In this article, we shall study the characteristics of ownership. A duty is an obligatory act. Protection Theory of Rights —It is to be noted that the source of all legal right is Law. It can be said that primary rights exists independently whereas secondary rights have no separate existence and arise only on violation of primary rights. Salmond refers to four classes of encumbrances, namely, i) Leases; ii) Servitudes; iii) Securities & iv) Trusts. The law protects cruelty against animals, and to some interest the interest of animals, but animals do not possess any legal rights. According to Salmond, every legal right has five Essential elements which are as follows: The first essential element of the legal right is that there must be a person who is the owner of the Right. When in case of the breach the right is not enforceable in a court of law then it is known as imperfect right. We cannot have a right without a corresponding duty or a duty without corresponding right. It obliges a person to act or forbear in favour of the person who is entitled to the right. The object or subject-matter of the right is the land. He is sometimes described as the person of inheritance. Example:  If ‘X’ purchased a  car for Rs. He is the subject of the duty. It is a right of the person and the person bound shall restrain from doing some act. Immediate objects of law are the creation and protection of legal rights… LEGAL RIGHTS • According to Salmond : “ A right is an interest recognized and protected by a rule of right. Natural Law Theory Natural law theory, by contrast, regards the determination of law in accord with sound principles of political morality as essential to law making and law applying. It is a fact that it is only law which creates, protects and recognises the rights so created. 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”. Salmond says that there can be no right without a corresponding duty and vice versa. A positive right receives something more than what one already has whereas a negative right seeks to retain what one already has. Rudolf Von Jhering – Jhering defined rights as “legally protected interests”. The term ‘person’ and ‘personality’ has a historical evolution. 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. He is the subject of the legal right. On legal theories of rights, Laski examines the legal theory of state. Required fields are marked *. The law is to protect only those acts or rights which further “social solidarity”. Possession in fact and in law-Animus possidendi-Immediate & Mediate possession-Relation between … Contents of the Right – The act or omission which is obligatory on the person bound in favour of the person entitled. Right to exact and receive a pecuniary penalty from the defendant for loss of right and 2. A right is considered as positive or negative depending upon its correlative duty. When in case of the breach the right is not enforceable in a court of law then it is known as imperfect right. He emphasized that a legal right is not an interest in itself but it is only a means to extend protection to interests. They are recognized by society as common claims of all the people. The main characteristics of the jurisprudence are based on four aspects that are very important. The first and the most prevalent form of jurisprudence seeks to analyze, explain, classify, and criticize entire He has classified them into relative and absolute duties as explained above. 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. It consists of complex of rights, all of which are rights in rem, being good against all … They are equally available to all the people. 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.”. i) Leases – A lease is an encumbrance of property vested in one person by a right to. The Interest Theory. He says, for an interest to be regarded as a legal right, it should obtain not merely legal protection but also recognition. For example, the act of not wasting paper is our moral duty but not legal. It is an act recognized as a duty by law and treated as such for the administration of justice. According to Holland “Legal right is the capacity residing in one man of controlling, with the assent and assistance of the state, actions of others”. and is independent of any other duty. 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”. 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. Duties are classified under the following categories –. INTRODUCTION: Right generally means an interest or facility or a privilege or immunity or a freedom. 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. A positive right aims at some positive benefit but a negative right aims at not to be harmed. Venkata Subbarao, G.C., Jurisprudence and Legal Theory, 2008, 2. The jurists often consider law as a body of authoritative guides that help decision making. person in respect of the same subject-matter. The owner of the right, however, need not be certain or determinate. Roman law, Greek law and Hindu law, has used the concept too. A duty towards the sovereign or the state. Gray stated that the theory was only partially correct. These are the bundles of those rights which are the privileges enjoyed by any person e.g. S.R., Jurisprudence (Legal Theory), 2004. The Person of Inherence – It is also known as the subject of right. The law protects cruelty against animals, and to some interest the interest of animals, but animals do not possess any legal rights. Proprietary Rights are rights that are related to a person’s property whilst personal rights relate to one’s body. In this article, we shall study the concept of “Legal Rights”. In the religious context, the action to bee right should be consonant with moral principles as guided by religion. Legal rights are equally available to all the citizens without the discrimination of caste, creed & sex. It is a right against some person or persons. The state enforces such right as, a representative of the subjects in public interest. Some writers, although argue that there are certain rights which have no objects. Positive and Negative Rights 4. This was stated in the case of Allen v. Waters & Co. [(1935) 1 KB 200]. The number of negative rights is larger than the positive rights. It is a right to some act or omission of such person or persons. The noun right has different meanings resulting in the ambiguity of its exact meaning. 6. It is subdivided into two kinds – 1. It is vested within a person by law or any other legal manner. The concepts of legal rights and duties in Jurisprudence are elucidated below. Similarly, rights and duties are correlated. There exist two main theories of legal rights – 1. Definition, Basis and Characteristics & Types of Legal Rights by : Vijay Sardana Advocate, Delhi High Court. One of the very first questions that would come into any […] 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. Jurists have classified legal rights in the following ways – 1. This was stated in the case of. Such a person is called the person of incidence or the subject of the duty. These are the products of social living. Or answer to duty lying on party or parties, other than the party or parties in whom resides”. A right can be owned by the society, at large, is indeterminate. Specific performances may also be ordered by the court. They are beneficial on the principal right. In … LEGAL AND MORAL DUTIES:- A Legal duty is adversary of a legal wrong and it is recognized by the law for administration of justice. 5. The Privy Council in. He mentions four kinds of absolute duties:-. 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. 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. The subject, in its entirety, differs from other social sciences. A primary duty is one which exists “per se”. Legal rights affect every citizen. A public right is possessed by every member of the public. A legal right may be enforced through a Court of Law that has been established by the State. Feminist legal theory produced a new idea of using hedonic jurisprudence to show those women’s experiences of assault and rape was a product of laws that treated them as less human and gave them fewer rights than men. 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. are a classification of proprietary rights. Every person is entitled to negative rights, but only a few get positive rights. moral but not legal or legal but not moral, or both at once. Does this mean that the convict has the right to be hanged? It is an act. So, let’s have a look at the English Jurisprudence MCQs (81-100). The interests of men conflict with one another and the law. 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.”. The Will Theory states that right is an inherent attribute of the human will. The concept and contents of rights keep on changing with the passage of time. He is the “person of incidence”. a person’s rights to Liberty. The Interest Theory was proposed by the German Jurist, Rudolf von Jhering. Hence, it can be observed every right involves a three-fold relation, in which it stands. For example, a right that is concerned with the Government may be termed as a public right such as the right to vote. The Will Theory and 2. An accessory right is a right which is connected with the principal right. From the above essentials of legal rights, we can conclude that every right 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. The law enforced the performance of a legal duty, and punishes the disregard of its performance. Jurisprudence: Meaning, Importance and Indian Perspective, Criticism of Austin’s Theory of Positivism, Notion of Otherness and the Politics of Difference, JOB OPPORTUNITY: Directors, Law – Competition Commission of India : Apply by June 13, National Video Making Competition “Light, Camera, Action” | UILS, Panjab University, 3rd Bennett National Moot Court Competition 2021, Case Summary: Bachan Singh v State of Punjab (1980). This is explained by the latin maxim “ubi jus ibi remedium” which means, where there is a right, there is a remedy. Dr. Allen has tried to blend these two theories by pointing out that the essence of legal right seems to be, not legally guaranteed power by itself nor legally protected interest by itself, but the legally guaranteed power to realise an interest. Despite its wide acceptance, there were many scholars who disagreed with it. Corporeal and Incorporeal ownership-trust, vested and contingent interests. 10 lakh from ‘Y’, then ‘Y’ is called the subject of the duty. It is found only in England. the possession and use of it vested in another person. Learn how your comment data is processed. A primary duty is one which exists “per se” and is independent of any other duty. He is a person bound by the duty or the subject of the duty. Proprietary and Personal Rights 9. The chief characteristics of Sociological Jurisprudence are as follows: 1. The definition of legal rights have been propounded by several famous legal philosophers. A right is considered as positive or negative depending upon its correlative duty. and protected by a rule or justice. A company or a corporate enjoys its existence as a legal person which is endowed with all the rights and liabilities as that of a person by the effect of fiction created by law. The law of injunction is mentioned in Specific Relief Act, 1963. It is found only in England. In ancient Roman Society, there was no problem of personality as the ‘family’ was the basic unit of the society and not the individual. It is vested within a person by law or any other legal manner. According to Pollock ”right is freedom allowed and power conferred by law”. In the words of Austin, rights and duties are interdependent. Principal and Accessory Rights 7. The development of society is credited to the constant evolution of law. For instance, a right to receive a compensation is a positive right. Legal rights are the common claims of people which every cultured society recognizes as essential claims for their development, and which are therefore enforced by the state. Characteristics of Legal Rights: Legal rights exist only in society. He calls the theory of subjective right a a mere metaphysical abstraction. A violation or breach of the primary rights, on the other hand, gives rise to a sanctioning right or remedial right. a person’s rights to, Legal rights can be considered as both public and private. In Roman law, the term had a specialized meaning, and it was synonymous with ‘caput’ means status. Note: According to Prof.Duguit and Kelson, there is no such concept called legal right. In jurisprudence, we find a bitter discussion and disputes about the exact meaning of the term “Right”. It is called so as it is a mode of legal enforcement, for the loss of the primary right. 10 lakh, then the car is the object of right. According to Salmond, there are five important characteristics of a Legal Right : 1. International Journal of Law and Legal Jurisprudence Studies :ISSN:2348-8212:Volume 2 Issue 6 176 LEGAL RIGHTS Anamika Singh and Shriya Badgaiyan1 ABSTRACT Rights are conditions important for development of character of man. Title of the Right – Salmond has given the fifth element also, that is, “title”. According to Salmond, “A right is an interest recognised and protected by a rule of right.” It is an interest respect of which is a duty and disregard of which is a wrong. This entry in the legal theory Lexicon aims to give an overview of the “what is law” debate. It is also called the remedial or adjectival rights. Rights in re Propria and Rights in re Aliena are a classification of proprietary rights. It is as follows –, “If A buys , a piece of land from B, A is the subject or owner of the right so acquired. We will analyze under the light of various interpretations and definitions by prominent philosophers of legal jurisprudence to understand what a legal right is, and where legal rights have originated from? The subject means the person in whom the right is vested or the holder of the right. Legal rights: Characteristics, kinds of legal rights. In the words of Austin, rights and duties are interdependent. Proprietary rights are transferable and personal rights are not. According to Salmond “A right is an interest recognized and protected by a rule of law.”. 2. 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. Required fields are marked *. Perfect right means the complete right, which signifies the right for which there is remedy also. ii) The person of incidence: or the person on whom the corresponding duty is imposed. a duty not to commit a nuisance. Legal – A legal duty is an act, the opposite of which is a legal wrong. This may be called the object or subject-matter of the right. Rights in re Propria and Rights in re AlienaPrimary Rights are also called antecedent rights. Salmond says that there can be no right without a corresponding duty and vice versa. In this way right for the purpose of jurisprudence is called legal right. There can be no right without a subject. Your email address will not be published. Jurisprudence is the study of the theory and philosophy of law. He is the owner of the right, the subject of the right or the person entitled. Relative duties are those for which there is a corresponding right and absolute duties are those that do not have any corresponding rights. This theory was advocated by scholars like Hegel, Kant, Hume and so on. Every right and duty has a bond of legal obligation. Austin, Holland and Pollock define rights in terms of will. Paton also agrees taat one of the essential conditions of a legal right is that it should be enforceable by the legal process of the State. Your email address will not be published. A private right, on the other hand, is concerned with individuals, that is both the parties connected with it are private p. ersons. Salmond has criticized Jhering’s theory on the ground that it is incomplete since it completely overlooks the element of recognition by the state. Principal rights exist independently while accessory rights are dependent upon principal rights. 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.”, Primary Rights are also called antecedent rights. 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”. Self-regarding duties such as a duty not to commit suicide or not to consume drugs or liquor, etc. Indian Legal system > Legal Concepts > Jurisprudence > Introduction to Legal Rights. According to Laski, rights are those state of affairs of social life without which no man can be at his best. A. Legal rights exist only in society. When people come into contact with each other, everyone has certain rights and duties obligated towards one another. 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. It is supplementary, because it looks for and gives solutions to cases that are not foreseen by law. Jhering defined rights as legally protected interest. Some definitions are as follows –. Jurisprudence - Legal Rights and Duties. The governmental jurisprudence is also wrongly named the state jurisprudence. The concept has been severally elaborated by various jurists and scholars. According to Salmond, ownership denotes a relation between a person and an object forming the subject-matter of his ownership. Similarly, Moral duty is an opposite of moral wrong, but is not recognized by law but it is followed out of human conscience and social perception. A legal right may be distinguished from a moral or natural right. Origin of Legal rights has been a subject of debate for many decades. The modem terms right “in rem” and right “in personam” have been generalized, somewhat inaccurately, from Roman sources. According to Salmond every legal right has the following characteristics: i) The person of inherence: or the person in whom the right inheres or resides. Duties to those who are not human beings such as duty towards God or animals, birds, etc. The Person of Incidence – A legal right operates against a person who is under the obligation to obey or respect that right. Legal right is an interest recognized and protected by law. Thus, a slave had an imperfect persona. The sociological jurists have greater concerns when it comes to the functioning and working of the law rather than the nature of the law. Paranjape, Dr. N.V., Studies in Jurisprudence & Legal Theory, 2008, 3. IF damages don’t suffice, the object itself may be restored. They are not absolute. He has classified duties into absolute and relative. Legal rights can be considered as both public and private. A secondary duty, on the other hand, is one which has no independent existence of other duties. An individual cannot claim rights if those are not recognised by the state. ii) Servitude – A servitude is a right to the limited use of a piece of land unaccompanied. Indian Legal system > Legal Concepts > Jurisprudence > Legal Rights, Your email address will not be published. These are the bundles of those, rights which are the privileges enjoyed by any person e.g. by an equitable obligation to deal with it for the benefit of someone else. This definition was not widely accepted. 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. According to him the basis of law is the objective fact of “social solidarity” and not the subjective will. Legal philosophy has many aspects, but four of them are the most common. John Salmond – Salmond defines right as an interest. It relates to some act to do or not to do any act or forbearance. They cannot be exercised against the society. is a right that is available only against specific number of people. According to Laski, “Right is those conditions of social life without which no man can seek in general, to be himself at his best.”, T. H. Green explained that “Right  is a power necessary for the fulfillment of man’s vocation as a moral being.”, Beni Prasad stated that “Rights are nothing more nor less than those social conditions which are necessary or favourable to the development of personality”. The owner of a  right need not be a determinant or fixed person. Jurisprudence and philosophy of law in the modern era, and has been the central occupation of contemporary analytic Jurisprudence. A person possessing a positive right can compel the person with the duty to perform a positive act. Every right and duty has a bond of legal obligation. This is explained by the latin maxim, which means, where there is a right, there is a remedy. A positive right involves a positive act while a negative right involves some kind of forbearance or not doing. is the rule of justice and protects only certain interests. He asserts that the basis of legal right is “interest” and “not will”. It is something to do or abstain from doing in favour of another person. 3. He says, for an interest to be regarded as a legal right, it should obtain not merely legal protection but also recognition. A positive right exists when the owner of it is entitled to something to be done by the person of incidence. The thing or an object over which the right is exercised is called ‘Object of Right’. States jurisprudence commonly means the philosophy of law. The persons bound by the correlative right are persons in general, for a right of this kind avails against all the world. 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. These are also called real and personal rights. Vested and Contingent Rights 5. The owner of the encumbered property is called the trustee and the owner of the encumbrance is the beneficiary of tire trust. Jurisprudence Lecture video and jurisprudence lecture notes can be found in this course. 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. The Characteristics of the Governmental Jurisprudence. For instance, a right to receive a compensation is a positive right. Duties may also be distinguished into positive and negative duties. A secondary duty, on the other hand, is one which has no independent existence of other duties. Myneni, Dr. recognized as a duty by law and treated as such for the administration of justice. A legal right occurs against another person or persons who are under a corresponding duty to respect that right. 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. Salmond – A duty is roughly speaking an act which one ought to do, an act the opposite of which would be a wrong. The concept of Rights and Duties form an important part of Legal Jurisprudence. iii) Security – Security is an encumbrance vested in a creditor over the property of his. Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the Corpus Juris Civilis (AD 529) ordered by Eastern Roman Emperor Justinian I.Roman law forms the basic framework for civil law, the most widely used legal system today, and the terms are sometimes used synonymously. The characteristics of corporations, their rights and liabilities, functional autonomy and juristic status are jurisprudentially recognized as of a distinct entity even where such corporations are State agencies or instrumentalities. Vested rights are transferable and inheritable, this is not possible in contingent rights. The law does not protect all such interests. This is called the context or substance of right. It is vested in a person who may be distinguished as the owner of the right, the subject of … A person possessing a positive right can compel the person with the duty to perform a positive act. 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