of property. Hence the proprietary right is one which relates to mans
property whereas personal right is one which relates to his status. Holland is of a view
that the proprietary rights are extinction of power of a person over the physical world i.e
land, house, securities etc. While personal right relates to the position of an individual as
a citizen, as a free man as husband or father which help to make his status. Accordingly
Salmond says29 the fundamental distinction between proprietary and personal rights is in
the fact that the former are valuable while the latter are not. Keeton says30 this is true in a
sense because the former constitute part of a mans wealth while the latter are elements of
his well-being. It is also said the proprietary rights are those which are transferable since
they are a res. Personal right are, however, non-transferable since and inalienable. No one
can sell his status as a citizen or his position as a father or husband etc. among the
proprietary rights which alone cannot be transferred is the right to pension

o Perfect and imperfect rights

A right is considered perfect when it is enforceable through a court of law. There is a

corresponding duty for the breach of which a civil and criminal action will lie. Judgment
will be executed if necessary with the physical force of the state.

29
Jurisprudence by John W. Salmond, fourth edition published by Stevens and Haynes in 1913, p. 238
30
Elementary Principles of Jurisprudence by George W. Keeton published by Sir Isaac Pitman & Sons 1930, p. 122.
 There are certain other rights, which are not so enforceable. They are called imperfect
rights. Claims barred by lapse of time, claims unenforceable on account of some technical
defect such as insufficient stamp or non-registration, belong to the category of imperfect
rights. Lapse of time does not destroy the right, but reduces a perfect right into an imperfect
right. Though unenforceable as such, an imperfect right may serve a useful purpose in the
following situations:

a) As a ground of defense though not as a ground of action, for example right to

set-off.
b) To support any security that has been given for it. A mortgage or pledge remains
perfectly valid, although the debt secured by it has ceased to be recoverable by
action.
c) When it is converted to a perfect right. The right of action may not be non-
existent, but may be merely dormant. An informal verbal contract may become
enforceable if some written evidence of it comes into existence, as for instance,
an acknowledgement of liability.

Rights against the state were earlier considered imperfect because a subject can have no
right against the state. However, this is no more correct. It is now well accepted that the
subject may have a legal right against the State, which can be enforced.

o Positive and Negative Rights

Positive rights are permissions to do things, or entitlements to be done unto. One

example of a positive right is the purported right to welfare.
When a duty, which corresponds to a right, is a positive duty, that right is called a
positive right. The persons on whom the duty lies shall do some positive act on behalf of
the person entitled. A negative rights corresponds to a negative duty i.e., a person bound
shall refrain from some act, which would operate to the prejudice of the person entitled.
Positive right is a right to be positively benefited; negative right is merely a right not to
be harmed.
 Negative rights are permissions not to do things, or entitlements to be left alone. Often
the distinction is invoked by libertarians who think of a negative right as an entitlement to
non-interference such as a right against being assaulted.
The distinction is considered to be of great practical importance. The law is more
concerned with the prevention of harm than enforcement of positive benefit. Liability for
harmful acts of commission is the general rule, but liability for acts of omission is the
exception. It can be said that generally, all men are bound to refrain from all kinds of
positive harm, while only some are bound in some ways actively to confer benefits on
others. I have a right against everyone not to be pushed into the river, but no right to be
saved from drowning.

o Principal and Accessory Rights

A right may be affected either adversely or beneficially by the existence of other

rights. A right is adversely affected when it is limited or qualified by another right vested
in a different person. It is beneficial when a supplementary right is vested in the same
person is added to it. The right so augmented is called a principal right, while the right
appurtenant to it is the accessory right. A security is accessory to the right secured. A
servitude is accessory to the ownership of the land for whose benefit it exists. Similarly,
the rent and covenants of a lease are accessory to the landlords ownership of the
property.

o Public and Private rights

According to Holland the distinction between public and private rights depends upon
the distinction between public and private persons. A Public right relates to a person
having official or public character. They are such people which are discharging sovereign
function of the State in their official capacity e.g. the members of the government and
other government officers engaged in functions assigned to them by the State. Whereas
private rights relate to a person in his own individual capacity. Thus e.g., postmaster may
have two capacities at the same time- one official capacity under the law and the other
 individual capacity as a person which concern his private self or character. If he enters
into a contract with a car manufacturer for a car for his private use, he makes a contract
as a private individual and not as an agent or representative of the State. Thus a private
right concerns only private persons. In case of public rights they relate of State and
community in general in which person is not made personally liable for the acts which he
does in his official capacity. Austin, Kelson, and Duguit reject this distinction. Paton,
however says,31 the citizen has power to create rights and duties within the framework of
law, but cannot modify the rules themselves. Traditionally, jurisprudence distinguishes
between the law and the rights and duties created under that law. It seems more
reasonable, therefore, to admit the importance of the peculiar character of the State by
recognizing a fundamental distinction between public and private law.

o Vested and Contingent Rights

A vested right is a right belonging so absolutely, completely and unconditionally to a

person that it cannot be defeated by the act of any private person and that it is entitles to
governmental protection. A contingent right is a right which depends on some chance or
happening which cannot be predicted or foreseen. Thus a right vests when all the facts
have occurred which must by law occur in order for the person in question to have the
right. Thus all the invective facts which are necessary to create a right are necessary in
case of vested right. For example, the right of a son to succeed the property of his father
after his death is a vested right. The right of a minor to succeed to the property after
becoming a major is a vested right. Paton says a vested right depends on certain invective
facts which are necessary to create that right.32 A contingent right is one in respect of
which only some of the events necessary to bring it into existence and vest it in a party
have happened. The right of a survivorship is contingent right for the survivor may or
may not survive. For instance if the grant is to B for life and if C survives B, to C is fee-
simple. C has a contingent interest only because it is uncertain whether he will survive B.

31
Jurisprudence by John W. Salmond, fourth edition published by Stevens and Haynes, 1913, p. 122.
32
A text-book of jurisprudence by George Whitecross Paton published by Clarendon Press, 1951, p.353.
o Rights in re propia and Right in re aliena

Right over ones property and right over the property of another are respectively
called rights in re propia and rights in re aliena. For example, a landowners right in his
land are in re propria, his rights of way or easement over his adjoining landowners
property is a right in re aliena.

o Antecedent and Remedial Rights

These are sometimes called as primary and sanctioning rights respectively. A

sanctioning right is one, which arises out of the violation of another right. All other rights
which have some other source than wrongs, are primary rights. A primary right may
either be a right in rem, or a right in personam. The right of a person not to be assaulted is
a right in rem. The right of A that B perform his contract with A is a primary right in
personam, but the sanctioning right, which arises from the violation of a primary right,
will be in all cases a right in personam. When X assaults Y, Y has a sanctioning right in
personam to damages. If P breaks his contract with Q, Q has a sanctioning right in
personam to damages. It is obvious that sanctioning rights in their very nature can be
available only against a specific persons and they must, therefore be rights in personam.

Conclusion

The concept of rights and duties was meaningless before the evolution of society as there
was minimal interaction between human beings. The concept of society triggered the
need of a proper code to live peacefully which ultimately led to the evolution of plethora
of rights and duties. The question here arise is why these rights and duties were required
in the first place? The answer to this is fear. The fear of losing what one has, the fear of
being suppressed by the strong and yes ofcourse, the fear of losing ones identity.
Now, the rights and duties are always supplementary and complimentary to each
other. Wherever there is right there has to be presence of a duty. There can be no right for
which there is no duty. These rights and duties lies with the legal persons of interactions.
These interactions can occur between person A and person B or it can also happen
between A and X (State). Lets take few example to further understand the concept.
If A and B interact with each other for some purpose. Lets say that purpose is a watch
owned by A Now, B wants to buy As watch for which A is asking 1000 Rupees. To
facilitate this interaction they enter into a contract. Now, B has to pay 1000 Rupees in
order to purchase that watch. This is the duty on the shoulders of A. On the other hand, A
has right to take 1000 Rupees from B against that watch.

If A is a citizen of State X (India) and in that capacity he has certain rights guaranteed by
the law of that State. Now, He has a right to life which is protected under Article 21 of
Constitution of India. The State X (India) is in a duty to secure that right from any
danger.

We have Fundamental Rights enshrined in our constitution which are the liveliest
example of rights-duties transactions. Article 19(1)(a) secures the right to free speech and
expression to all citizens which means it is a right conferred by the law of the land to
citizens to speak their mind which is very necessary to individual development. It also
confers equal duty to rem not to violate that right in any condition until it clash with the
conditions provided in Article 19(2). A person cant have a right unless there he can
enjoy that right freely. If a citizen has a property, it is his right to enjoy that property
under Article 300 A in a reasonable manner and not opposed to public policy. It also
conveys a corresponding duty on everyone else not to infringe his enjoyment of that
property by holding nuisance, trespass, theft, etc.

Rights and duties help regulate the day to day workings of a civil society. Concepts like
contract law, criminal law etc. and democracy itself exist because of the existence of
Rights and Duties. These rights and duties ultimately form the Law. Rights and Duties
help to regulate the society without chaos and in a civilized manner. Thats why we can
say in the end that rights and duties are the bulwark to very existence of the society.
 References

John Chipman Gray: Nature and Source of the Law, (New York: Colombia

University Press, 1909)

Thomas Erskine Holland: Element of Jurisprudence, (Oxford University

Press, twelfth edition 1916)

John W. Salmond: Jurisprudence, (Stevens and Haynes, Fourth Edition

1913)

George W. Keeton: Elementary Principles of Jurisprudence, (Sir Isaac

Pitman & Sons 1930)

B.N Mani Tripathi: Jurisprudence The Legal Theory, ( Jain Book Agency,

2012)

Prof. G.C Venkata Subbarao: Jurisprudence & Legal Theory, ( Eastern

Book Company, 2008)

Prof. S.N Dhyani: Jurisprudence and Indian Legal History, (Central Law

Agency, 2014)

Dr. V. D. Mahajan, Jurisprudence and Legal Theory (Eastern Book

Company, Lucknow, 5th Edn. Reprint 2011)

Dr. N. V. Paranjape, Jurisprudence and Legal Theory (Central Law Agency,

Allahabad-2, Seventh Edition Reprint 2014)

 Roscoe Pound, The Ideal Element in Law, (Liberty Fund, 1958)

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