INTRODUCTION

The concept of right has certain unique features which make rights so especially valuable as to
be a virtually indispensable element of any acceptable social order.

Various writers have mentioned the features of rights which make them uniquely valuable. Some
of these features are: -

1) Because valid claims of right trump appeals to what would maximize social utility, rights
provide the strongest protections for individuals and minorities.
2) A moral (or legal) system that included no provision for compensation to those whose
interest have been invaded would be a very defective system, but compensation is
appropriate only where right has been infringed.
3) Rights enable us to distinguish between those moral principles that can justly be
enforcement and those that control.
4) The concept of a right expresses the idea that something is owed to the individual, that a
certain performance or certain forms of non-interference are his due or that he is entitled
to them. Consequently, in a moral (or legal) system that lacked the concept of a right,
individuals could only make, request or beg or ask favours, they could not demand
certain treatment, but would be at the mercy of the generosity of personal whims of
others.
5) Respect for persons simply is, or includes, recognition of the individuals status as a
holder of rights. In a system in which such recognition is lacking, respect for ones self
and others as persons is impossible, and to fail to respect persons as such is a grave
moral defeat.
6) A unique feature of rights is that the right holder may either invoke or not invoke or
waive his right. This feature of right is more valuable than principles that merely state
obligations or other moral (or legal) requirements.

In the field of law right is a fundamental concept. 1 However, the concept of right, like many
other concepts of law, does not carry one meaning and jurists differ about its exact connotation. 2
In its most general sense it means a reasonable expectation which one entertains. In its strict

1 In the words of B. A. Wortley, rights are recognized in any legal order.

sense, it has been used as an interest correlated with duties. In its wider sense it is identified with
the power, with privileges and with immunity.

A legal right is different from other rights like moral or natural rights. Natural rights are defined
and sanctioned by the law f nature while legal rights are defined and sanctioned by the law of the
state. A moral right is one that is recognized by the people in general or by the society or by
some moral codes which the particular society follows but it is neither recognized by the law of
the state nor enforced by the power of the state.

Legal rights

Development of the concept of rights: -

2 Irdell Jenkins, The Concept of Rights and Competence of Courts, 18 A.J. (1973 p. 1)
has described this position very aptly.
Greek philosophers were treating social contract as a whole of the just man, of justice as a virtue
rather than as a regime and of laws rather than of law. 3 They had the idea of duty. For them
which is fit becomes duty and gets to be legally recognized as a legally established moral duty.
Rights were not discussed. But there are uses of the word right in literature which cannotes the
idea, using the term for a lawful claim. But there is no clear idea of a right. Like early Greek
Philosophers ancient Hindu philosophers had also talked of the term duty but not of right. In
fact, Hindu law laid more emphasis on Duties than on Rights. They escaped the tyranny of duty
by making observance of duty itself essential for ones own development. Under
Mohmammadan Jurisprudence, Rights (haq) and Obligations (wujub) are the media through
which the law functions. God has authorized men to control each others actions, within
limitations.4

The Roman books distinguished in rem and actions in personam. Buckland says, This
distinction corresponding to our modern classification of rights in rem and personam, was based
not on what seems to us the primary distinction, that between the remedies. 5 The action in rem
was an action for a physical thing. The action in personam was in origin an action against one
who was judicially or formally condemned to a payment so that there was a claim to his person. 6
They came to the means of enforcing rights against the world at large and rights against
particular person respectively. But the Romans did not look at remedies in terms of rights.

Natural law, a postulated ideal system of percepts of universal validity and applicability came to
be held to invoke natural rights.7 These natural rights are moral qualities of man by virtue of
which they ought, in ideal law, to have certain things or be able to do certain things. This
3 Roscoe Pound, op. cit., p. 58.

4 Abdul Rahim (op. cit. p. 5)

5 Text book of Roman Law Buckland, (2nd Ed. 1932), 674.

6 Gains, 3, 174, 4, 1-5, 21-25, Inst. 4, 6 1-14.

7 Grotious, De inre Pacis (1625), 1, 1, 4, Hobbes, Leviathan (1651) Chap. 14;

Dunning, Political Theories from Luther to Montesquieu (1913), 272-276; Ritchi
Natural Rights (1895), Chap. 1-2.
doctrine of natural rights was an outgrowth of Protestantism and was given full political
development by the puritans in 17th Century England, was formulated philosophically by Locke
and set forth as a political dogma in the American Declaration of the Rights of Man (1791).
Since in the theory of natural law whatever ought to be law morally therefore was of itself legal,
the interests which in reason ought to be recognized and secured were by that fact legal rights.
Under natural law these claims or interests were treated as binding beyond the reach of any law
making.8

In the 19th century various expressions were used for the word right. Donnellus had distinguished
ius as law from ius as a right.9 Thus an ethical idea was made to stand out both in ius, law
and in ius, a right. The latter was taken to be the former but subjectively. Ius as law
wasobjective right.10 Since the one word, ius droit, Recht was used for each, there was an
attempt to unify law , and a right in this way. However, English analytical jurists were not
puzzled by any such ambiguity of the word used for a right. Law, a right and right served to
distinguish the legal and the ethical and to differentiate the body of percepts from the reasonable
expectations which they defined and sought to secure. But Austin showed the distinction between
natural capabilities with which the law did not interfere and capacities conferred and seemingly
secured by law.11 Brinz distinguished liberty from power as components of rights, and these led
to setting off a right a liberty and a power as distinct juristic conceptions. 12 Ihering had
distinguished the interest from the juristic conceptions by which it is given effect, although he
thought of a right as a secured interest. 13 Finally Salmond,14 Hohfield15 and Kocourck16 carried

8 Roscoe POUND, OP. CIT., P. 57.

9 De Jure ciuiti, 3, 2-4 (1589)

10 Capitant, Introduction a letude du droit civil (4 th Ed. 1923), No. 2.

11 Jurisprudence by Austin (5th Ed. 1885)

12 I. Panderkten (1st Ed. 1857) 23.

13 Gist des rosmischen Rechts (2nd Ed.) 60-61.

forward the differentiation between right in its strict sense and wider sense which is followed
now.

The concept of right

Even though right is a fundamental concept of law yet jurists are not unanimous in their views
regarding the concept of right.

The natural law jurists like Grotious define right as a moral quality by which a person is
competent to do or have a thing justly. Accordingly, to him it is the function of the positive law
to give effect to this moral quality. This approach emphasizes a moral right and not a legal right
since positive law may or may not give effect to the moral right. The metaphysical theory started
with the assumption that the task of law is to assume the maximum of the free individual self
assertion.17however, lawyers are not primarily concerned with this aspect of right.

Every right has two elements and definitions of right given by different jurists are mostly based
on either one or the other element of rights. These two elements are, the material element of
interest like reputation, property, money, etc. and formal element namely will, capacity, power
to realize the interest, etc.

Those who emphasise the formal element take the view that interest is not right it is merely the
object of a right. The will, capacity, power, faculty to realize the interest is in fact the right.

14 Salmond, Jurisprudence (1st Ed. 1902) Ss. 72, 74-76.

15 Some Fundamentally Legal Conceptions as Applied in Judicial Reasoning (1913),

23; Yale Law Journ, 16.

16 Jural Relations (1927) 1-2, 4-6.

17 Puchta takes this view

Austin18 and Gray19 take the view that right is a faculty or power residing in a determinate party
and parties. This faculty of power enables the person to contract the action of such other which
the debtor has borrowed from me, my right really means my faculty or power to get back the
amount.

Holland defines right as a capacity residing in a person to control the action of others. 20 Holmes
defines right as a permission to exercise certain actual power and upon certain conditions to
obtain protection, restitution or compensation with the aid of public force. 21 All those
(abovementioned) writers viewed right in terms of will, power, faculty, capacity-that is in terms
of the formal element.

Another group of writers defines rights in terms of material element. Thus Ihering says right is a
legally protected interest. According to him law is a means to an end. The end of law is
protection of interest. The law cannot possibly protect all interests, consequently it selects some
and protects some. It is these protected interests which constitute right. Salmond, who also
defines right in terms of the material element, differs from Ihering. He points out that when law
prohibits the killing of animal it does protect the life and therefore the interest of the animal but
the animal does not have a right. The society may have an interest or the owner of a animal may
have interest in the life of an animal. When law prohibits the killing of animal of both and
consequently right in this case vests not in the animal but in the society or the owner. Salmond,
therefore, defines right as an interest recognized and protected by law. The interest which law

18 Austin (op. cit., p. 344) defines right as a faculty which resides in a determinate
party or parties by virtue of a given law and which availed against a party or
parties, other than the party or parties in whom it resides,

19 Gray ( op. cit., p. 10) observes that the right is not the interest itself; it is the
means by which enjoyment of the interest is secured. It is the power to get the
money from Balbus or the power to leave the room, not the payment of the money
or the leaving of the room.

20 Holland ( op. cit., p. 83).

21 Holmes, op. cit., p. 214.

protects observes Salmond is a human interest. That which has no effect on human interest has
no consequence in law.

A reconciliation between the two views has been offered by Allen. According to him right is
neither a legally protected interest alone nor a legally guaranteed power alone. Will, power,
capacity, faculty do not operate in vaccum, but devises certain ends. These ends are interests. A
correct definition of right, therefore, must incorporate both the elements of power and interests.
Consequently, Allen defines right as a legally guaranteed power to realize and interest. In an
important case Dane v. State22 the court has also realized the difficulty of explaining the concept
of right. Madras High Court has held that the expression legal right is a difficult concept. The
Court further held that legal right in its strict sense is one which is an ascertainable claim,
unforeseeable before courts and administrative agencies; in its wider sense a legal right has to be
understood as any advantage or benefit conferred upon a person by a rule of law.

Duguit, however takes an entirely different view. He rejects the very notion of right. According
to him the word right must be taken out of the legal vocabulary. The view is broadly accepted
in totalitarian state which subordinates the rights and interests of the individual to that of the
state.

Characteristics of Legal Rights: -

1. Subject: - It is vested in a person who may be distinguished as the owner of the right, the
subject of it, the person entitled, or the person of inherence.

2. Object: - It avails against a person, upon whom lies the correlative duty. He may be
distinguished as the person bound, or as the subject of duty, or as the person of incidence.

3. Matter of content: - It obliges the person bound to an act or omission in favour of the person
entitled. This may be termed the content of the right.

4. Acts: - The act or omission relates to something (in the widest sense of that word), which may
be termed the object or subject matter of the right.

22 AIR 1968 Mad 355.

5. Title: - 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.