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Concept of Right and Duty - VI Sem
Concept of Right and Duty - VI Sem
Concept of Right and Duty - VI Sem
Course:
Jurisprudence (LAW 350)
B.A.LL.B. (Hons.) 6th Semester
Concept of Right and Duty: Introduction
The development of society is credited to the constant evolution of law. Everyone in
the society has certain rights and duties obligated towards one another.
A right and duty are the pillars of law, and are protected and enforced by law and one
cannot long talk on a legal topic without using the words right and duty or some
synonyms.
Human beings spend much time in claiming about his “rights”, asserting their
existence, complaining of their violation, describing them as present or future, vested
or contingent, absolute or conditional, perfect or inchoate, alienable or inalienable,
legal or equitable, in rem or in personam, primary or secondary, moral or jural,
inherent or acquired, natural or artificial, human or divine.
Rights and duties have a close relationship and both are inseparable. Both are existing
side by side. One can say that right and duty are the two sides of the same coin.
These are two basic concepts without understanding these you can not understand
concept of law.
Concept of Right
‘Right’ in its ordinary sense means standard of permitted action within a certain sphere.
In legal sense, it means the standard of permitted action by law. Such permitted action of a
person is known as his legal right.
A legal right is different from a moral or natural right. A legal right is an interest recognized and
protected by a rule of legal justice. Moral or natural right means an interest recognized and
protected by a rule of natural justice. It is an interest the violation which would be a moral
wrong, and respect for which is a moral duty.
The difference between these two lies in the sanction behind them. The violation of a legal right
is redressed by the state whereas behind the moral rights there are only moral and social
disapprobation.
Moral Right and Legal Rights: Prof. Holland distinguishes between legal right and moral rights
as: If the pubic opinion would view with approval or at least with acquiescence, a person
carrying out his wishes, with disapproval any resistance made to his doing it, then he has a
moral right to carry out his wishes.
If state protects him in so carrying out his wishes, and will compel such acts or forbearance on
the part of other people, as may be necessary in order that his wishes may be so carried out, then
he has a legal right to carry out his wishes.
Meaning of Legal Rights
When we discuss concept of right, we generally discuss concept of Legal Rights.
John 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.
Example- law prohibits cruelty against animals, so it protects interest of animals, but animals do not possess any legal
rights as there is no recognition of interest of animals.
Gray defines 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 further states that the right is not the
interest itself, it is the means to enjoy the interest secured.
Supreme Court of India explained concept of legal right in the case of State of Rajasthan
v. Union of India (1977) as: legal rights are correlatives of legal duties and are defined as
interests whom the law protects by imposing corresponding duties on others. 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.
Theories of Legal Rights:
There exist two main theories of legal rights –
1. Will Theory, and
2. Interest Theory.
Will Theory: It states that right is an inherent attribute of the human will. The purpose
of the law is to allow the free expression of human will. This theory was advocated by
scholars like Hegel, Kant, Hume etc. The subject matter is derived from human will.
Austin, Holland and Pollock define rights in terms of will. According John Locke the
basis of the right is the will of the individual. Puchta defined the legal right as a power
over an object which by means of right can be subjected to the will of the person
enjoying the right.
• Despite its wide acceptance, there were many scholars who disagreed with it. Some of
the criticisms were from Duguit who is opposed to the “will” theory. According to him
the basis of law is the objective fact of “social solidarity” and not the subjective will.
The law is to protect only those acts or rights which further “social solidarity”. He
calls the theory of subjective right as a mere metaphysical abstraction.
Theories of Legal Rights
Interest Theory: It was proposed by the German Jurist, Rudolf von Ihering. He defined rights as
legally protected interests. Ihering does not emphasize on the element of will in a legal right. Foe
him the basis of legal right is interest and not will.
The main object of law is protection of human interests and to prevent conflict between
individual interests. These interests are not created by the state but they exist in the life of the
community itself.
Salmond mentioned that enforceability is also an essential element. He says that rights are
concerned with interest, and indeed have been defined as interests protected by rules of right, that
is by moral or legal rights.
Salmond criticise it as it totally overlook element of recognition by state. Gray is of opinion that
it is not interest itself rather a means of protection of interest.
Both these theories are not opposite to each other, it is rather a combination of both the theories.
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. Thus, it would be sensible to say that both will and
interest are essential ingredients of a legal right.
Thus, Concept of Legal Right could understood in better way by understanding both the theories.
Essentials of Legal Right
According to John Salmond, each legal right has five essential elements: