Rights And Its Types
The law protects the legal right of every citizen. By being a citizen of the
country, the people are given the legal right. It is the duty of every
individual to protect the rights of each individual.
In general word, it means that the action which is permitted by the law is
called legal right or the act which is recognized or protected by the state is
called legal right. The definition is given by the number of jurists like
Holland, Austin, Pollock.
A legal right is an "interest which is protected and recognized by the rule of
law. It is an interest which has its duty and disregard of which is wrong".
According to Gray:
A legal right is "that power which the man has, to make a person or persons to
do or restrains from doing a certain act or acts so far as the power arises from
society imposing a legal duty upon the person or persons. He states that the
"right is not the interest itself, it is the means to enjoy the interest
In the case of State of Rajasthan vs Union of India, the Supreme Court
stated that "Legal rights in the strict sense are correlatives of legal duties
and legal rights are defined as the interests which the law protects by imposing
duties on other persons. But the legal right in the strict sense means right is
the immunity from the legal power of another. Immunity is no subjection at all".
Essential conditions of legal right
According to Salmond, there are five essential conditions that need to be
The person of inheritance/ Subject of right:
He shall be the person who is the owner of the right. He is the subject of the
legal right. Such a person is called a person of inheritance. Example:-Y
purchase a van for Rs 20,000. Here Y is the subject of the right.
Even in the case when the property is bequest to the unborn child, the unborn
child is the owner of the property even though he is uncertain.
The subject of duty/ the person of incidence:
It is the duty of another person or persons to respect and recognize the right
of the person. Such a person who has a legal duty is called a person of
incidence. Example- If A has a legal right against B, then it is the duty of B
to respect the right of A.
Contents or Subject Matter of legal right:
The subject matter of legal right is an essential element. It deals with the
subject matter of the legal right. It is related to do something or to refrain
from doing certain acts or forbearance. It obligates the person to forbear or
act in favour of the person possessing a legal right. Example-Y purchase a van
for Rs 20,000. Here Y is the subject of the right. The subject matter ( Y) has a
legal right and he can exclude others.
The object of the legal right:
The object of the legal rights is a thing or object over which the legal right
is exercised. Example- A purchases the car for Rs 1,00,000. Here the car is the
Title of the legal right:
The title is the process by which the right is vested or conferred on the
person. It is certain events by which right is acquired from its previous owner.
Example- By purchase or gift or will etc.
Theories Related To The Legal Right
Developed by: Rudolf Von Jhering
Rudolf Von Jhering stated that Legal right is the legally protected interest. He
gave importance to the interest of the people rather than the will of the
people. The main objective is to protect the interests of the people and to
avoid the conflict between the individual interest.
Their interest exists in the life of the community itself. They are not created
by any statute.
Salmond positive view:
He supported this theory but he stated that its enforceability is an essential
He criticized the interest theory on the ground that the interest is not
protected by the state. In order to confer a legal right, it is essential that
interest should be protected and recognized by the state.
He said that this theory is partially correct because a legal right is not an
interest in itself but it is only meant to protect the interests of an
individual. He also stated that legal rights confer the right on the person to
do a certain act / to forbear by imposing a legal duty on them through the
agency of law "state".
Dr Allen view:
It can be said that both the theories are not contradictory to each other but it
is the combination of both the theories. He tried to combine these two theories
by pointing out that the essence of legal right seems to be, not legally
guaranteed power by itself nor legally protected by itself, but the legally
guaranteed power to realise an interest. It can be concluded that both theories
are the essential ingredients of the legal right.
Supported by: Kant, Hegel, Hume
According to his theory "rights is an inherent attribute of the human will". The
purpose of the law is to permit the expression of free will. The subject matter
is derived from the human will.
Rights are defined in the terms of will by Austin, Pollock and Holland.
According to John Locke, "the basis of the right is the will of the individual".
According to Puchta the legal rights gives power to the person over the object
which by means of right can be subjected to the will of the person who is
enjoying the right.
Criticized by: Duguit
According to him the basis of the law is not a subjective will but it is an
objective will. The purpose of the law is to protect only those acts which
further support social solidarity. He further stated that the theory of
subjective right is a metaphysical abstraction.
Classification of Legal Right
Right in rem and Right in Persona
The right in rem is the right available against society at large. For Example:-
a crime committed under I.P.C because it is a crime committed against the state.
Right in Persona means right that is available against an individual. Example
breach of Contract. When there is a breach of contract, the party who has
performed the act files the suit against the breaching party. Right in Persona
is temporary in nature, which can be converted into right in rem. Right in rem
is a permanent in nature.
Positive Rights and Negative Rights
A positive right is a right when some action needs to be done by the person who
has the corresponding duty. The person on whom the duty lies must perform some
The negative rights are the rights which omit the person from performing certain
acts. Negative rights correspond to negative duty. The person on whom such duty
is imposed is restrained from performing certain acts.
Personal and Proprietary Rights
Personal rights are the right to respect the owner of the right. The personal
right has no economic value and this right is related to personal status or well
being. Example the right to live with dignity, the right to freedom of speech
The proprietary right is given in respect of the owner of the property. These
rights are rights which has some monetary value or economic value and constitute
the estate of the person. Example-patent rights, right to land, debt etc.
Perfect and Imperfect right
Perfect rights are protected and recognized by law and the suit can be
instituted in the court against the wrongdoer for the breach of it. Example: A
has taken the loan from B. B has the duty to pay the loan and A has the perfect
right to claim the loan amount. If B fails to pay then A has the right to file
the suit in the court.
Imperfect rights are those rights which are neither recognized nor protected by
law. Example: if the loan becomes time-barred, then he can claim his money back
but it cannot be enforced by law.
Principal and Accessory Rights
The principal right is the most important rights. They are the basic right that
is vested on an individual.
The accessory right is the consequential or incidental right. They are not
important but they are ostensible to basic right.
Right in Re-aliens and Right in Re-propria
Right in Re-aliena is the right available against the property of another
person. Example- The right of easement. It is the result of jurisprudence
concept of dominant heritage and servient heritage.
Right in Re-Propria is the right available in respect of one's own property. It
results in absolute ownership. This is the result of jurisprudence concept of
Corporeal and Incorporeal right
Both the rights are protected by law. The corporeal right is the rights over
tangible objects or material objects. Corporeal rights are having the rights
over the objects which can be seen, touch or perceived. Example: I purchase the
watch. The watch has physical existence so I have a corporeal right over it.
The incorporeal right is the right over the object which cannot be seen or
touched. Example right to reputation.
Legal and Equitable Right
Legal rights are protected by the common law i.e Court of England. Common law
depends upon the usage and custom.
Equitable rights are protected by the equity court or the court of chancellor.
The basic principle is natural justice, equity, justice and good conscience.
Primary and Sanctioning Rights
The primary right is important and is a very basic right. These rights are ipso
facto. These rights are independent in nature. It has a binding force. They are
right in rem. Example: the right to reputation. If these rights are infringed in
such case a person can approach the Courts of Law. A legal remedy is available
against such right in the form of compensation or imposing a penalty or
Sanctioning rights are resultant rights. They are supporting rights to primary
rights. They are right in persona, which results from some wrongdoing. Example:
it arises when there is an infringement of primary rights.
Public and Private Rights
The public right is the right that is exercised by the State. Example- right to
vote, right to use road etc. The private right is exercised by an individual for
his personal benefit. Example:- right to sleep, right to clean water.
Vested and Contingent Rights
A vested right is a right which is vested on the person from the very beginning.
No events are required to take place for conferring the rights of an individual.
It depends on the present situation.
Contingent rights are rights which are conferred on the happening or
non-happening of certain acts. This right depends upon future acts. If the act
which is prescribed take place then only the right will be conferred on the
How Legal Right is Enforced
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.
When the right is given to the person then it is assumed that certain duties are
also imposed on the person. The right has its correlative duties. There are two
kinds of duties when it is the obligation of the person to perform his duty when
he has a legal duty but in case of moral duty he has no obligation. It is on the
discretion of an individual. The duties are classified into absolute and
relative duty, positive and negative duty and primary and secondary duty.
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