Jurisprudence of Legal Rights and Duties

 Suman Acharya

Abstract
Rights and justice are interchangeably used in many respects, which are entitled by the person who can
carry it. Justice administration is established for the protection of rights and continuity of duty.
Jurisprudence deals with the issues of rights or duty. All legally permitted actions are rights whereas duty
refers to no wrong. Respect to the right holder is the duty. There are human rights, fundamental rights,
legal rights, and moral rights etc. Elements of Legal rights are subject of right, subject of duty, content of
right, acts, and title. There are three theories of rights and duties as will theory, interest theory and state
protection theory. Will theory accepts every person as sovereign in micro level, interest theory regards
rights as legally protected interest and obligation and state protection theory assumes that all the rights
are the concession granted by the state through law. Hence, legal rights can define as right in rem and
right in personam, personal right and proprietary right, positive right and negative right, principal right
and accessories right, perfect right and imperfect right, right in repropria and right in realiena, vested
right and contingent right, legal right and equitable right, corporeal right and incorporeal right,
antecedent right and remedial right, primary right and secondary right, fundamental right and legal right
etc. Duty exists where right exists so the classification of legal duty is similar as legal rights. Stoics
followed the concept of religion as humans have only duty but not of rights. Duguit also argues for same.
For the Scandinavian Realist, rights, duties, obligation and justice are metaphysics; so they are
meaningless. However, there are both right based approach and duty based approach accepted in
contemporary society. Rights and duties are crucial part of legislation and case law. Ultimate purpose of
law is either determining rights or duties. According to Hohfeld, rights and duties are classified into jural
correlative, jural contradictory and jural opposite. There are vivid forms of rights i.e. claim/rights,
liberty/privileges, power and immunity whereas forms of duty varies as duty, no right, liability and
disability etc. However, all the jurisprudence addresses the method of determining rights and duties of the
people. For Dworkin, a right performs as a trump and for John Rawls it refers to liberty and distributive
justice. Nevertheless, rights and duties are essential building blocks of legislation and case law to resolve
dispute among various parties and essence of the law.
Introduction
Rights and justice are interchangeably used in many respects, which are entitled by the person
who can carry it. Justice administration is established for the protection of rights and continuity

 Advocate/Nepal (LL.M. in International Law)

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of duty. Jurisprudence deals with the issues of rights or duty. All legally permitted actions are
rights whereas duty refers to no wrong. Respect to the right holder is the duty. The word ‘rights’
is derived from Latin word 'Jus' which is either refers to rights or justice. Rights and duties; both
are co-relatives and the absence of one another cannot be sustain.
For Holmes, legal rights are nothing ‘but a permission to exercise to certain natural power and
upon certain conditions to obtain protection, restitution, or compensation by the aid of public
force.’1 Contemporary jurisprudence understands only legal rights, which is the basic concept of
law and philosophy. Rights are used as interest to impose the corrections of duties. Many scholar
associates rights in terms of human rights, fundamental rights, legal rights, and moral rights as
below.
 Human Rights: Human Rights, as all the natural rights of human beings, are the gift
granted by law of nature, which are inalienable to human beings.
 Fundamental Rights: Fundamental rights as guaranteed under the constitution are
applicable only to the citizen of the country. The base of fundamental rights is civil
liberty.
 Legal Rights: Rights which are guaranteed under parliamentary law is legal rights. It is
the issue of both civil and criminal justice.
 Moral rights: Inner feeling of mankind which is recognized by the religion and custom
is the issue of moral rights. Norms and values are the base of moral rights which is
enforced by society not by state. Throughout moral rights state law is created.
Elements of Legal rights
All the jurisprudential issues and methods are revolving around rights and duties of the people
and authority. Despite the existence of moral rights, all rights are legal in nature in contemporary
time. According to Salmond, every legal right has following elements:2
 Subject of right: A person, who is entitled rights, is subject of rights.
 Subject of duty: Every right consists of corresponding duty works on behalf of right
holder.

1
Jerry Ukaigwe, 2016, Ecowas Law, Springer, p.5.
2
Vide Rajitbhakta Pradhananga and Kishor Silwal, 2055, A General Outline of Jurisprudence, Kathmandu:
Kantipur Offset Press, pp.136-137.

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  Content of right: It is the matter of rights which is reflected in objective and content of
right.
 Acts: The right is exercised through over act i.e. the act or omission which can be object
or subject matter of the right.
 Title: Every legal right is vested on its owner, which is against some person. It refers to
some acts or omission which results claim against non obedience.
Theories of rights
There are different approached of rights and duties which are as below.3
 Will theory: In micro level, each person is the sovereign to reflect in self-expression or
self-assertion. Even state cannot interfere in personal assertion of the individual. The
contributors of this theory are Pollock, Vinogradoff, Austin, Holland, and H.L.A. Hart.
 Interest theory: The proponent of this theory is Ihering, who defined rights as legally
protected interest. The purpose of person creates interest which is protected under law.
Interests are created by the community; not by the state. Leading philosopher of interest
theory are Salmond and Roscoe Pound. They reject will theory.
 State Protection Theory: All rights are granted by the state in the form of law. So, rights
are the actions permitted by the state authority.
Classification of rights
Salmond classifies different types of legal rights as under.4
 Antecedent right and remedial right: A right exists independent of any other right is
antecedent right whereas the right is created from the violation of rights will be remedial
rights.
 Corporeal right and incorporeal right: Corporeal rights are rights over physical
property whereas incorporeal rights are rights over intellectual property.
 Fundamental right and legal right: Fundamental rights are the rights guaranteed by the
constitution whereas legal rights are guaranteed under statutory laws.

3
Vide Rajitbhakta Pradhananga and Kishor Silwal, Supra Note 2, pp.138-139.
4
Vide P.J. Fitzgerald, 1999, Salmond on Jurisprudence, (12 th ed.), Bompay:N.M. Tripathi Private Limited,
pp.243-245.

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  Legal right and equitable right: Legal rights are guaranteed underneath parliamentary
law whereas equitable rights are guaranteed by equity law. Equity law is developed as the
alternative form of common law.
 Perfect right and imperfect right: Perfect rights seek perfect duty whereas imperfect
rights seek conditional duty. Perfect rights have direct enforcement whereas imperfect
rights have indirect enforcement.
 Personal right and proprietary right: Personal rights are entitlement of person whereas
proprietary rights means rights of owner of wealth and property. Personal rights may not
have economic value but have dignity and reputation whereas proprietary rights have
economic and monetary values.
 Positive right and negative right: A positive rights are correlative of positive duty
whereas negative rights have correlative of negative duty.
 Primary right and secondary right: Primary rights are basic rights whereas secondary
rights are sanctioning rights.
 Principal right and accessories right: Principal rights are apparent and main rights
whereas accessory rights are petty rights like servitude and lease etc.
 Right in rem and right in personam: Right in rem is the right against the world whereas
right in personam is the rights against specified person. Right in rem is final rights
whereas right in personam is transitory rights. By nature right in personam is contractual.
 Right in repropria and right in realiena: Right in repropria refers to absolute rights
whereas right in realiena refers to partial rights. Right in repropria includes physical and
nonphysical right whereas right in realiena seeks lease, servitude and securities rights etc.
 Vested right and contingent right: Vested rights are direct rights whereas contingent
rights are conditional rights i.e. ownership of house is vested rights whereas collateral
house is contingent rights of the owner.
Argument against Rights
According to Stoics, the concepts of religion limit only on duty but not of rights. Duguit also
argues for same. For the Scandinavian Realist, rights, duties, obligation and justice are
metaphysics; so they are meaningless in law. But both right based approach and duty based
approach are accepted in contemporary time. Right based approach seeks domination of rights of
people whereas duty based approach seeks domination of duty not of rights. Well known theorist

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Ulpian and Dworkin give emphasis on the right-based approach whereas under duty-based
approach, Stoic and natural law philosophers are major. According to Karl Marx both rights and
duties are superstructure for economic exploitation so he rejects it.
Concept of duty
As duty is the correlative of right, it is a legal obligation too. In common parlance, it can be
moral duty, human duty, fundamental duty and legal duty etc. Moral duty is established by social
norms and values, human duty is established under human rights documents, fundamental duty is
the duty under the constitution of the country and legal duty is statutory duty. Duty is
synonymously word of positive act means no wrong. Violation of duty results sanctions taking it
as a wrong.
Types of Duties5
 Antecedent duty and remedial duty: A duty exists independent of any other duty is
antecedent duty whereas the duties are created from the violation of rights will be
remedial duty.
 Corporeal duty and incorporeal duty: Corporeal duties are duty over physical property
whereas incorporeal duties are duties over intellectual property.
 Duty in rem and duty in personam: Duty in rem is the duty to respect ownership of
property whereas duty in personam is the duty to respect the dignity and transitory rights
of a person.
 Duty in repropria and duty in realiena: Duty in repropria refers to absolute duty of
property whereas duty in realiena refers to duty of partial property.
 Fundamental duty and legal duty: Fundamental duties are respect of fundamental
rights of the constitution whereas legal duties are duties established under statutory laws.
 Legal duty and equitable duty: Legal duties are obligation under law whereas equitable
duties are guaranteed under equity law.
 Perfect duty and imperfect duty: Perfect duty refers to complete compliance whereas
imperfect duties are conditional duty or sanctions.

5
It is analogically used in the concept of correlatives between rights and duties cited in P.J. Fitzgerald,
1999, Salmond on Jurisprudence, (12th ed.), Bompay:N.M. Tripathi Private Limited, pp.243-245.

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  Personal duty and proprietary duty: Personal duty refers to the duty to respect
personal entitlement whereas proprietary duty refers to the duty to respect economic and
monetary values.
 Positive duty and negative duty: A positive duty implies positive act whereas negative
duty prohibits particular actions.
 Primary duty and secondary duty: A primary duty refers to absolute duty independent
of other whereas secondary duty is the duty resulted from the violation of duty.
 Principal duty and accessories duty: Principal duty is main duty whereas accessory
duties are petty duty like respect to servitude and lease etc.
 Vested duty and contingent duty: Vested duties are direct duty whereas contingent
duties are conditional duty.
Relationship between right and duties
Rights and duties are essential part of legislation and case law. Ultimate purpose of law is either
determining rights or duties. The purpose of justice is also recognizing rights and enforcing
duties. Rights and duties are correlative; absence of one next cannot sustain. They are
correlative, reciprocal and interdependence. Paton argues that we cannot have a right without a
corresponding duty or a duty without a corresponding right. Holland states active or passive
rights which depend on wishes of the right holder. Every right must involve a vinculum juris,
which is a bond of regal obligation.
Austin enforces on absolute and relative duty. For Austin right cannot be vested on indeterminate
or a vague entity i.e. society, people etc. Sovereign establishes rights and duties of the people and
authority through command. Austin classifies duties in the form duties not regarding persons i.e.
God and lower animal; self-regarding duties and duties owed to the sovereign. Duty to God is
not a legal duty. Legal duty on animal can be created on behalf of owner and community duty is
the list of bundle of duty. Self regarding duty is also like the duty to state because suicide is a
crime.
Wesley Newcomb Hohfeld’s analysis of rights

For Hohfeld, right must include claim, liberty, power and immunity and duty must include duty,
no right, liability and disability. Rights have different meanings in different contest i.e. moral,

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political, economic or legal etc. Different vocabulary of rights and duties are used. Hohfeld
solved the problem of various concepts of rights and duties as under.6

Claim/Right Privileges/Liberty

Duty
No right

(Figure No. 1)

Power
Immunity

Liability
Disability

(Figure No. 2)

 Jural Correlative: Vertical relation of the figure shows correlation between right and
duty, where at least one counterpart person is necessary i.e. one person has right and
another person has duty. In the absence of one, no concept of right or duty will be
existed.7
Jural Correlatives Claim/Right Privilege Power Immunity
Duty No right Liability Disability
(You Ought) (I May) (I can) (You Cannot)

6
Vide Dias, R.W.M., 1904, Jurisprudence, Aditya Books Pvt. Ltd., pp.24-43.
7
Ibid, p.24.

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  Jural contradictory: In jural contradictory, horizontal line of the figure depicts the
relationship between claim/right and privilege and so on and so forth. These two elements
of rights cannot be existed in a same point of time parallel because they are contradictory.
It means if somebody has right, another person does not have privilege and vice-versa at
a same time period.8
Jural Contradictory Claim/Right Duty Power Liability
Liberty/Privileges No-claim Immunity Disability
 Jural opposite: Jural opposite depicts the relationship of right and duty which cannot be
existed upon same person i.e. privilege with 'A' means 'A' does not have duty. Privilege
and duty cannot be existed with a same person at a same time.9
Jural Opposite Right Privilege Power Immunity
No-right Duty Disability Liability
Criticism of Hohfeld Scheme of Rights
Ronald Dworkin argues that rights refer to equal respect and concern of the people which are
received from history and social institutions reflected in rules, principles and policy. He
describes that rights are trumps, which protects individual from interference from society.
Ultimately court protects the rights of people through adjudication and principles. Sometimes
community morality can be the subject matter of rights.10
Ihiring and Roscoe Pound supported rights as a balancing of interest which involves a process of
reconciliation, harmonization and compromise. For Jeremy Bentham, law targets greatest
happiness of the greatest number of people which try to maximize reward and minimizes pain in
the form of punishment. Rights and duties are the standard for pain and pleasures. Human being
tries to maximize happiness and to reduce pain. For J. S Mill, the individual should have liberty
in qualitative basis.
John Rawls argues that the status and interests of the individual are more important than the
goals and basic liberty of citizen must not be restricted for the sake of greater material benefits
for all. Rawls says liberty may only be restricted for the sake of a greater liberty for all. Liberty
and distributive justice are maintained in lexical order.

8
Id.
9
Id.
10
Vide Prof. Hillaire McCoubrey and Dr. Nigel D. White,1993, Textbook on Jurisprudence (3rd ed.),
Blackstone Press Limited p.157-177.

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Rights and duties in Nepal
Nepal accepted moral rights for a long period of time based on religious scriptures and customs.
Later, many norms and values of the society are codified and legal rights under codified law
have been established. Fundamental rights are existed only after 1948, which have been
enshrined in current constitution of Nepal in sophisticated format.
After the membership of UN, Nepal started to ratify international instruments of human rights
which are binding for it. Currently Nepal is in the process of reformation of existing laws and
regulation, which have been established different rights and duties under the scope of
parliamentary law. Delegated laws have also established rights and duties in Nepal. Courts are
deciding on the matters of rights and duties of the people.
Cases laws in Nepal
All case laws of the court either establish rights or duties. Some of the examples are as under.
 Babi Thapa vs. Government of Nepal: No authority or entity can reject or delay the
performance established under existing law once it is claimed under due process of
evidences. It is the issue of citizenship because this right has been established under
prevailing law. So, authority has to issue citizenship if so is requested with due process.11
 Government of Nepal vs. Prahar Dhungana: Even the admission and confession of the
offence has to be supported by independent evidences and proof. Based only on the
statement of admission and confession made in court, no crime and criminal liability can be
established. It is the issue of murder and burglary.12
 Madan Gopal Maleku vs. Gobindaman Shrestha: There is universally established
jurisprudence that long term possession can establish ownership but there must be informed
knowledge of established adverse possession to the actual owner. However, there must not
be the presence of violence and use of force to establish adverse possession.13
 Shyam Prasad Shrestha vs. District Administration Office, Syangja: There is no doubt
that every person has right to property under the constitution. Government can expropriate
the personal property with due compensation. However, there is established legitimate

11
NKP 2075, Issue 3, Decision No. 9979, p.354, available at http://nkp.gov.np/full_detail/9030, visited on
3/23/2019.
12
NKP, 2075,Issue 3, Decision No.9978, p.546, available at http://nkp.gov.np/full_detail/9029, visited on
3/23/2019.
13
NKP, 2075, Issue 3, Decision No.9976, p.519, available in http://nkp.gov.np/full_detail/9027, visited on
3/23/2019.

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 expectation if government has make expropriation of property and decided for exchange of
similar property to the personal owner as compensation, exchange of property must be
done.14 It creates obligation to the government to fulfill its promises.
Conclusion
Rights and duties are correlatives. In the absence of one, another cannot be sustained. However,
rights and duties are the crucial part of any constitution and statutory law. Even the decision of
court and quasi judicial organ has the responsibility to decide on either rights or duties. Rights
are permitted actions whereas duty means no wrong and compliance of the rights of another.
There are various forms of rights i.e. claim/rights, liberty/privileges, power and immunity
whereas there are various forms of duty i.e. duty, no right, liability and disability etc. For
Dworkin, a right performs as a trump and for John Rawls it refers to liberty and distributive
justice. Nevertheless, rights and duties are essential building blocks to resolve dispute among
various parties and essence of the law.
‘The end…’

14
NKP, 2075, Issue 3, Decision No.9973, p.441, available at http://nkp.gov.np/full_detail/9024, visited on
3/23/2019.

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