UNIT - I

RIGHTS AND DUTIES

• Definition of Rights
• Elements and Theories of Rights
• Kinds of Rights
• Meaning and Kinds of Duties
• Relationship between right and duties
• The word 'Right' is derived from Latin word a
'jus' which refers to either justice or right.
Ultimately all the justices are based upon right
and duty concepts.
Austin Says Right has always a corresponding
duty.
A person can say to have a right only when other
are bound and obliged by law to do something.
Justice Gray observes that the right is not the
interest itself, it is the means by which
enjoyment of the interest is secured.
• Justice Holmes defined right as permission to
certain protection, restitution or
compensation with the aid of public force.
• Ihering says right is legally protected interest.
He says law is a means to an end. Law doesn’t
protect all interest. It protect some selected
interest which constitute rights.
• According to Buckland A legal right is an
interest or an action granted by law.
 Rights and duties
Rights are those claims which are
necessary for the growth of individuals.
Society give recognizations to these claims
and state enforce these claims.
• Right is vague word
• The concept of right is closely linked with justice
• The main objective of the administration of justice
is to protect a person’s right.
• Jurisprudence is concerned with rights which are
recognized by law and enforced by the state.
There are 3 kinds of rights
1. Human rights
2. Fundamental rights
3. Legal Rights
Besides above rights three categories of right can be specified
i.e
1. Legal Rights
2. Moral Rights and Natural Rights
1) Legal Rights are an interest recognized and protected by an
Act or rule by the parliament .
2) Moral Rights and Natural Rights means an interest
recognized and protected by natural justice. As a
jurisprudential point of view an interest violation of which
is moral wrong and respect of which is a legal duty.
Salmond says that, “ Rights are concerned with interests,
and indeed have been defined and interest protected by rule
of right that is by moral or legal rules
 He again says “ a moral or natural right is an interest
recognized and protected by a rule of morality. An
violation of which would be a moral wrong and respect
for which is moral duty. A legal right is an interest,
recognized and protected by a rule of law. An interest
violation of which would be a legal wrong and respect
for which is a legal duty.
According to Salmond right of owner stand in three
aspects
1. Right against persons or some persons
2. Right to some act or omission of person or persons
3. Right over something to which that act or omission
related.
 Nature and characteristics of rights
• Rights are possible only in the society
• Rights are the claims of the individual
• Rights are recognised and enforced by the society
• Rights are not absolute
• Rights are equal for all
• Rights are bound with duties
• Rights keep on changing
• Rights can be used for social goods
• Rights are moral and reasonable
 Element of rights
According to Salmond there are five things existing in every legal
rights.
1) The first essential element is that there must be a person who is
the owner of the right. He is the subject of the legal right. He is
sometimes described as the person of inheritance.
For Instance: if A buys a car from dealer, A have subject of right,
A as owner, so without subject there is no meaning of right.
2) A legal right accuse against another person or person who
under a corresponding duty to respect that right , upon whom
lays the correlatives duty. He may be distinguished as the person
bound, or as the subject of the duty, or a person of incidence
For instance: if A as car owner has right then dealer has duty
3) Another essential element of a legal right is its content of the
right or substance.
For instance: person exclusive right for the content of right. so has
right on car against the whole world.
4) The another essential element is the object of the right, over
which the right is exercise. which may be termed the object of
subject matter of the right.
For instance: Car is subject or object of right, because it exists,
protected and recognized by law.
5) 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.
For instance: The title of right is acquired from its former owner as
gift, inherence, prescription etc.
When we observed view of Salmond, we can find these things his
elements of legal right
• Another example for understanding the element: “A” buys a
house from “B”. In this sense ‘A’ is the person of inherence
‘B’ is the person of incidence.
When ‘A’ buys the house a kind of duty is imposed upon ‘B’
to give ‘A’ the house.
The Subject matter of the right here is the ‘house’.
After ‘A’ buys the house, the content of the right would lie in
the fact that ‘B’ or any other person should not disturb the
peaceful possession and enjoyment of the house by ‘A’.
The title of the right is found in the fact of the safe of the
house.
 Theories of Legal Rights
There are two main theories of legal rights:
1) The Will Theory, and
2) The Interest Theory
3) Social Solidarity Theory
4) State theory:

1) Will Theory:
2) According to the will theory, a right is an inherent attribute of human
will. The subject matter of right is derived from human will.
This theory says that the purpose of law is to grant the individual the
means of self-expression or self-assertion. The definitions of right given
by Austin and Holland lay down that the 'will' is the main element of a
right. Austinian conception of right is based on the sovereign power of
the state. Locke believed in “inalienable right’
 
 Holmes define legal rights as nothing but ‘a permission to
exercise certain natural power.
This will theory has been supported by Hegel, Kant and Humes
and others. The German jurists of the Historical School have also
supported this theory. Puchta has defined legal right as a 'power
over an object which by means of this right be subjected to will
of the person enjoying the right'. 
2)Interest Theory: The interest theory was mainly propounded by
Ihering. According to his theory, a legal right is a legally
protected interest. Ihering has not emphasized the element of
will in a legal right. According to him, the basis of legal right is
'interest' and not will. His definition of law is in terms of
purpose. Law always has a purpose. In case of right, the purpose
of law is to protect certain interests and not the wills or
assertions of the individuals.
3) Social Solidarity theory:
Duguit is profounder of “ Social Solidarity Theory”
According to him will not essential element in law
the real basis of law is social solidarity
Duguit rejects altogether the conception legal
rights. According to him, there is no conflict of
interest between society and the individual.
No one has any other right than always to do his
duty. Duguit goes to extent of saying that the term
‘right’ should be removed from legal vocabulary.
4) State theory:
According to this theory, the state is
omnipotent and all embracing and individual
has no existence independent of the state. All
rights belong to the state and the individual as
such can claim nothing without state.
 Types of Legal Rights
1) Positive and Negative Rights: A positive right is the
one which enables its holder to compel another
person to perform the duty which he corresponds
For example : The right of creditor to receive money
from his debtor is a positive right.
A Negative right is the one which corresponds to a
negative duty; a right not to be harmed/ interfered by
any person. A person is entitled to enjoy the negative
rights without interference  
For Example : Property Rights
2)Right Rem and Right Personam: These terms are derived from
the Roman terms “actio in Rem” and actio in person
Right in Rem means a right against in respect of a thing and right
in Personam means a right against or in respect of a person
A Right in Rem is available against the whole world but a right in
Personam is available against a particular individual only.
A Right in Rem means entire right of person against of the whole
world for instance: right in land, right in house, right in Rem
include able fact, it include the right to personal safety also right
to freedom, right to possession, right to ownership.
Right in Persona it means a claim brought against a specific
person. In another words right in Personam indicate that
person’s definite or specific right in Personam.
For instance: such as abduction of a child or wife
from the custody of her parents or husband is
violation of right in rem.
The distinction between right in Rem and in
Personam is closely connected but not identical
which that between negative and positive rights.
These terms A Right in Rem sometime called a real
right, corresponds to a duty imposed upon
Personam in general; a right in Personam.
Sometimes called personal right, corresponds to a
duty imposed upon determinate individuals.
For example: Right of possession and ownership is
protected by law against all those who may
interfere it- Right in Rem
A right in Personam corresponds to a duty
imposed upon determinate persons
For example: Rights under a contract.
Right of a creditor against a debtor.
Right in Rem are almost always negative. Those
are right to be kept alone. Rights in Personam are
usually positive and negative only in exceptional
cases.
3) Proprietary and Personal rights: Another important distinction is
that between proprietary and personal rights. The aggregate of a
man's proprietary rights constitutes his estate and assets and his
property in many forms. Proprietary rights( Individual property
right) have some economic or monetary values For E.g.: Right to
debt, right to goodwill, right to patent etc. the personal rights of
a person constitutes his status or personal condition.
According to Holland, Proprietary right are an extension of the
power of a person over physical world.”
Personal rights relates to the position of an individual as a citizen
husband or status and standing’. Personal right means his physical
or body right also including his life, liberty , freedoms, personal
right as personal condition, as oppose to his estate. It is relates
with his well being .
• Proprietary right are valuable but personal right are not valuable
• Proprietary rights are the element of the wealth of a man.
• Personal rights are merely element in his well being.
• According to Salmond " the distinction lies in the fact that proprietary
rights are valuable and personal rights are not“

4)Right Re- propria and Right is Re- aliena: Right may be divided into two
kinds, distinguished by the civilians as Jus in Repropria mean and jus in
Re-aliena. The term jus in re-propria and jus in re-aliena were devised by
the commentators on the civil law and are not to be found in the original
sources.
The re-propria right over his own private things, such as private house,
land. In simple words, right in re-propria means own property.
The jus re-aliena a right over the property of someone else.
Right in re-alien means, “the right in the things of other.” After long times
it may changes to the right in re-alien means not our own private
property but another person property possessed by us.
5)Primary and Sanctioning Rights:
Primary rights are those rights which are independent
of a wrong having been committed. They exist for their
own sake
For e.g. Right of reputation, the right of the owner of a
guardian etc, primary right can be either a Right in Rem
or Right in Personam.
A sanctioning right are those rights which arises from
the violation of a primary right. It is only against specific
persons that sanctioning right can be either necessary or
operative, they must be therefore right in Personam.
Sanctioning rights always emphasizes to punish
wrongdoer.  
6) Vested and Contingent Rights:
Vested right is already complete right, where other facts are
not necessary, for instance of rice. Rice is vested right
because it had already cooked not necessary to cook again.
Another example: your pocket money is vested right
because you can spend it without other person interfere.
Vested right means fix right
Contingent right means depend on other fact or
circumstances. Contingent right is conditional right to
achieve these right certain circumstance must be happened.
For E.g: if a valid deed of transfer is executed by A in
favour of B, B acquires a vested right
 
A Contingent right is a right in which only some of
the events necessary to vest the right in the
contingent owner have happen. It is only a condition
is not fulfilled, the right is defeated. It doesn’t create
an immediate interest.
For example: If a property is given to a person on the
condition that he will be entitled to take possession
of it only if he attains the age of 16, the right
acquired is a contingent right. The right fails if the
person dies before he attains the age of 16. Another
example: Contingent right is conditional right son has
full inherent right after his father’s death.
7) Legal and Equitable Rights:
In England there were formerly two systems of law, administered
respectively in the courts of common law and the court of chancery.
Legal rights are those which were recognized by the court of common
law. Equitable right are those which were recognized by court of
chancery, whether legal or equitable own obtain legal recognition in
all courts the distinction is still of importance.
A legal right is the one which exist under the law and an equitable
right one which exists under the supplement of equity. The distinction
between these two are not found in Nepal 

When judicature Acts 1873 have been abolished it, and establishment
Division of High courts. Where both types case have been recognizing,
no discrimination. At the presents time both kinds and rights are
recognized by all court between there procedure is differ.
8) Perfect and Imperfect Right:
A perfect right is the one which corresponds to a perfect duty. So a
perfect right is not only recognized by court by also enforced by the state.
These types of rights are recognized by law and also prescribe remedy.
The right and duties which are recognize by the court but not enforced by
the state are called imperfect rights.

For example: An imperfect right may become perfect Incase of time

barred debt, if the respected person goes to the court within the given
time then such right may be enforced which the becomes a perfect right.

According to Salmon "A perfect right is one which corresponds to a

perfect duty. and a perfect duty is one which is not merely recognized by
the law, but enforced in all fully developed legal systems. However, there
are right and duties which though is not only recognized by the law, yet
fall short of this typical and perfect form".
9) Principle and Accessory Rights
Principle right means granted right the
fundamental rights are principle rights because
they are already approved by constitution. If the
fundamental right is breaches after that need for
accessory right as remedial rights
Accessory right has no single meaning, it is
correlatives with principle right. It is supporting
right of principle right. Without principle right
there is no meaning of accessory rights.
10) Public and Private Rights: A public right is possessed by
every member of the public. When one of the persons
connected with the rights is the state and the other is a
private person, the right is called a public right. A private
right is concerned only with individuals. Both the parties
concerned with this right are private persons. Private
rights are of an infinite variety and are enjoyed by
individual who open to own certain property, who hold a
certain office, who enter into a contract etc.  

11) Ordinary and Fundamental Rights: Common rights are

ordinary right and constitutional rights are fundamental
rights.
 Meaning of Duty
• Duty is the co-relative from right if somebody has right and
another has duty.
• Duty is the opposite from the wrong.
• Duties are generally divided into three parts.
One is moral and another is legal and fundamental
Morally, duty is known as moral obligation in moral aspect.
Likewise, duty is known as legal obligation in legal aspect.
For Instance: Do that work which law ordered and do not that
work which law prohibited is called duty.
Fundamental Duties is correlated with fundamental right.
 
• Duty is species of obligation and it will be helpful to examine first
its function, then its structure lastly its functioning in society.
• A duty prescribes a person's behavior primarily for some purpose
other than his own interest, i.e. it is other regarding. Conduct be
conceived as an omission, an action by itself an action in relation
to circumstances.
• Duty in the non-legal sense may be defined as the moral
obligation to do or omit to do something.
• A legal duty is a legal obligation.
According to Jenks there are three kinds of duties:
1) Universal Duty: Binding on all normal members
of the community
2) General Duty: Binding on classes of normal
persons not voluntarily formed.
3)Particular Duty: Binding on persons who have
voluntarily undertaken them.
• According to Black's Law Dictionary, Duty is a
legal obligation that is owed or due to another
and that needs to be satisfied an obligation for
which somebody else has a corresponding right.  
• According to Salmond
A duty is an obligatory act, that is to say, it is an act
opposite of which would be a wrong. Duties and
wrongs are correlative the commission of a wrong
is the breach of a duty and the performance of a
duty is avoidance of wrong.”
According to Keeton
“A duty is an act or forbearance compelled by the
state in respect of a right vested in another and the
breach of which is a wrong”.
• Austin is of the view that some duties are
absolute. Those duties do not have a
corresponding right.
For example: Duty not to commit suicide,
According to Dias “ A human action which is
exactly conformable to the laws which require
us to obey them”
 Types of Duty

1) Legal and moral duty

A Legal duty is an act, the opposite of which is a legal wrong. It is an act
recognized as a duty by law and treated as such for the administration of justice.
A moral or natural duty is an act, the opposite of which is a moral or natural
wrong.

2) Positive and negative duty

If the law obliges us to do an act, then such duty is called positive duty. For
example:
If A owes some money to B, B is obliged to pay it. In case of positive duties,
with the performance of the duty, the right and duty both extinguishes.
Whereas if the law obliges us not to do an act, then such duty is called
negative duty have duty not to interfere his use of land.
For instance : if A owns a land then other people have duty not to interfere his
use of land ( in case of negative duty, the duty and right both doesn’t
extinguished even after the performance.
4) Primary and secondary duties
The duties which exists independently of any other duty are called
primary duties
For example: Duty not to cause personal injury to others
The duties which has no independent existence but exists only for the
enforcement of other duties are called secondary duties.
For example: Duty to compensate a man for an injury which has already
been done ( it also known as remedial, restitutory or sanctioning duty.
5) Absolute and relative duties
According to Austin, Absolute duties are those duties which do not have
corresponding rights. The breach of absolute duties are criminal wrongs.
Relative duties are those duties which have corresponding rights.
Relative duties are owned to other person other than the one imposing
them. The breach of relative duties are called civil injury which is
readdressible by compensation to the injured party.
Relationship between Right and Duties
• Right and duties are two sides of same coin
• Right and duty is very important element of law
• Right and duty are correlated to each other in a
such a way that one cannot be conceived of
without the other.
• Without right there is no duty and vice-versa
• According to conventional jurist, right and duties
are correlated, reciprocal and interdependence.
• Patin says right and duty are correlated
• There exists an inextrinsible relationship between
these 2 with rights comes the duties (except in case of
absolute duties according to Austin).
• Every right imposes an obligation upon another to
fulfill the right
• The people are under an obligation to perform their
duty otherwise the right of the concerned will be
violated.
• Right always needs someone to perform their duty to
provide the rights.
• We cannot have a right without a corresponding duty or a
duty without a corresponding right.
• When we speak of a right, we really refer to a right duty
relationship between two person, and to suppose that one
can exist without the other is just as meaningless as to
suppose that a relationship can exist between father and
son have existed.
• According to Salmond “ Every right or duty involves a
viniculum juris or bond of legal obligation, by which two or
more persons are bound together. There can therefore be
no duty unless there is someone whom it is claimed; and
there can be no wrong unless there is someone who is
wronged that is to say whose right has been violated.
• Inorder to know the relationship we must
understand the American Realist or
philosopher Wisely New Combe Hohfeld
(1879-1917)
• Hohfeld identified different conception
relation to right. He identified eight different
such conceptions which are as follows:
Note: Liberty is to be understood as
privilege
1) Jural Correlatives:
In the above figure right and duty are
connected vertical lines, which always exist
together. Right means claim right which is
enforced by law. Similarly where person has a
power another person must have a liability.
For example: A claim right to worship which is
provided by constitution B has duty to worship
to A
2) Jural Opposite: in diagram Jural opposition are
connected by diagonal arrows which never held by
one person at the same time. If you have right,
other person can’t say, you have no right. If you
have liberty that time you are free from duty so that
they are opposites.
A has liberty, but same time A has no duty
3) Jural Contradiction: In above diagram jural
contradictories connected by horizontal arrows. A
has Right to worship god, but ‘B’ has no liberty to
stop ‘A’s worship right, other hand, if ‘B’ has duty,
that ‘B’ has no right to do something.
• Right and duties are always correlatives; Right is
enforceable claim, all claim are perhaps not right,
which is enforceable by law that is only rights. So duty
means to obey what the law says.
Suppose A have right to worship god in temple, that time
B h s duty to tolerance
‘A’s worship right, so that B has no right to disturb A,
If B violates rule he may be liable for punishment
according to worship act or through fundamental right.