MEANING AND DEFINITION

The concept of Right is one of the most important concept of the law. Right has
been derived from the Latin words (rectus) to rectify or correct or from jus, which
means just or justice.

AUSTIN According to this Jurist, Right is nothing but a “Faculty which resides in
a determinate party or parties by virtue of a given law and which avails against the
party or parties (in simple words, answer to a duty lying on a party or parties) other
than a party or parties, whom it resides.” A clear understanding of this definition
will let you know that right has always a corresponding duty.

Holland: Holland somehow follows the definition given by Austin. According to

him legal right is, “capacity residing in one man of controlling, with the assent and
assistance of the state the actions of others.”

ELEMENTS OF LEGAL RIGHTS

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

1) The person of inherence

It is also known as the subject of right. A legal right which is vested in a person
and which may be distinguished as the owner of the right, the subject of it or the
“person” of “inherence”. Hence, there cannot be a legal right without a subject or a
person who owns it. Here, subject means the person in whom the rights are vested.
Therefore, a right without a subject or a person who owns it is inconceivable. The
owner of the right need not be certain or determinate. A right can be owned by the
society, at large, is indeterminate.

2) The person of incidence

A person who is bound by the duty or the subject of the duty is known as the
person of incidence.

3) Contents of the right

The act or omission which is obligatory on the person bound in favor of the person
entitled is known as contents or substance of right.
4) Subject matter of right

It is something over which the acts or omission relates, over which a right is
exercised. This is termed as subject matter of right.

5) 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”.

A popular illustration that was quoted by Salmond satisfies all the above-
mentioned elements of legal rights. It is as follows-

“if A buys, a piece of land from B, A is the subject or owner of the right so
acquired. The persons bound by the correlative right are persons in general, for a
right of this kind avails against all the world. The context of the right consists in
non-interference with the purchaser’s exclusive use of the land. The object or
subject-matter of the right is the land. And finally, the title of the right is the
conveyance by which it was acquired from its former owner”.

Theories of Right
There are basically two main theories of Legal rights i.e. the will theory of right
and the interest Theory of right. Let’s have a brief discussion on both of these
theories.

Will Theory: According to this theory, right emerges from the Human will. The
purpose of law is to grant the individual the means of self expression. “Will’”
Constitutes a main element in the definitions of Austin, Holland, Pollock and
Vinogradoff. A doctrine of Natural Right gives an enormous support to this theory.
The Jurists of Metaphysical Approach are also a staunch supporter of this view.
However Jurists like Duguit has vehemently criticized this theory.

Interest Theory: The Interest Theory was proposed by the German Jurist, Rudolf
von Jhering. Jhering defined rights as legally protected interest. Jhering does’ not
emphasize on the element of will in a legal right. He asserts that the basis of legal
right is “interest” and “not will”. The main object of law is protection of human
interests and to avert conflict between their individual interest. These interests are
not created by the state, but they exist in

the life of the community itself. Salmond supported it but mentioned that
enforceability is also an essential element. He says, “Rights are concerned with
interest, and indeed have been defined as interests protected by rules of right, that
is by moral or legal rights.”

Kinds of Legal Rights

In simple words, the court of law can enforce legal rights against persons and also
against the government. A legal right is an interest accepted and protected by law.
Also, any debasement of any legal right is punishable by law. Legal rights affect
every citizen. Legal rights are equally available to all the citizens without the
discrimination of caste, creed & sex.

I. Perfect & Imperfect Rights

The perfect right has the following features:

1. It is recognized by law.
2. It is enforceable by law. So, in the case of breach of this right, a person
may go to court for enforcing this right.
Thus, all fundamental rights, viz. Right to equality, right to religion, etc. are perfect
rights as these are enforceable by law.

The imperfect right has the following features:

1. It is recognized by law.
2. It is not enforceable by law. This means that a person cannot go to court
for the breach of imperfect right.
All the time-bound claims or debts come under the category of imperfect rights.
II. Positive & Negative Rights
The basis of distinguishing right as positive or negative is the nature of correlative
duty it carries with it. Under Positive rights, the person has to perform some positive
duty to fulfill this right.

Negative rights prevent a person to do some act, that is it corresponds to a negative

duty. Example: Right to life under article 21 of the Indian constitution is a negative
right because it prevents a person to kill another person.

III. Real & Personal Rights

Real right or right in- rem corresponds to the duty imposed upon the people in
general. It is available against the whole world in general. Example: Tort or crime is
a real right.

Personal right or right in-persona is available against a particular person & it

corresponds to duty the duty imposed upon a particular person. Therefore, the
personal right generally arises out of contractual obligation. Example: breach of
contract is a personal right.

IV. Proprietary & Personal Rights

A proprietary right is available with respect to a property that is it relates to the owner
& his assets. The assets must have some monetary value. Example: the right to
ownership of property, Right to patent, Right to goodwill, etc.

A personal right is related to a person’s life i.e. his reputation or standing in the
society. These rights promote a person’s well being in society & have no economic
value. Example: Right to life.

V. Public & Private Rights

The rights which are vested in a person by state or govt. or constitution is called
public rights. Example: Right to vote, Right to use public parks, etc.

Private rights are connected with private individuals or persons. Example: A contract
entered into by two people gives rise to private rights to them.
VI. Inheritable & Uninheritable Rights
Inheritable rights can be passed from one generation to another, i.e. this right survives
even after the death of its owner. Example: A son is a legal heir to the property of his
father after his death.

Uninheritable rights die with the death of its owner. Example: All personal rights are
uninheritable rights.

V. Right in repropria & Right in realiena

A person possesses Right in repropria with respect to his own property. He can use,
dispose of, destroy, modify or exclude others from his property. Thus, this right gives
a person, absolute ownership over the property.

Right in realiena is the right in the property of another person. Example: Right of
way over the neighbour’s field. So, it is not an absolute right.

VI. Principal and Accessory Rights:

The existence of Principle Rights are independent of any other rights but Accessory
Rights are ancillary to principal rights and also have a beneficial effect on the
principal right. For example, if a debt is secured by mortgage, the recovery of that
debt is the principal right and the security will be the accessory right.

Ubi jus ibi remedium which means where there is a right there is a remedy. If the
person’s right is violated that can be approached to the court. They can get relief in
the form of compensation. When the compensation does not satisfy the claim of the
plaintiff then the court may order for the specific performance of the Contract. It is
governed by the Specific Relief Act.