DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY,

LUCKNOW

HUMAN RIGHTS

PROJECT

LEGAL RIGHTS AND LEGAL DUTIES

SUBMITTED BY: SUBMITTED TO:

HARDIK ANAND Mrs APARNA SINGH

B.A. LL.B. ASST. PROFESSOR

ENROLLMENT NO.: 160101073 RMLNLU

 Table of Contents

INTRODUCTION ............................................................................................................. 3
1.1 LEGAL WRONGS ................................................................................................................ 3
1.2 DUTIES .............................................................................................................................. 4
1.3 LEGAL RIGHTS .................................................................................................................. 4
THEORIES OF LEGAL RIGHTS .................................................................................. 5
2.1 THEORIES OF LEGAL RIGHTS ............................................................................................. 5
HOHFELD’S ANALYSIS OF RIGHTS ......................................................................... 7
3.1 ESSENTIAL ELEMENTS OF A LEGAL RIGHT ............................................................................. 7
3.2 FOUR TYPES OF RIGHTS BY HOHFELD: .................................................................................... 8
HOHFELD SCHEME OF JURAL RELATIONS ......................................................... 9
RELATION BETWEEN LEGAL CONCEPTIONS ................................................... 11
5.1 RIGHTS AND DUTIES............................................................................................................... 11
5.2 PRIVILEGES AND NO-RIGHTS ................................................................................................. 11
5.3 POWERS AND LIABILITIES ....................................................................................................... 12
5.4 IMMUNITIES AND DISABILITIES .............................................................................................. 13
CONCLUSION & CRITICISM .................................................................................... 14
 INTRODUCTION

The real credit of development of human civilization goes to law and its prohibitive process
which apprised man of his rights and duties as a unit of the society. 1 When people come in
contact as members of society, they have certain legal rights and duties towards one another.
These rights and duties are regulated by the law prevalent in the society. It is well known that the
main purpose of law is to protect human interest by regulating the conduct of individuals in the
society. For the attainment of this objective, it is necessary that state should make use of its
physical force for the enforcement of legal rights and punish those who violate these rights.

It, therefore, follows that in all civilized societies law consists of those rules which regulate
human conduct and it is the state which enforces the rights and duties created by such rules. The
conception of right accordingly is of fundamental significance in modern legal theory because
rights are indispensable for all civil societies and are recognized and enforced by the state.

It is to be noted that the term ‘right’ is closely connected with the terms ‘wrong’ and ‘duty’. It
would, therefore, be desirable to refer to them before analyzing the concept of right.

1.1 LEGAL WRONGS

Salmond defines ‘wrong’ as “an act contrary to the rule of right and justice. A synonym of it is
injury, in its true and primary sense of injuria. In its legal sense, it is known as legal injury which
is against law or jus.

Wrongs may be of two kinds namely, (1) Moral wrongs and (2) Legal wrongs.

A Moral wrong is an act which is morally or naturally wrong, being contrary to the rule of
natural justice whereas a legal wrong is an act which is legally wrong, being contrary to the rule
of legal justice and a violation of the law. In simpler words, a wrong is a violation of legal right
(injuria).

1
Subbarao G.C., Jurisprudence (3rd ed.) p. 161.
A legal wrong may or may not be a moral wrong and conversely a moral wrong may or may not
be a legal wrong. For instance, nonpayment of a time-barred debt is a moral wrong but it is not a
legal wrong since the same is not enforceable by law. Generally, recognition of an act as a legal
wrong entails punishment or suppression by the physical force of the state.

1.2 DUTIES

A Duty is an obligatory act i.e., it is an act the opposite of which would be wrong. Thus duties
and wrong are generally co-related. The commission of a wrong is the breach of duty and the
performance of a duty is avoidance of wrong.2

Duties are of two kinds, namely (1) Legal and (2) Moral.

A duty may be moral but not legal or it may be legal but not moral or it may be both moral and
legal at once. Salmond illustrates this by an example. In England, there is a legal duty not to sell,
have for sale adulterated milk whether knowingly or otherwise, and without any question of
negligence.3 Since this duty is irrespective of knowledge and negligence, it is exclusively legal;
and not a moral duty. On the other hand, there is no legal duty in England to refrain from
offensive curiosity about one’s neighbor, even if the satisfaction of it does them harm. Here it is
clearly a breach of moral duty and not of legal duty.4Not to steal is both, one’s moral and legal
duty.

1.3 LEGAL RIGHTS

Sir John Salmond defines right as an interest recognized and protected by a rule or justice. It is
an interest in respect of which there is duty and the disregard of which is wrong. A man has
varied interests but all of them are not recognized by law. Many interests exist de facto and not
de jure; they receive no recognition or protection from any rule of right. The violation of them is

2
Fitzgerald P. J., Salmond on Jurisprudence, (12th ed.) p. 217.
3
The doctrine of constructive mens-rea applies in such cases.
4
Fitzgerald P. J., Salmond on Jurisprudence, (12th ed.) p. 217.
no wrong, and respect for them is no duty. Interests are things which are to man’s advantage,
e.g., a man has interest in his freedom or reputation.

Like wrongs and duties, rights are either moral or legal. A moral or natural right is an interest
recognized and protected by a rule of morality-violation of which would be a moral wrong. For
example, parent’s interest to command respect from their children is their moral right but if
children violate it, it is a moral wrong. A legal right, on the other hand is an interest recognized
and protected by a rule of law, violation of which would be a legal wrong. Thus everyone has
right to privacy in his house and if any person interferes with this right, it would be a legal
wrong.

THEORIES OF LEGAL RIGHTS

2.1 THEORIES OF LEGAL RIGHTS

There are two main theories regarding nature of legal rights. They are (1) The Will Theory, and
(2) Interest theory:

2.1.1 Will Theory of Legal Right

The Will theory of legal rights has been supported by Hegel, Kant, Hume and others. According
to this theory, a right is an inherent attribute of the human will. The subject-matter of right is
derived from human will. The theory suggests that it is through a right that a man expresses his
will over an object. The theory has been also accepted by historical jurists of Germany. Puchta
observed that a legal right is a power over an object which by means of his right can be subjected
to the will of the person enjoying the right. Vinogradoff considers that psychology of asserting
claim is the basis of legal right. In a social order established by law no man is absolutely free to
act as he likes, but his freedom of action is restricted due to rights of others.

According to Austin, right of a person means that others are obliged to do or forbear from doing
something in relation to him. Austinian conception of right is obviously based on sovereign
power of the state. Likewise, Austin defines duty as an obligation the breach of which is
punishable because of the penal sanction attached with it. Justice Holland of U.S.A. pointed out
that a legal right is nothing but permission to exercise certain natural powers to obtain protection
under certain conditions. It has the support of public force for its protection.5

Duguit suggests that will is not an essential element of a legal right or law. The real basis of law
is social solidarity. He calls theory of subjective right as a mere metaphysical abstraction.

2.1.2 Interest theory of Legal Right

Another popular theory regarding the nature of legal right is called the Interest theory which was
mainly propounded by the German Jurist Ihring. According to this theory, “a legal right is a
legally protected interest.” Ihring does not emphasize on the element of will in a legal right. He
asserts that the basis of legal right is ‘interest’ not will. The main object of law is protection of
human interests and to avert a conflict between their individual interests. But Salmond has
criticized Ihring’s theory on the ground that it is incomplete since it completely overlooks the
element of recognition by state. A legal right should not be protected by the state but should also
be legally recognized by it. He cites an example to substantiate this view. The interests of beasts
are to some extent protected by law in as much as cruelty to animals is a criminal offence. 6 But
beasts cannot for that reason be said to possess a legal right of not being treated with cruelty.
Salmond treats the right to protection of animals from cruelty merely as a moral right.

Professor Gray was greatly impressed by Salmond’s view about legal right. He, however, held
that the interest theory was only partly true. He emphasized that a legal right is not an interest in
itself but it is only a means to extend protection to interests. He considers legal right as that
power by which a man makes other persons do or refrain from doing a certain act by imposing a
legal duty upon them through the agency of law (State). Thus, for example, if a man lends some
money to another, the right of the creditor to recover his money from the debtor is, in reality, not
his legal right but it is rather a power conferred on him by law by the exercise of which he
recovers the debt. In other words, the creditor’s interest to get back his money from the debtor is
protected by law but this interest is not a legal right in itself, it is rather his object. It is the power
conferred on him by law to recover the money which is his legal right.

5
Dias & Hughes: Jurisprudence, p. 250.
6
In India, the Prevention of Cruelty to Animals Act, 1960
 HOHFELD’S ANALYSIS OF RIGHTS

Rights claimed in modern society have a contradictory quality about them. We can easily place
strongly affirmed rights in direct conflict. For example, people claim the right to life yet there are
others who claim a right to abortion; people claim the right not to be killed by another, yet there
are also claims to a right to die.These are few examples. The claim to right is thus ultimately a
claim to self-determination, which can produce logical contradictions and is itself in
contradiction to the aspect of social control by law. However, the contradiction is one of degree.
Thus, the issue of rights in the social context is one of balancing conflicting claims and
determining which claims have priority.There are clearly different types of rights but they share
common features. In some extent it’s fair to say that the concept is used ambiguously. However,
all these rights have demonstrated by different philosophers in the separate ways. They are, for
example, MacCormick, Hart, Bentham, Dworkin and Hohfeld.

3.1 ESSENTIAL ELEMENTS OF A LEGAL RIGHT

According to Salmond every legal right has the following five elements or characteristics:-

3.1.1 The Person of Inherence- He is also called the subject of right. A legal right is always
vested in a person who may be distinguished as the owner of the right, the subject of it or the
person of inherence. Thus there cannot be a legal right without a subject or a person who owns it.
However, the owner of the right need not to be certain or determinate. For instance, an unborn
child possesses a legal right although it is not certain whether he would be born alive or not.
Likewise, a right can be owned by the society at large, it is a valid right though the subject of
right is indeterminate.

3.1.2 The Person of Incidence- A legal right avails against a person upon whom lies the co-
relative duty. He is distinguished as the “person of incidence.” He is a person bound by the duty
and so may be described as ‘subject of the duty’.

3.1.3 Contents of the Right- The act or omission which is obligatory on the person bound in
favour of the person entitled. This is called the content or substance of right.
3.1.4 Subject matter of Right- It is something to which the act or omission relates, that is, the
thing over which a right is exercised. This may be called the object or subject-matter of the right.

3.1.5 Title of the Right- Every legal right has a title, that is, certain facts or events which are
events by reason of which the right has become vested in its owner.

Salmond illustrates these elements of a legal right by referring to an example. If A buys a piece
of land from B, A is the subject or owner of the right so required. The person bound by the
correlative duty are persons in general, for a right of this kind avails against the world at large.
The content of right consists in non interference with the purchaser’s exclusive use of the land.
The object or the subject-matter of the right is the conveyance by which it was acquired from the
former owners.7

3.2FOUR TYPES OF RIGHTS BY HOHFELD:

Here, A and B are persons and X is a situation.

 Claim-rights - A has a claim-right against B with regard to X just in case B has a duty to
A to bring about X.

Example: B borrowed $100 from A. So A has a claim right against B that B

returned $100 to A.

 Privileges (liberties) - A has a privilege against B to X just in case B has no claim right
against A not to X.

Example: If A the right (against the Japanese Government) to stay in Japan, then
this is a privilege. It means that the Japanese Government has no claim-right
against A that he leaves the country. Or in other words, A has no duty to the
Japanese Government that he leaves Japan.

 Powers (authority rights) - A has a power over B with respect to X just in case he can
change B's rights with regard to X.

7
Ibid
 Example: The librarian has the power over a student with regard to the use of the
library. Normally a student has the right to use the library. But if a student is noisy
then the librarian has the power to take away that right and stop the student from
using the library.

 Immunities - A has an immunity against B with respect to X just in case B has no power
over A's rights with respect to X.

Example: Diplomats are supposed to have diplomatic immunity. If they have

committed a crime in their host country, they are immune against arrests and legal
prosecution. In other words, the police would have no power over them. (They
can still be expelled though.).

Notice that these four kinds of rights are related to each other, at least in the following ways:

 A claim-right corresponds to the absence of a privilege - Suppose A has a claim-right

against B that B performs some action K. Then B does not have the privilege of not doing
K. For example, if A lends $10 to B, then A has a claim-right against B that B gives $10
back to A. This implies that B does not have the privilege of not giving $10 to B.
 A power corresponds to the absence of immunity - Suppose A has power over B with
respect to a certain right of B. Then B lacks immunity against A with respect to that right.
An example is that an employer has power over its employees with respect to their rights
to enter the company building. The right to enter the building is granted by the employer,
and can be taken away as the employer sees fit. This means that the employee lacks
immunity against the employer with respect to such a right.

HOHFELD SCHEME OF JURAL RELATIONS

The eight fundamental legal conceptions resulted from Hohfeld's dissatisfaction

with the idea that all the jural relations can be reduced to rights and duties. That was
singled out as the main obstacle to comprehension and successful resolution of legal
issues. According to Hohfeld, there are eight fundamental legal conceptions.

 RIGHT- “An enforceable claim to performance (action or forbearance) by another, it is the

legal relations of A to B when society commands action forbearance by B and will at the
instance of A in some manner penalize disobedience.”
 DUTY- “It is a legal relation of a person, B, who is commanded by the society to act or to
forbear for the benefit of another person, A, either immediately or in the future, and who
will be penalized by the society for disobedience.”
 PRIVILEGE- “The legal relation of A to B when A(with respect to B) is free or at liberty
to conduct himself in a certain manner for the benefit of B by the command of society; and
when he is not threatened by with any penalty for disobedience, for the reason that society
has made no command.”
 NO-RIGHT- “The legal relation of a person, A, in whose behalf society commands nothing
of another, B.”
 POWER- “The legal relations of A to B when A’s own voluntary act will cause new legal
relations either between B and A or between B and the third person.”
 LIABILITY- “The relation of A to B when A may be brought into new legal relations by
the voluntary act of B.”
 IMMUNITY- “The relation A to B when B has no legal power… to affect someone or
more of the existing legal relations of A, as to that particular existing relation A has an
immunity with respect to B.”
 DISABILITY- “The relation of A to B when by no voluntary act of his own can A
extinguish one (or more) of the existing legal relations of B.”
 RELATION BETWEEN LEGAL CONCEPTIONS

5.1RIGHTS AND DUTIES

Rights and Duties are the very important elements of law. The administration of justice, in most
part, consists of the enforcement of rights and the fulfillment of duties. Rights and Duties are
correlated to each other in such a way that one cannot be conceived of without the other. In other
words, the existence of the one depends on the existence of the other as there can be no child
without a father and no father without a child. A right is always against someone upon whom the
correlative duty is imposed. In the same a duty is always towards someone in whom the
correlative right vests. There are some jurists who do not agree to this view. They said that there
can be duties without a corresponding right. They call duties as ‘absolute duties’.

Being granted or having a legal right (or a claim according to Hohfeld) consists of
legal protection against other people’s interference or against refusal of providing aid or
remuneration regarding a particular action or a particular state of affairs. A person that is
supposed to abstain from interference or to provide assistance or remuneration is under a
duty to act in that manner. A right or claim is a legal position arising from imposition of a
duty on someone else.8

5.2 PRIVILEGES AND NO-RIGHTS

Hohfeld’s main goal was to clarify the basic difference between rights (or claims)
and privileges.9 The non-distinction between these terms leads to “confusion or blurring of
ideas”.10 He wished to correct the faulty classical viewpoint that privileges are necessarily
accompanied with other people’s duties not to interfere with such permitted actions.11
Consequently, Hohfeld criticized classical analytical writers such as Thomas Holland and John

8
Id
9
Hohfeld, FLC, supra note 16, at 39. See also Singer, supra note 26, at 987.
10
Hohfeld, FLC, supra note 16, at 40
11
Singer, supra note 26, at 1014
Chipman Gray who incorrectly deduced duties from privileges. A privilege as a jural relation
means a bare negation of duties.
Most of the subsequent jurists prefer the term liberty over the term privilege.12 In Hohfeld’s
analysis these two terms have the same structural position, although Hohfeldhimself favoured the
term privilege.
Privileges are permissions to act in a certain way without being responsible for the damage done to
other people who, simultaneously, are not in position to call in the authorities to prevent
such action. As Hohfeld pointed out: “To the extent that the defendants have privileges the
plaintiffs have no rights.” Rights (claims) and privilege cannot be in conflict.
Hohfeld commented John Chipman Gray’s example who, in a chapter called “Legal
Rights and Duties” of his book The Nature and Sources of Law wrote about the property
right:

5.3 POWERS AND LIABILITIES

Whereas the first two pairs of legal positions (“right”/“duty” and “liberty”/“no-
right”) are first order relations, the following two pairs are second order relations
(“power”/”liability” and “immunity”/”disability”). Some first order relations are applied
directly to human conduct and social intercourses, without mediation of any second order
relation. On the other hand, all the second order relations are applied directly to human
entitlements and only indirectly to human conduct and social intercourses.

Pursuant to Hohfeld, a jural relation can be modified in two ways: by means of

facts that are not under the volitional control of one or more persons or by means of facts
which are not under volitional control of human beings. He defined powers by reference
to the second group of cases, a person with the dominant volitional control has a legal power to
effect a particular change of jural relations. Similar to other jural relations, this relation is held
between two persons with respect to particular actions or states of affairs. Hohfeld listed
various examples of legal powers, property-related powers (property abandonment and
power to transfer property), power to create contractual obligation, the creation of agency
relation etc. Liability is susceptibility to someone’s exercising of a power. Deference to a
change within someone’s entitlement is not necessarily unpleasant. A promisee may have a
benefit from an entitlement vested by a promisor, as well as an inheritor.
When it comes to liability, Hohfeld mentioned the position of the people engaged
in a “public callings” such as innkeepers. Unlike the usual perception that innkeepers are
under a duty towards all other parties, Hohfeld emphasized that an innkeeper is under the
liability and travellers are in possession of a correlative power. Therefore, travellers have
a legal power by making an adequate tender to impose a liability on an innkeeper to
receive them as guests. There would be a great fuss if jurist confused Hohfeldian
powers with rights. Simmonds, provides an example wherein a power may be combined
with a duty not to exercise it, which happens when a non-owner has a power to pass title
in property, but will commit an offence while exercising the power. If we describe the
power as a “right”, than we will have to say that the non-owner has a right to sell the
property.

5.4 IMMUNITIES AND DISABILITIES

Immunity is state of being safe from modifications of one’s entitlements by another.13

Disability is a lack of power to change legal entitlements.Powers bear the same general contrast
towards immunities as rights towards privileges. A right is an affirmative claim against
another whereas a privilege is someone’s freedom from the right-claim of another. Similarly, a
power is an affirmative control over a given jural relation as against another while an immunity
is someone’s freedom from a legal power or control of another with respect to some jural relations.
For example, If A has an immunity against B, B is under a disability with respect to
exercising powers referring to entitlements covered by the immunity. Immunity rights
can be frequently found in constitutional texts. Consequently, legislature, if the people
are granted the freedom of speech by the constitution, cannot exercise a power in that
respect. The people have immunity rights to the freedom of speech while legislature is
under a disability.
 CONCLUSION&CRITICISM

Hohfeld himself stressed “the great practical importance of a clear appreciation of

the distinctions and discriminations set forth”.14 The eight proposed terms-rights and
duties, privileges and no-right, powers and liabilities, immunities and disabilities-
represent “the lowest common denominators of the law” to which all “legal quantities”
may be reduced.15 They enable “discovering essential similarities and illuminating analogies
in the midst of what appears superficially to be infinite and hopelessvariety to discern
common principles of justice and policy to use as persuasive authorities judicial precedents that
might otherwise seem altogether irrelevant”.16

Finally, it is important to grasp that Hohfeld’s endeavour is analytical and definitional

rather than empirical or substantive.17 Hohfeld put forth a scheme of jural relations in which
legal positions are connected with each other by purely logical relations of entailment and
negation.18 This is the central feature of his analytical scheme which diminishes all the critiques
involving an empirical denial of Hohfeld’s theses.19Hohfeld’s goal was to provide a precise
analyze of legal rights and thus prevent confusions arising from "inadequacy and ambiguity of
terminology” that refers to the use of rights, liberties and powers etc. in practice
Hohfeld stipulates that the atomic rights elements in his analytical framework are, by definition,
always correlative. His idea that this relationship of mutual entailment between rights and duties
as well as other elements is correlative was not a product of some empirical assessment of the
nature of rights; rather, he presented the notion of correlativity as a definitional foundation of his
analysis. For Hohfeld, it was a matter of logical necessity that there must be some kind of
axiomatic mutual entailment between the rights-elements which is congruent with the notion that
his analysis is stipulative and analytical rather than empirical or justificatory. Given the
axiomatic nature of Hohfeld's stipulation of correlativity, which I will refer to as the
'Correlativity Axiom', one should not attempt to try and refute it by empirical counter-examples
because, as I have shown above, it is not susceptible to such attacks.