The real credit of development of human civilization goes to law and its prohibitive processes which apprised man of his rights and duties as a unit of the society. When people come in contact as members of society, they have certain legal rights and duties towards one another. These rights and duties are regulated by the law prevalent in the society. It is well known that the main purpose of law is to protect human interests by regulating the conduct of Individuals in the society. For the attainment of this objective, it is necessary that State should make use of its physical force for the enforcement of legal rights and punish those who violate these rights.
General Meaning of Right
In general parlance, right means claims or titles, liberties, powers and Immunities summed together In other sense, it is a permissible action within a certain sphere. The latin term for right is rectüs which means ‘correct’.
Salmond has defined a ‘right’ as a man’s capacity of influencing the acts of another, not by his own strength, but of the opinion on the force of society.
According to Julious Stone, a ‘right’ connotes:-
(i) a claim justifiable in words
(ii) an attitude of human being by virtue of Some supposed ideal or natural right of life, equality, property which is in acordance with natural law.
(iii)the existence of right presupposes existence of a remedy for its breach. This has been well explained by the latin maxim “ubi jus ibi remedium”
The German equivalent for right is Retch, in French it is called droit.
Theories of legal right
Will Theory : (Austin , Holland ,Pollock )
This theory says that the purpose of law is to grant the individual the means of self expression or self-assertion . Therefore right emerges from Human Will.
A strong support to the theory has been given by the doctrines of natural rights. Different jurists has expressed different view regarding this theory which are as follows :- Also known as Choice Theory
According to this theory your having a right to something means :That
- You have control
- You have power over others free will in regard to it. Otherwise they can do as they wants .
A party has a right when another or others are bound for obliged by the law to do or forebear towards or in respect of him.
Holland defines right as
A capacity residing in a person to control the action of others
Pollock defines right as
Freedom allowed and power conferred by law.
Duguit opposed will theory on the basis that Law is the objective fact of social solidarity and not subjective will.The idea of will is anti-social.
However law makes balance between will and conflicts of will . Will has to be enjoyable to the extent so that other freedoms or social interest should not be hampered . Thats why paton says that will is an essential element in the general conception of legal right but it is not the only element.
Interest Theory : Your having a right to something means that it is in your interest or is to your benefit and someone else has a duty to provide it . Someone violates your rights by not doing his or her duty to provide the thing that is in your interest .
An interest or expectations guaranteed by law.
Right as a legally guaranteed power to realize an interest.
Right is legally protected interest .
An interested recognised and protected by law .But it is only human’s interest or societies interest.
Features of Right
- Legal rights exist only in society. These are the products of social living. They cannot be exercised against the society. They are to be exercised by the people for their development and hence for the development of society.
- They are claims of the individuals for their development in society. They are recognized by society as common claims of all the people.
- They are rational and moral claims that people make in their society.
- They are equally available to all the people.
- The concept and contents of rights keep on changing with the passage of time.
- They are not absolute. These always bear limitations deemed essential for maintaining public health, security, order, and morality.
- They should be utilized with some duties.
They need enforcement and only then these can be really used by the people. It is the duty of a state to protect the rights of the people.
- The person of inheritance: He is the first essential of the legal right. It is vested in a person who may be distinguished as the owner of the rights, the subject of it, the person entitled, or the person of inheritance. The owner of a right need not be a determinant or fixed person. If an individual owes a duty towards society at large, then an indeterminate body is the subject of inheritance. Example -If ‘X’ purchased a car for Rs. 10 lakh from ‘Y’, then ‘X’ is called the subject of the right. The person of inheritance may be a particular person (owner of plot) or an unascertained person (bequest to an unborn person) or an indeterminate body (Municipal bodies has to perform certain duties, which create certain rights in favour of society or community as a whole).
- The person of incidence / Subject of the Duty: A legal right occurs 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. He is the person bound. If X has a particular right against Y, X is the person of inheritance and Y the subject of incidence. Example: If’X’ purchased a car for Rs. IO lakh from ‘Y’, then ‘Y’ is called the subject of the duty. Rights and duties are two sides of the same coin. Every legal right implies a corresponding duty.
- Subject matter or Contents of legal rights: It obliges the person bound to an act or omission in favour of person entitled. Thus there must be obligation to do or not to do something. This may be termed the subject-matter of the right. It deals with the subject matter of legal rights. Example: If ‘X’ purchased a car for Rs. IO lakh from ‘Y’, then ‘X’ is has the right to enjoy peacefully the use of the car without any disturbance and this right can be inherited to his heirs after his death. Thus the right to enjoy the use of car is the subject matter of the legal right.
- The object of legal rights: The act or omission relates to something which may be termed as the object or subject matter of the right. Thus the thing or an object over which the right is exercised is called ‘Object of Right’. Example: If ‘X’ purchased a car for Rs. IO lakh from ‘Y’, then the car is the object of the right. The object may be tangible (Right to property) or intangible (Right to reputation).
- Title: A title is nothing but the name given to the legal right. The title is a process, by which the right is vested/conferred. Purchase, gift, etc confer a title on a person. Every legal right has title, that is to say, certain facts or events by reason of which the right has become vested in its owner. Title is the de facto antecedent of which the right is de jure consequence. Title signifies the source of legal right. Example: If ‘X’ purchased a car for Rs. IO lakh from ‘Y’, then the car is the object of the right. Thus the Title of ownership and possession is transferred from ‘Y’ to ‘X’. Title can be acquired by following modes: Citizenship (which bestows fundamental and constitutional rights), Purchase, Inheritance, Gift, Mortgage, Trove, Capturing, etc.
Kinds of Legal Rights :
- Perfect and Imperfect Right :- A perfect right means a right which has a correlative duty that can be legally enforced . Generally , when law recognises a right , it prescribed a remedy also and when the right is violated , it enforces it. An “imperfect right” is that right which, although recognized by law , is not enforceable , such as the claims barred by time. In such cases , the limitation does not extinguishes the right but bars the remedy only .Such cases may be considered as an exception to the rule, ubi jus ibi remedium (where there is right there is a remedy )
- Positive and Negative rights : A positive right is the right which has a correlative positive duty. In case of positive right , the person having the right can compel the person upon whom the correlative duty is imposed to do some positive act.
The negative right corresponds to negative duty and in the case of negative right , others are retrained from doing something.
- Rights in rem and Rights in Personam :- Right in rem means right available against the whole world or against the people in general .
A right in personam is available against a definite persons or persons.
For example , A’s right to enjoy his garden and house is available against whole world or the people in general . It is right in rem. If A works for B under a contract , his right to get remuneration is only against B and is a right in personam.
Generally most of the rights in personam, are positive rights and rights in rem are mostly negative rights.
- Proprietary and Personal Right — The aggregate of a man’s proprietary rights constitutes his estate, his assets and his property. They have some monetary and economic significance and are elements of wealth.
For example , money in one’s pocket or in bank , right to debt ,land ,houses etc. are proprietary rights.
On the other hand , personal rights are of no monetary value for example , right of reputation, personal liberty etc.
- Rights in re propria and in re aliena : – Right in propia means right over one’s own property and right in re aliena means right over the property of someone else .The latter may also be called as encumbrances using the term in widest sense.
The most absolute power which the law gives over a thing I’d called the right of dominium. This is a real right in a thing which is one’s own , and is called re propria. But in some cases man may have rights in property less than full ownership , the dominum being , in fact , vested in another . Such rights are called rights in aliena.
For example – if House of A of which he is the real owner put it on mortgage to B in order to obtain loan. In this , earlier A has in re propria right in his house and after mortgage the house , he has devided it’s interest and thus creates right for the B which is called re aliena.
There are four kind of encumbrances:
- Security and
- Principle and Accessory Right : Principal right is independent or any other right but accessory right are ancillary to principal rights and have a beneficial effect on the principal right.
For example : if a debt is secured by a mortgage , the recovery of debt is the principal right whole security is the accessory right . Likewise if an owner piece of land has a right of way on the adjoining land ,the ownership of the land is his principal right and right of way in the adjoining land is accessory right.
- Primary and Sanctioning Rights (Antecedent and Remedial Rights ): Primary rights are also called the antecedent or substantive rights . Similarly, sanctioning rights are also called the remedial rights. Sanctioning rights originate from some wrong that is from violation of another rights whereas primary or antecedent right have some source other than wrongs .
- Legal and Equitable Rights : Legal and equitable right originates from the distinction between law and equity . But when there is a conflict between these two rights the legal right shall take precedence over equitable right even if it is subsequent to the equitable right is origin.
- Vested and Contingent Rights : Vested Rights creates an immediate interest . It is transferrable and heritable . A contingent right does not create an immediate interest and it can be defeated when required facts have not occurred.
For example : if a transfer of certain property is acquired by a valid deed of transfer , the transferree acquired vested right in the property . However , if a property is transfered to a person hoon a condition that he shall be entitled to possession thereof when he attains the age of 21 , the right so acquired is a contingent right.
- Public and Private Rights : In order to understand the public and private right we must understand who is public and private person ?
Public person is meant either the “state” or the sovereign part of it, or a body or individual holding delegates authority under it.
The term private person denotes an individual or collection of individuals however large , who or each one if whom is of course , a unit of the State , but in no sense represents it , even for special purpose .
From the aforesaid definition , it follows that alright vested on the state is called public right.
A private right , on the other hand is concerned with only private individuals
- Servient and dominant rights : A servient right is one which is subject to an encumbrance while the encumbrance which derogates from it , may be called dominant.