Define ‘Right’ and discuss the essential elements of legal right.
Category : Jurisprudence – II
What is a ‘Legal Right’? Discuss the characteristics of a legal right.
Right generally means an interest or facility or a privilege or immunity or a freedom. In this way right for the purpose of jurisprudence is called legal right. Austin in his theory has separated the subject matter of jurisprudence from morality or materiality. He gave the concept of positive law. So here also right means positive law right only, 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 violatin 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. Grey has criticised the interest theory propounded by Salmond, Ihering and Heck and he has supported the view that right is not an interest but that means by which the interest is secured.
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.” He however says that there are three exceptions to this rule :-
- It is not necessary that the state should always necessarily enforce all the legal rights.
- There are certain rights which recognised by law but not enforced by it for example : In a time barred debt, the right of the creditor to recover the debt is an “ imperfect right”
- There are certain laws which do not confer right of enforcement to the courts, for example : International Court of Justice has no power to compel enforcement of its decrees under International Law.
THEORIS OF RIGHT :- There are two theories of right :
- 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. Austin, Holland, Halmes and Dovrecognised this theory of right. According to them a person wants o remain in the world freely and according to his own choice because a man is born free.
- 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 :-
- Subject: here means a person who has right. So there must be a person for rights
- 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.
- 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. But some writers give some more elements of right.
- 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. Almost all jurists agree on the point because one cannot exists without the other. Here Austin is not agree to this He says that the duty may be divided into two kinds i.e. (1) Absolute and (ii) Relative.
- 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.
ILLUSTRATION: 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 purchaser’s exclusive use of the land.
KINDS OF RIGHTS :- The following are the kinds of rights :-
- 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. ILLUSTRATION:- ‘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:- Positive right is linked with negative and negative right is linked with duty. Positive right permits to do an act while negative right prohibit doing an act.
ILLUSTRATION:- ‘ A ‘ has the right of reputation. This is his positive right and any person should not defame him. The defaming his reputation called negative right.
- Right Rem and Personam:- Right in Rem means right against the whole world while right in persosnam means right against a definite person.
ILLUSTRATION: ‘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.
- LEGAL AND EUITABLE RIGHT (NATUAL JUSTICE):- The division of right has its origin in England. Legal ight is recognised by Law. While equitable right has been recognised by natural justice. In England there were two types of courts: (i) Legal courts (ii) Chancery courts
Chancery Courts recognised the conquerable rights on the basis of justice, equity and good conscience.
- Vested & Contingents Right:- These rights is of permanent nature that depends upon the happening of an uncertain event. Thus contingents right becomes full right only when such uncertain events happen according to the condition.
- 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.
- Perfect or Imperfect Right:- These rights which are enforceable by law are perfect and which law does not enforceable are imperfect rights.
- Right of Re-propia and Right in re-alena:- Right in re-propia means the right in one’s own thing whereas right in re-aliena means the right in the things of others.