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INTRODUCTION act; (3) Powers to alter existing legal situations

INTRODUCTION

The real credit
of development of human civilization goes to law and its prohibitive process
which apprised man of his rights and duties as a unit of the society. Peoples
are the members of the society; they had a certain legal rights and duties
towards one another.

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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 interest by regulating the conduct
of individuals in the society. For this attainment of this objective, it is
necessary that state should make use of its physical force for the enforcement
of legal right and punish those who violate these rights.1

A legal right
must obtain not merely legal protection, but also legal recognition. It has
been said that the legal material can be identified with reference to the use
of the word ‘law’ by courts. The detailed rules so identified are distributed
under various heads and new categories keep on emerging such as obligations,
intellectual property and others. There are different ways of classifying the
texture. There are:

(1) Duties
prescribing how people ought, or ought not, to behave with regard to others,
who are said to have correlative claims or rights;

(2) Liberties or
freedoms to act and not to act;

(3) Powers to
alter existing legal situations

(4) Immunities
from having existing legal situation altered;

(5) Location of
legal relationships

(6) Principles,
doctrines and standards

The first four
concern legal relationships between persons and are termed ‘Jural relations.’
The noun ‘right’ can be given many meanings; it can be said as the standard of
permitted action within a certain sphere. Within a particular system of ethics
we discover whether a particular action is right by asking whether it is
consonant with the general principles on which system is based. Hohfeld’s
mission, in his own admission was neither a philosophical inquiry nor a study
of the nature of legal relations as an end in itself. His theory was intended
on the other hand, to “aid in the understanding and solution to practical,
everyday problems of the law”. Equally important is it to note at the outset
that Hohfeld’s thesis was stipulative or definitional and therefore intended to
provide no normative conclusion as to how legal relations should be structured
in a society. He only endeavored to lay out a conceptual understanding of what
rights, privileges, powers and immunities are, hoping thereby to bring clarity
to legal literature and judicial reasoning.

Every right,
therefore, involves a relationship between two or more legal persons, and only
legal persons can be bound by duties or be the holders of legal rights. Rights
and duties are a correlative that is we cannot have a right without a
corresponding duty or a duty without a corresponding right. This paper brings
out to light how Hohfeld has dealt with concept of legal rights using his
Fundamental Legal Conception.

 

Legal Rights and Duties

 

1.     
Legal
right : Meaning and definition2

Law
is an instrument, which regulates human behavior, in other word, through the instrumentality
of law, the state regulates the conduct of human being (man).

Thus,
the state is shouldered with an obligation to protect the legal rights of the
individuals in the society to establish peace and social security.

MEANING:

The
term ‘right’ in the ordinary sense, means. “the standard of permitted action
within a certain sphere”. The word right is equivalent to latin wors ‘rectus’,
from which we derive the words such as rectify, correct etc.

Any
action of the person permitted by law is called ‘Right’. In other words, an
interest recognized and protected by law is called ‘right’.

Similarly
the expression ‘legal right’ means “the standard of permitted action by law”.
In other words an interest recognized and protected by the state is called
‘legal right’. Every rights consists of two elements namely,

1.      The
material element (eg. Money, property etc) and

2.      The
formal element (eg. Power to realize the interest, capacity etc.).

 

DEFINITION:3

It
is very difficult to define ‘legal right’ the definition is given by different
jurist cover either of the two elements of legal right that is material element
and formal element.

SALMOND:

Sir
john Salmond, in his jurisprudence define ‘legal right’ as “an interest
recognized and protected by the rule of legal justice”.

HOLLAND:

“A
right is a capacity residing in one man of controlling with the assent and the
assistance of the state, the actions of the others. Every rights gets its
validity by state.”

HOLMES:

“A
legal right is nothing but a permission to exercise certain natural power and
upon certain conditions to obtain protection, restitution or compensation by
the aid of public force.”

PALLOCK:

Right
is a freedom allowed and power conferred by Law.

BUCKLAND:

“A
legal right is an interest or an expectation guaranteed by law”.

AUSTIN:

According
to Austin, “A person can be said to have a right onlywhen another or others are
bound by Law.”

ALLEN’S DEFINITION :

According
to him, “Right is a legally guaranteed power to realize an interest”. This
definition may be regarded as the best one, since it covers both the elements
of right.

2.      ELEMENTS OR FEATURES OF LEGAL RIGHT4

There
are five elements of legal rights as stated below:

·        
Subject

·        
Object

·        
Content

·        
Subject of duty and

·        
Title

SUBJECT OF RIGHT:

Subject
of right is the person in whom the right resides. In other words, the person
entitled to the legal right is called ‘subject of right’. Or owner of the
right.

Eg :
‘A’ purchased a house for Rs. 50,000/-. ‘A’ is called ‘subject of Right’.

OBJECT OF RIGHT:

The
thing or an object over which the right is exercised is called ‘object of
right’. In the above example, house is the object of right.

CONTENT OF RIGHT

The
content of the right is the extant to which the Subject(owner) of right can
exercise his right over the thing. (object of right that is house in above
example). If the subject of right is the owner, he can sell it or give it as
gift or even destroy it.

If
the subject of right is a tenant, he can use of enjoy, but cannot sell or
destroy it.

SUBJECT OF DUTY:

Law
recognized right of a person if there is a corresponding duty on the part of
another person. To accord recognition to the right of a person, law imposes an
obligation or duty on another person/persons or on the world at large except
the subject of right.

TITLE:

‘Title’ is a process, by
which the right is vested/conferred. Purchase, gift, etc., confers title on a
person.

 

3.      LEGAL RIGHT AND FUNDAMENTAL RIGHT

Both the legal right (Eg. RIGHT TO PROPERTY) are the rights
recognized and protected by the state. However, the state can waive/take away
the legal right for the public interest or welfare of the state. But the
fundamental rights are those right. Which cannot be taken away by the state or
any authority.

If the fundamental right is taken away/violated, the aggrieved can
approach the high court (under article 226 of the Indian constitution) or
supreme court (under article 32 of Indian constitution) for protection or
enforcement of the fundamental right.

If the legal right is taken away, the aggrieved cannot protect it
through the court of Law. In other words, fundamental rights are enforceable whereas
legal rights are not enforceable.

For instance, right to property earlier that is before 1979 was a
fundamental right guaranteed under article 19(1)(f) of the Indian constitution.
After passing of the constitution (44th) Amendment Act, 1979, right
to property under Article 31 and 19(1)(f) is deleted. Now the right to property
is a legal right (constitutional right under Art. 300-A)

4.     
KINDS
OF RIGHTS5

Rights
may be classified under the following heads

·        
Perfect and imperfect rights

·        
Positive and negative rights

·        
Rights in rem and rights in personam

·        
Rights in Re propria and rights in Re aliana

·        
Proprietary rights and personal rights

·        
Legal and equitable rights

·        
Vested and contingent rights

·        
Public and private rights and

·        
Principal and accessory rights

 

a.     
Perfect
and imperfect rights:

Perfect
right is one which is recognized and enforceable by Law. Eg. ‘a’ lends ‘b’ Rs.
10000/- against a promissory note. If ‘a’ sues ‘b’ before three years, law
recognizes A’s right and enforce it. (fundamental rights are enforceable).

 

‘Imperfect
right’ is one, which is recognized, but not enforceable. In the above example
A’s rights become imperfect if he sues after 3years that is beyond the period
of limitation. (Directive principles of state policy are not enforceable).

 

b.     
Positive
and negative rights

A
positive right corresponds to a positive duty that is to do an Act or thing. In
other words, a positive right enables its owner/ holder to compel other to do
certain thing. Eg. Creditor’s right over debtor, compelling him to repay is a
positive right.

 

Whereas,
negative right corresponds to a negative duty that is ‘not to do a thing or an
act’. I other words, the person against whom the negative rights is available
must forbear (abstain) from doing some Act. Eg. When we say that ‘X’ is owner
of watch/article no one can touch it without x’s permission. X’s right is
negative since others have negative duty.

 

c.      
Rights
in rem and rights in personam

This
classification is borrowed from roman law by English law. A right in rem is a
right which is available against the entire world. Eg. Right to a  land or house. Eg. Right available to a person
in law of torts. Whereas ‘right in personam’ is a right available against
definite or specified person/persons. Eg. Rights available to a person in a
contract.

 

d.     
Rights
in Re propria and rights in Re aliana

Right
in Re propria is the right over’s one owns property. It is nothing but
proprietary right. It is based on the maxim ‘he who produces belong to
himself’.

Whereas
right in Re aliana means a right over the property of another. Eg. A persons
right of way over the land of another.

e.      
Proprietary
rights and personal rights

Rights
in relation to one’s own property is called ‘proprietary right’. It constitutes
property, assets or estate of a person. Eg. Right to land, buildings etc.

Personal
rights are rights relating to one’s person or body. It refers to one’s character
or reputation. Eg. Right to life, personal, liberty, reputation etc.

 

f.      
Legal
and equitable rights

Before
the passing of judicature Acts of 1873 and 1875, there were two types of courts
that is, equity courts and common law courts in England. Even after the merger
of equity and law(through the judicature Act of 1873) the distinction between
legal and equitable rights still continued to exist.

Legal
rights were those recognized and protected by the common law courts, while the
equity rights were those recognized and protected by the equity courts (the
high court of chancery in England).

g.     
Vested
and contingent rights

Vested
right does not depend upon the fulfillment of a condition. Contingent rights
depend upon the condition precedent or condition subsequent.

A
vested right is one in which all events essential to vest the right (in owner)
have happened. Eg. Sons right to sue for property after the death of his
father.

While
contingent right is conditional right. It is a right which is subject to happening
of certain facts (to vest the right on the holder). Eg. ‘A’ offers to transfer
his property to ‘B’, if ‘B’ marries ‘C’. here B’s right is contingent.

 

h.     
Public
and private rights and

Public
rights are those vested in by state. Eg. Right to use highway, right to vote
etc.

A
private right is one which is exercised by an individual to protect his
benefit.

 

i.       
Principal
and accessory rights

In a mortgage a
debt is a principal right and the security is an accessory right. Accessory
right is one which exceeds the value of original right. Then the original right
is called principal right.

 

DUTY: MEANING AND DEFINITION6

MEANING:

Duty
literally means that some person has to do something or abstain from doing
something in favour of another person. In other words, it is “an obligation to
do or omit to do something”.

In
legal sense, duty means “a legal obligation to do or not to do something”. Eg.
A servent is under a duty to serve his master. A son is under a duty to feed
his dependent parents.

 

DEFINITION:

Hibbert
defines legal duty as “the predicament or a person whose acts are liable to be
controlled by another with the assent and assistance of the state”.

 

Salmond
says , “a duty is roughly speaking an Act which would be wrong.” To ascribe a
duty to a man is to claim that he ought to perform a certain act.

 

According
to dicey, “duty is a species of obligation. People obey it due to indolence,
deference, sympathy, fear and reason.

And
also due to psychological, social and moral pressures. The majority of duties
are supported by state. The breach of the duty is imprisonment or fine.”

 

KINDS OF DUTIES7

·        
Universal, general and particular duties

·        
Moral and legal duties

·        
Primary and secondary duties

·        
Positive and negative duties and

·        
Relative and absolute duties

 

·        
Universal,
general and particular duties

According
to jenks, universal duties are those, which are binding on all normal citizens
of the community. General duties are those, which are binding on specific
classes of normal persons. Particular duties are those, which are binding
between the persons, who have voluntarily undertaken them.

·        
Moral
and legal duties

A
moral duty is one, which can be enjoyed by the rules of propriety and moral
right. Whereas legal duty is one, that can be enjoyed by the law of land.

·        
Primary
and secondary duties

The
former is main, essential and independent, while the latter is ancillary and
exists for enforcement of some other duty. For instance, bank’s primary duty is
boeeowing and lending.

Its
secondary duty is to render agency services to its customers. Eg. Collection
and payment of cheques, sale and purchase of assets, shares etc, on behalf of
the customers.

·        
Positive
and negative duties and

when
the law obliges on to do an Act, our duty to do such act is called positive
duty. Eg. Duty to walk on the left side of the road. Similarly, ‘A’ lends Rs.
10,000/- to ‘B’. then ‘B’ has a duty to repay the amount to ‘A’. ‘B’ duty is
called positive duty. When the law obliges us not to do an act, such duty is
called positive duty. Eg. Duty not to enter into private land or not to make
unauthorized use of another’s property.

·        
Relative
and absolute duties

Salmond says that rights
and duties are correlative. But Austin says that rights and duties are not
correlative but interdependent. Austin classifies duties into two categories
namely:

a.       Relative
duties and,

b.      Absolute
duties.

Relative
duty is one, for which there will be corresponding duty. Eg. ‘A’ enters into an
agreement with ‘B’ to purchase his (B’s) house. Here, ‘B’ has a duty (relative
duty) to sell the house and pay the amount. Absolute duty is one, which has no
corresponding right. According to Austin, absolute duties are sub-divided into
four classes namely –

a.     
Duties
towards god or lower animals

According
to Austin, in respect of duties towards god and lower animals, there will be no
corresponding rights from the god or lower animals because the (god and lower
animals) are not legal persons. The duty towards god is not a legal duty since
there can be no corresponding right from the god.

b.     
Duties
owed to persons indefinitely

Austin
opines that rights can be vested in some definite/determinate person or persons
and cannot be vested in an indefinite/indeterminate person/persons like
society, having no corresponding duties.

c.      
Self-regarding
duties and

Self-regarding
duties pertain one’s own-self and there will be no corresponding right from
one’s own-self. Duty in such situation is absolute without any corresponding
right.

 

 

d.     
Duties
towards the sovereign or state

People
or citizens in a particular country owe duties towards their
King/soverign/state. There eill be no corresponding rights because the
king/soverign/state being the ruler cannot be the holder of rights.

 

 

1.
Dr.N.V. Paranjape Studies in Jurisprudence And LEGAL THEORY, 359, (7th ed.,
2013) 

2
Dr.N.V. Paranjape, Studies in Jurisprudence And LEGAL THEORY, 361, (7th ed.,
2013)

3
Dr. Rega Surya rao, Studies in Jurisprudence And LEGAL THEORY, (95,96), (2nd
ed., 2013)

4
Dr. Rega Surya rao, Studies in Jurisprudence And LEGAL THEORY, 96, (2nd ed.,
2013)

5.
Dr.N.V. Paranjape, Studies in Jurisprudence And LEGAL THEORY, 375, (7th ed.,
2013)

6.
Dr. Rega Surya rao, Studies in Jurisprudence And LEGAL THEORY, 101, (2nd ed.,
2013)

7
Dr.N.V. Paranjape, Studies in Jurisprudence And LEGAL THEORY (7th ed., 2013).

 

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