Table of Contents
- Right
- Types of Right
- Legal Right
- Theories of Legal Right
- Classification of Legal Right
- Difference Between Legal and Moral Rights
- Duty
- Classification of Legal Duty
RIGHT
The term “Right” is derived from the Latin word ‘Rectus’, which means correct.
In general, the term signifies a claim, title, liberty, power, or immunity that a person possesses.
Salmond defined a right as:
“A man’s capacity of influencing the acts of another, not by his own strength, but by the force or opinion of the society.”
In simple terms, this means that a right empowers a person to influence others’ actions, not through personal power, but through society’s recognition and support of that power.
TYPES OF RIGHT
- Moral Right: Moral right is a kind of right in which interest is recognized by rules of morality. There are no legal consequences for violations of these rules.
- Legal Right: Legal rights refers to the rights which are recognized and protected by law.
Case: State of Rajasthan vs Union of India (AIR 1977 SC 1361)
The Supreme Court observed: “In a strict sense, legal rights are correlative of legal duties and are defined as interests which the law protects by imposing corresponding duties on others… Immunity, in short, is non-subjection.”
LEGAL RIGHT
Legal rights are enforced by law. Salmond identifies the following elements:
- Person of Inherence: The person in whom the right is vested (e.g., even an unborn child). He is also known as the owner of right.
- Person of Incidence: The person against whom the right is claimed. He owes a legal duty against the person of inherence.
- Content of Right: It is the act or omission the other party is bound to do or omit.
- Subject Matter of Right: Subject matter of the right means the object over which the right is exercised.
- Title of Right: Title is the legal recognition or label given to a right.
THEORIES OF LEGAL RIGHT
There are three theories of legal right:
- Will Theory
- Interest Theory
- Interest Theory
Will Theory
- According to this theory, right is an inherent attribute of human will.
- This theory suggests that a person having right to something means that he has control or power over others in regard to his right,
- As per this theory, absence of rights leads to societal disorder.
- The main source of derivation of right is the human will.
- This theory is supported by Hegel, Kant, Hume, Austin.
- This theory is also known as Choice theory.
Interest Theory
- This theory is propounded by German jurists.
- As per this theory, legal right = Legally protected interest.
- As per this theory, law aims to protect human interests over individual interests.
- This theory suggests that basis of legal right is interest.
Protection Theory
- This theory denies individual rights
- This theory suggests that state is omnipotent and all rights belong to the state.
- This theory is highly criticized in democratic systems.
CLASSIFICATION OF LEGAL RIGHT
Legal rights have been categorized in multiple ways by various jurists. Broadly, they may be classified into the following categories:
1. Perfect Rights
A Perfect Right is one that is recognized by law and is enforceable in a court of law.
These rights can be protected through legal action.
📌 Example: Right to receive payment under a valid contract.
2. Imperfect Rights
These are rights that are recognized by law but cannot be enforced in a court of law.
📌 Example: A time-barred debt (one that is past the limitation period).
3. Positive Rights
A Positive Right imposes a duty on others to perform a specific action. It requires active involvement of others.
📌 Example: Right to receive compensation from someone who causes harm.
4. Negative Rights
Negative rights restrict others from performing certain acts. They are about non-interference.
📌 Example: Right to reputation – others are bound not to defame or slander you.
5. Antecedent Rights
These are the rights that exist independent of any wrongdoing. They are pre-existing rights, not dependent on legal violations.
📌 Example: A buyer has an antecedent right over goods they have purchased.
6. Remedial Rights
Remedial rights arise after the violation of an antecedent right. They involve relief or compensation for the harm caused.
📌 Example: Right to claim damages after breach of contract.
7. Right in Rem (Against the World)
A Right in Rem is enforceable against the entire world. It is also called a real right, it is generally negative in nature (prohibiting others from interference).
📌 Example: Right to own property — others must not trespass.
8. Right in Personam (Against a Person)
A Right in Personam is enforceable against a specific person. It is also called a personal right, it is generally positive in nature.
📌 Example: Right to receive services from a contracted party.
9. Proprietary Rights
These rights refer to rights related to a person’s assets, estate, or property. They have monetary or economic value.
📌 Example: Right to sell one’s land.
10. Right in re Propria
Right in re propria is a right one holds over their own property.
📌 Example: Ownership right over your house.
11. Right in re Aliena
Right in re aliena is a right over another person’s property.
📌 Example: When a property is mortgaged, the mortgagee has a right in re aliena.
12. Principal Rights
These are independent rights, not based on any other right. These rights exist in themselves.
📌 Example: Right to freedom of speech.
13. Accessory Rights
These rights are dependent on a principal right. They cannot exist in isolation.
📌 Example: Right to claim interest is accessory to the principal right to claim a loan amount.
DIFFERENCE BETWEEN LEGAL RIGHTS AND MORAL RIGHTS
| Basis | Legal Right | Moral Right |
|---|---|---|
| Definition | Recognized by law | Recognized by rule of natural justice |
| Origin | From the legal system | From ethics or societal norms |
| Protection | By the state | By natural justice |
| Legally Enforceable | Yes | No |
| Example | Right to vote | Right to not be lied to |
DUTY
A duty is an obligatory act — something one ought to do. If a person fails to perform a duty, it results in a wrong, whereas performing the duty means avoiding that wrong.
In simple terms:
✅ Doing your duty = doing the right thing
❌ Not doing your duty = committing a wrong
Duties are generally divided into two major categories:
- Moral Duty- A Moral Duty is one that a person is bound to perform by conscience or ethical standards. However, there is no legal compulsion to enforce it.
- Legal Duty- A Legal Duty is one that a person is bound to perform under the law. The State enforces such duties, and punishes violations.
CLASSIFICATION OF LEGAL DUTY
Legal duties are classified into following types:
- Positive duty- A Positive Duty is when the law requires a person to do something — an act must be performed. For example, paying taxes is a positive legal duty.
- Negative Duty- A Negative Duty is when the law restrains a person from doing something. For example, Article 21 of the Indian Constitution grants the Right to Life. This means others have a legal duty not to harm or kill.
- Primary Duty- A Primary Duty is independent — it exists on its own, without relying on any other duty. For example, The duty not to injure another person is a primary duty that stands by itself.
- Secondary Duty- A Secondary Duty is dependent on the breach of a primary duty — it arises after a wrong has occurred. For example, If someone causes harm, they have a secondary duty to pay damages to the injured party.
- Absolute Duty- An Absolute Duty must be fulfilled unconditionally, without exceptions or excuses. These are not necessarily linked to any corresponding rights.
- Relative Duty- A Relative Duty always corresponds to a legal right. Most legal duties fall under this category. For example, If a person has the Right to Life, then everyone else has the Relative Duty not to violate that right.
References:
- Jurisprudence and Legal Theory by V.D. Mahajan
- Studies in Jurisprudence and Legal Theory by N.V. Paranjape
