:Rights:

1:Introduction:
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the
fundamental normative rules about what is allowed of people or owed to people, according to
some legal system, social convention, or ethical theory.1 Rights are of essential importance in
such disciplines as law and ethics, especially theories of justice and deontology.

Rights are often considered fundamental to civilization, for they are regarded as established
pillars of society and culture, and the history of social conflicts can be found in the history of
each right and its development
According to the Stanford Encyclopedia of Philosophy,
"Rights structure the form of governments, the content of laws, and the shape of morality as it
is currently perceived"2
Rights are those essential conditions of social life without which no person can generally realize
his best self. These are the essential conditions for health of both the individual and his society. It
is only when people get and enjoy rights that they can develop their personalities and contributes
their best services to the society.
2: Meaning:
In simple words, rights are the common claims of people which every civilized society
recognizes as essential claims for their development, and which are therefore enforced by the
state.
3:Definitaions:
I. According to Philosphers:
 -Laski:
“Rights are those conditions of social life without which no man can seek in general, to be
himself at his best.”
 T. H. Green:
“Rights are powers necessary for the fulfillment of man’s vocation as a moral being.”
 Beni Prasad;
“Rights are nothing more nor less than those social conditions which are necessary or
favourable to the development of personality”3

1
http://plato.stanford.edu/entries/rights/
2
Fagan, Andrew. "Human Rights". Internet Encyclopedia of Philosophy
3
http://www.yourarticlelibrary.com/essay/law-essay/rights-meaning-features-and-types-of-rights/40 373

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 II. Definition according to Legal Philosopher:
 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”.
Crticisim:
This definition was not widely accepted. 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.
 John Salmond
Salmond defines right as an interest recognised and protected by a rule or justice. He says, for
an interest to be regarded as a legal right, it should obtain not merely legal protection but also
recognition. The law protects cruelty against animals, and to some interest the interest of
animals, but animals do not possess any legal rights.
 Holland
“Capacity residing in one man of controlling, with the assent and assistance of the state the
actions of others.”

 Gray
He defined a legal right as “that power which a man has to make a person or persons do or
refrain from doing a certain act or certain acts, so far as the power arises from society imposing a
legal duty upon a person or persons.” He states that the “right is not the interest itself, it is the
means to enjoy the interest secured.”4
4: THEORIES OF LEGAL RIGHTS

There exist two main theories of legal rights –

1. The Will Theory and

2. The Interest Theory.

1;The Will Theory of Legal Rights :

Herbert L.A. Hart (1907-92), a British legal scholar, is credited with developing the will theory
of rights. He cited Kant as inspiring his thinking about the importance of human freedom, or
liberty. Freedom is the most basic right, according to will theory. It is a moral (or natural) right.
All other rights, moral or legal, are specific protected freedoms. Limiting anyone’s freedom

4
https://www.legalbites.in/rights-duties-jurisprudence

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always requires the authorization of others’ rights; and the subjects of rights remain free to
“claim” them or not.
The will theory, also known as the “choice theory,” allows rights-holders free choice to insist
upon their rights, or to waive them
Example: your right to some land is your freedom to do with it as you wish. Everyone is wrong to
interfere with your freedom unless they have a right. If someone uses your land without having a right,
you are free to allow it, or to choose to prevent it by claiming the protection of your right to legal
authorities.
Animals cannot have rights on the will theory. They have no conception of a basic right of
freedom, and cannot understand the idea of limiting of rights; nor would they be capable of
claiming or waiving rights.5
 Problems for the Will Theory :

1. No inalienable rights: The freedom protected by rights includes the freedom to waive any right,
including freedom to accept payment for waiving rights. Rights-holders could bargain away any of their
rights.
2. Right-holders’ cognitive capacities: having a right requires understanding how to claim or waive it,
which infants cannot understand, nor can mentally incapacitated adults; so, like animals, they cannot have
rights.6
2: The Interest Theory of Legal Rights
Jeremy Bentham (1748-1832) initiated the interest theory. As a utilitarian, he was critical of the idea of
moral rights, but conceded that the rights could be useful in legal systems. Someone would have a right to
something (x), against a second person, if that person had a legal duty to provide the first person with x.
For example, on Bentham’s interest theory, you have a right to vote if someone is legally required to
provide you with the opportunity to vote, and count your ballot, and so on.

More recent philosophers developing the interest theory, also known as the “benefit theory,” think that
basic moral duties to respect others’ essential interests, such life and liberty, serve as the basis of moral
rights. According to Joseph Raz, a recent interest theorist:
“X has a right if and only if X can have rights, and other things being equal, an aspect of X’s well-being
(his interest) is a sufficient reason for holding some other person(s) to be under a duty.”
Animals could have interest-based rights (moral or legal), provided their interests are “sufficient reasons”
for holding someone to be under a duty. It has to be specified what “sufficient reasons” means here.7

 Problems for the Interest Theory

1. Limiting interests: Specifying the set of interests that are sufficient reasons for rights is nearly
impossible. The proliferation of interest based rights continues: welfare rights; healthcare rights; women’s
rights; animal rights; etc.

5
http://core.ecu.edu/phil/mccartyr/1175docs/TheoriesofRights.pdf
6
Bentham, J. (1987) Anarchical Fallacies, in, Waldon, J. (Ed.) Nonsense upon Stilts New York: Methuen
7
http://core.ecu.edu/phil/mccartyr/1175docs/TheoriesofRights

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 2. Third-party interests: If you promise to tend a neighbor’s child, you have a duty, and the child has an
interest in your doing your duty; so the interest theory says the child has a right to your care. But only the
neighbor has the right.

 Possible Hybrid Theories

An Interest Theory with a Single Interest
 The only sufficient reason for rights is the interest of freedom. This limits the interest theory’s rights,
but this does no/8t solve the will theory’s problems with inalienable rights, etc. A Will Theory with
Duty-Based Restrictions
 Basic interests in life, freedom, etc., are the basis for duties not to take lives, restrict freedom, etc.,
creating inalienable rights. But the interest theory’s interest-limiting problem remains8

5:ELEMENTS OF A LEGAL RIGHT

According to Sir John Salmond, each legal right has 5 essential elements –

 The Person of Inherence – It is also known as the subject of right. 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”. Thus, there cannot be a legal right without a subject or a
person who owns it. The subject means the person in whom the right is vested or the
holder of the right. There can be no right without a subject. A right without a subject or a
person who owns it is inconceivable. The owner of the right, however, need not be
certain or determinate. A right can be owned by the society, at large, is indeterminate.
 The Person of Incidence – A legal right operates against a person who is under the
obligation to obey or respect that right. He is the “person of incidence”. He is a person
bound by the duty or the subject of the duty.
 Contents of the Right – The act or omission which is obligatory on the person bound in
favour of the person entitled. This is called the context or substance of right. It obliges a
person to act or forbear in favour of the person who is entitled to the right. It may also be
known as the substance of the right
 Subject matter of Right – It is something to which the act or omission relates, that is the
thing over which a right is exercised. This may be called the object or subject-matter of
the right. Some writers, although argue that there are certain rights which have no
objects.
 Title of the Right – Salmond has given the fifth element also, that is, “title”. 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”.9

8
http://core.ecu.edu/phil/mccartyr/1175docs/TheoriesofRights.pdf
9
http://www.yourarticlelibrary.com/essay/law-essay/rights-meaning-features-and-types-of-rights/40373

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 6:KINDS OF LEGAL RIGHTS:

Following are the kinds of legal rights:

 Perfect right
 Imperfect right
 Real And Personal Rights
 Rights In Rem And Rights In Personam
 Proprietary And Personal Rights
 Inheritable And Uninheritable Rights
 Rights In Repropria And Rights In Re Aliena
 Principal And Accessory Rights
 Legal And Equitable Rights
 Primary And Secondary Rights
 Public And Private Rights
 Vested And Contingent Rights
 Servient And Dominant Rights
 Municipal And International Rights
 Rights At Rest And Rights In Motion
 Ordinary And Fundamental Rights
 Jus Ad Rem

1. Perfect and Imperfect right

 Perfect right:
According to salmond, a perfect right is one which corresponds to a perfect duty I .e., which is
enforced by law.
Example:
A contract specically enforceable through the Court of law is an example of perfect right.

 Imperfect right:
An imperfect right is that which is recognized by law but cannot be enforced by law due to some
impediment. These may be turn into perfect rights.

2. Postive and negative rights:

 Positive right:
A positive right corresponds positive duty and the person subject to the duty is bound to
do something.

 Negative right:
Negative right corresponds to negative duties. The enjoyment of negative rights is
complete unless such interference takes place.

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 3:Real And Personal Rights:
 Real right:
According to salomond, a real right corresponds to a duty imposed upon persons in
general. It available against whole word. Real rights are generally a negative rights as the
duties which can be expected form the whole world are of a negative character.
Example:
I have a right to be deprived of my life is a real right as it is available against the whole
world.
 Personal right:
A personal right corresponds to a duty imposed upon determinate individuals. It against a
particular person. Personal rights are generally positive right as it imposes a duty on a
particular person to do something.
Example:
I have a personal right to receive compensation form any individual who is any harms
me.

4:Rights In Rem And Rights In Personam:

 Rights in Rem:
It is derived form the Roman term action in Rem” . It is available the whole world Examples are
rights of ownership and possession. My right of possession and ownership is protected by law
against all those who those may interfere with the same.

 Rights in Personam:
It is derived form the Roman term “ action in personam,” Right in personam corresponds to duty
imposed upon determinate persons.
Example:
Rights under a contract are right in Personam as the parties to the contract alone are bound by it.

5:Proprietary And Personal Rights:

 Proprietary Right:
The proprietary rights of a person include his estate, his assets and his property in many forms.
They have some economic or monetary value. They possess both judicial and economic
importance.
Example:
The right to debt, the right to goodwill etc.
‘

 Personal right:
Personal right pertain to man, s status or standing in the law. They promote the man, s well
being. Personal rights possess merely judicial importance.

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 Example:
Right to life, reputation etc are personal rights.

6:Inheritable And Uninheritable Rights:

 Inheritable Rights:
Inheritable rights are those which survives its owners.
Example:
‘A’ dies leaves his property him ‘B’ his legal heir becomes owner of such property. This is an
inheritable right.

 Uninheritable right:
A right is uninheritable if it dies with its owners e. g. personal rights die with its owner and
cannot be inherit.

7:Rights In Repropria And Rights In Re Aliena:

 Rights in Re Propria:
Rights in Re propria are rights in one, s own property. These are complete rights to which other
right can be attached.
Example:
The owner of a chattel has a right in re propria over it.

 Right in Re aliena:
Rights is Re aliena are rights over the property of another person. These rights derogate form the
rights of another person and add to the rights of their holder.
Example:
My right of way across the land another person is a right re aliena.

8.Principal And Accessory Rights:

 Principal rights
Principal rights exist independently of other rights. Accessory rights are appurtenant to other
rights and they have a beneficial on the principal rights.
Example:
‘X’ owes money to ‘Y’ and he executes a mortgage deed in favour of ‘Y’. the debt is the
principal right and the security in the form of mortgage is the accessory right.

9.Legal And Equitable Rights:

 Legal Rights:
Legal rights are those which were recognized by common Law Court e. g., right to vote etc.

 Equitable Rights:
Equitable rights are those which were recognized by the Court of chancery.

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 Example:
The right of the mortgagor to redeem the property is regarded as a creation of the Courts of
equity and is an equitable right knows as the equity of redemption.

10:Primary And Secondary Rights:

 Primary Rights:
Primary rights are also called antecedent, sanctioned or enjoyment rights. These are those rights
which are independent of a wrong having been committed. They exist for own sake. They are
antecedent to be wrongful act or omission.
Example:
Right of reputation, Right to life etc.

 Secondary Rights:
Secondary rights are also called sanctioning, restitutory or remedial rights. Secondary rights are a
part of the machinery provided by the state of the redress of injury done to the primary rights.
Their necessity arises on account of the fact that primary rights are very often violated by the
persons.
Example:
Rights to obtain compensation for defamation to person.

11:Public And Private Rights: Public rights:

 Public rights:
A public right is possessed by every member of the public. It is between a state and the private
individual e. g. , right to vote etc.

 Private right:
A private right is concerned only with the individuals. Both the parties connected with the right
are private persons e.g., contract entered into by two individuals.

12:Vested And Contingent Rights:10

 Vested right:
A vested is a right in right in respect of which all events necessary to vest it completely in the
owner have happened. No other conditions remains to be satisfied.
Example:
If a valid deed of transfer is executed by ;A; in favour of ‘B’, ‘B’ acquires a vested right.

 Contingent right:
According to paton when part of the in vestitive acts have occurred, the right is contingent until
the appening of all the facts on which the title depends.
Example:

10
https://lawnotes.wordpress.com/2015/10/24/legal-rights-jurisprudence-notes/

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 ‘A’ executes a deed in favour of ‘B’ according to which he entitles to the possession of certain
property when attains the age of 21, the right is contingent right and it will be vested only when
he attains the age of 21.s

13:Servient And Dominant Rights:

 servant right
A servant right is one which is subject to an encumbrance. The encumbrance which derogates
form it may be contrasted as dominant.
Example:
“X” as the owner of certain house a right of way over the land of ‘Y’ , his neighbor. The house
of ‘X’ is the dominant heritage and ‘X’ is the dominant owner. The house of ‘Y’ is the servient
heritage and ‘Y’ is the servient owner.

14:Municipal And International Rights:11

 Municipal rights:
Municipal right are conferred by the law of a country, it is enjoyed by the individuals living in a
country.

 International rights:
International rights are conferred by international law. The subject of the International rights are
the persons recognized as such by International law.

15:Rights At Rest And Rights In Motion:12

According to Holland, when a right is stated with reference to its ‘orbit’ and its “ infringement’,
it is a right at rest. “Orbit’ means the extent of advantages conferred by such right and
infringement means an act which interference with the enjoyment of those advantages. Causes by
which rights are either connected or disconnected with persons are discussed under rights in
motion.

16:Ordinary And Fundamental Rights:

Some rights are ordinary and some are fundamental rights. The distinction between the two lies
that fundamental rights are often guaranteed by the onstitution i. e., right to life, liberty etc.

11
https://www.linkedin.com/pulse/20141117063038-105216481-international-law-and-pakistan-s-domestic-legal-
order
12
https://www.slideshare.net/a1a2amu/types-of-legal-rights-under-jurisprudence

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 17:Jus Ad Rem:13
A jus ad rem is a right to right. It is always a right in personam.
Example:
If ‘A’ sell his house to ‘B’. ‘B’ acquires a right against ‘A’ to have the house transferred to
himself.

ENFORCEMENT OF LEGAL RIGHTS

A legal right may be enforced through a Court of Law that has been established by the State. A legal right
is generally enforced by awarding damages in civil cases. IF damages don’t suffice, the object itself may
be restored. Specific performances may also be ordered by the court. Alternatively, the court may grant an
injunction for the enforcement of a legal right. The law of injunction is mentioned in Specific Relief Act,
1963. It is a prohibitive writ which restrains a party from doing an act that affects the plaintiff from
enjoying his legal rights14

References:

 https://www.legalbites.in/rights-duties-jurisprudence/
 http://expertlegalreview.com/legal-rights-jurisprudence/
 https://www.civilserviceindia.com/subject/Political-Science/notes/rights-meaning-and-
theories.html
 http://right-mu.blogspot.com/2009/12/classification-of-legal-right.html
 https://en.wikipedia.org/wiki/Natural_and_legal_rights
 http://enotes.com.pk/legal-rights-and-its-kinds/
 http://core.ecu.edu/phil/mccartyr/1175docs/TheoriesofRights.pdf
 https://www.ukessays.com/essays/human-rights/interest-theory-of-rights.php?vref=1
 Bentham, J. (1987) Anarchical Fallacies, in, Waldon, J. (Ed.) Nonsense upon Stilts New York:
Methuen
 https://thelawdictionary.org/jus-ad-rem/

13
https://thelawdictionary.org/jus-ad-rem/
14
https://www.legalbites.in/rights-duties-jurisprudence/

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