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Rights and Duties

INTRODUCTION:
Right generally means an interest or facility or a privilege
or immunity or a freedom.
Austin in his theory has separated right- which is term of
legal right. Legal right is recognised by law. It is different
from moral right. Moral right if violated is called moral
wrong. The violation of natural right is called natural
wrong. But these wrongs are not remedial under law while
if a legal right is violated then it will be legal wrong which is
remedial under law. The different jurists have defined legal
right in different ways: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 other than the party
or parties in whom it resides.
According to Salmond :- Right is an interest recognised
and protected by the rule of right. Here rule of right
means rule of law or law of country. When an interest of a
person is protected by the rule of law then it is called right.
Salmond definition involves two points, firstly that right is
an interest and secondly it is protected by rule of right. It
means that it relates to his (person) interest i.e., life liberty,
heath and reputation etc.
According to Holland, Right is as a capacity residing in
one man of controlling, with the assent and assistance of
the state the action of others.
According to Paton : That legal right is that it should be
enforceable by the legal process of the state.

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THEORIS OF RIGHT :- There are two theories of right :
1. WILL THEORY : This theory is based upon the will of
human beings. It says that a right reflects the inner will of
a human being. According to them a person wants o
remain in the world freely and according to his own choice
because a man is born free.
2. Interest Theory:- This theory says that interest is the
base of the right. It is only interest which is recognised by
law. This theory reflects the external nature of the human
beings. Supporter of this theory say that there are many
interests in the world. These interest which are protected
and recognised by law are called right.
ELEMENTS OF LEGAL RIGHT:- Following are the
elements of Rights :1. Subject: here means a person who has right. So there
must be a person for rights
2. Act of Forbearance :- Right means some standard of
action permitted by law. In a right either an act is done or
an act is forbidden. This is also called as content of right.
3. Object:- There must be a object upon which the right is
exercised. Mainly there are three essential elements of
right e.g. Lives in a house. Here : (i) A has the right to live
in the house. (ii) A is subject, house is object and (iii) His
living in the house is act content.
4. Correlative duty: For right there must be a correlative
duty. In the above example A has the right to live in the
house but other persons have correlative duty not to
disturb him.

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5.Title: Salmond gives one more element of rights in the
form of title. He says that a right has got also a title. Title
may be in the form of the owner or co-owner or mortgager
or leaser or buyer etc.
Example If, A buys a piece of land from B. A is the
subject or owner of the right so required. The person
bound by the co-relative duty is persons in general
because a right of this kind avails against the world at
large. The right consists in non-interference with the
purchasers exclusive use of the land.
KINDS OF RIGHTS :- The following are the kinds of rights
1.

2.

Primary right and secondary right : Primary right is


an independent right while secondary right means
dependent right. They are also called as principal
right and helping right or remedial right. Example:A has right of reputation which is his primary and
independent right. If any person defames A then A
has the right of damages against the defamer. This
right of damages is called secondary right or
remedial right.
Positive and Negative Right:- A negative right is

a right for me to be protected from harm if I


try to get something for myself. A positive
right would be my right to have something
provided for me.
If health care is a negative right, then the
state has an obligation to keep people from

preventing me from getting health care and


discriminating against me. If health cares a
positive right, then the state has an obligation
to provide it for me.
2.

Right Rem and Personam:Right in Rem means right against the whole world
while right in persosnam means right against a
definite person.
example: A has not to be harmed by any person. This is
right in rem. On the other hand, A has entered into a
contract with B and B has broken +ve contract. A can
enforce this right against B. This is known as right in
personam.
1. LEGAL AND EUITABLE RIGHT (NATUAL
JUSTICE):The division of right has its origin in England. Legal
right is recognized by Law. While equitable right
has been recognized by natural justice. In England
there were two types of courts: (i) Legal courts (ii)
Chancery courts
.
4. Vested & Contingents Right:- vested rights is of
permanent nature that depends not upon the happening of
an uncertain event. Whereas contingents right becomes
full right only when uncertain events happen according to
the condition.
5. Proprietary and Personal Right:- Proprietary rights
which are concerned with property. A person possessing
any property has the proprietary right over it, and personal

right means the right related with a person or a body.


Every person has a status. He should not be injured or
defamed. If any person injures or defames another person
then the wrong doer infringes the personal right of a
person.
6. Perfect or Imperfect Right:- These rights which are
enforceable by law are perfect and which law does not
enforceable are imperfect rights.
7. Right of Re-propria and Right in re-aliena- Right in repropia means the right in ones own thing whereas right in
re-aliena means the right in the things of others.
Duty
Introduction:- The term duty may be used in various form
as an obligation, as responsibility and accountability.
There are some scolers who define Duty as following:Definitions of Duty:- According to Gray, Duty is the act of
or forbearance which an organized society used to impose
on people through state in order to protect the legal right
of other. According to Rose Duty is the Pre-dicament of
person whose act are liable to be control with the
assistance of the State. As per Hoffield The duty is the
correlative of Right.
Classification of Duties:- Duty classified into two
categories. There are as follows:Duties types:

1. Positive and Negative Duty:- A positive duty are those


which the law obliges to do for example citizen duty to pay
tax. Negative duty implies some forbearance on the part of
the person on whom it is imposed.
2. Primary and Secondary duty:- A primary duty is that
which exists itself and independent of other duty. A
secondary duty is that duty whose purpose to enforce
some other duty.
Essentials of duty:- There are following essential of duty:a. It may be dependent and independent.
b. It consists an obligation on the part of someone and
confirm a privilege upon other.
c. The concept of duty is affirmed and protected by the
law of the land where it exist.
d. The concept of duties is a changing process which
arises from time to time, place to place and circumstances
to circumstances.
e. Duty in most of the cases creates an absence of right
against some person.
f. Duty may be fundamental, legal or moral in
character.
Relation between Right and Duties:- The following objects
describes the correlation between right and duties:i.
A right is necessary without any duty.
ii. A duty and right has separate and independent
existence.
iii. A right procreates duty and vice-versa.
OR Your

choice

Even though right and duties are opposite points but there
is a great relation between two relations. The right and
duties has a relation of Father and Child, Husband and
Wife because there is no father without child and no wife
without husband. So right and duties cannot be separated
form each other.
Conclusion:- Right and duties are correlative of elements
of each other. There is no right without duty and there is
no duty without right. These are recognized by law for
maintaining the society very well