In simple words, it synthesizes with both – th… In general, we discover a particular action is right by checking whether it is consonant with the general legal, social, and ethical principles. These are also called real and personal rights. A duty is an obligatory act. Immediate objects of law are the creation and protection of legal rights… Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the Corpus Juris Civilis (AD 529) ordered by Eastern Roman Emperor Justinian I.Roman law forms the basic framework for civil law, the most widely used legal system today, and the terms are sometimes used synonymously. It is a prohibitive writ which restrains a party from doing an act that affects the plaintiff from enjoying his legal right. Your email address will not be published. Self-regarding duties such as a duty not to commit suicide or not to consume drugs or liquor, etc. A secondary duty is also called sanctioning or a remedial duty. A vested right is a right in respect of which all events essential to vest the right in the owner have happened; while a contingent right is one in respect of which only some of the events necessary to vest the right have happened and the vesting can be complete only on the happening or non-happening of a specified uncertain event. IF damages don’t suffice, the object itself may be restored. Holland – Legal rights were defined by Holland as the “capacity residing in one man of controlling, with the assent and assistance of the state the actions of others.” He followed Austin’s definition, Gray – He defined a legal right as “that power which a man has to make a person or persons do or refrain from doing a certain act or certain acts, so far as the power arises from society imposing a legal duty upon a person or persons.” He states that the “right is not the interest itself, it is the means to enjoy the interest secured.”, Supreme Court of India – The Apex Court of India defined legal right in the case of State of Rajasthan v. Union of India [AIR (1977) SC 1361] as: “In strict sense, legal rights are correlatives of legal duties and are defined as interests whom the law protects by imposing corresponding duties on others. Primary and Secondary Rights 2. It can be said that primary rights exists independently whereas secondary rights have no separate existence and arise only on violation of primary rights. He mentions four kinds of absolute duties:-. The jurists often consider law as a body of authoritative guides that help decision making. Proprietary Rights are rights that are related to a person’s property whilst personal rights relate to one’s body. Such a person is called the person of incidence or the subject of the duty. The law protects cruelty against animals, and to some interest the interest of animals, but animals do not possess any legal rights. In later period it was denoting as a being or an entity capable of sustaining legal rights and duties. It is a right to some act or omission of such person or persons. It considers law as a social and legal institution that can be created and modified consciously. This definition was not widely accepted. He calls the theory of subjective right a a mere metaphysical abstraction. Feminist legal theory produced a new idea of using hedonic jurisprudence to show those women’s experiences of assault and rape was a product of laws that treated them as less human and gave them fewer rights than men. The chief characteristics of Sociological Jurisprudence are as follows: 1. A right without a subject or a person who owns it is inconceivable. A personal right is uninheritable and dies with him. They are to be exercised by the people for their development and hence for the development of society. Salmond – A duty is roughly speaking an act which one ought to do, an act the opposite of which would be a wrong. The subject, in its entirety, differs from other social sciences. Legal positivism typically focuses solely on these abstract problems, and regards issues of moral or political content of law as not part of jurisprudence. Historically, the answer to the question, “what is Law” is thought to have two competing answers. Gray stated that the theory was only partially correct. At the End of the last MCQ of this post, you will find a link to Next MCQs of English Jurisprudence. Salmond says that there can be no right without a corresponding duty and vice versa. States jurisprudence commonly means the philosophy of law. 3. Required fields are marked *. Legal rights are those which were recognized by the Courts of Common Law in England and Equitable rights are those which were solely recognized in the Court of Chancery. A principal right is a primary right of a person vested in him by the law of the land, or through any other legal method. 1. Note: According to Prof.Duguit and Kelson, there is no such concept called legal right. Myneni, Dr. A right is considered as positive or negative depending upon its correlative duty. but in a generic sense, the word ‘right’ is used to mean an immunity from the legal power of another, immunity is exemption from the power of another in the same way as liberty is exemption from the right of another, Immunity, in short, is no subjection.”, Primary Rights are also called antecedent rights. It relates to some act to do or not to do any act or forbearance. It is a right over to something to which that act or omission relates, The terms of ‘person’, ‘act’, ‘thing’ are connected with the term ‘Right.’, A popular illustration that was quoted by Salmond satisfies all the above mentioned elements of legal rights. A private right, on the other hand, is concerned with individuals, that is both the parties connected with it are private p. ersons. The definition of legal rights have been propounded by several famous legal philosophers. He has classified them into relative and absolute duties as explained above. 2. The Directive Principles of the State Policy that is present in the Indian Constitution is an example of imperfect rights. 5. The title is a process, by which the right is vested/conferred. It is any interest, respect for which is a duty, and the disregard of which is a wrong “. The state enforces such right as, a representative of the subjects in public interest. Rights are inevitable essentials for human existence. In the words of Austin, rights and duties are interdependent. Legal – A legal duty is an act, the opposite of which is a legal wrong. He says, for an interest to be regarded as a legal right, it should obtain not merely legal protection but also recognition. It is found only in England. Perfect and Imperfect Rights – A perfect right is one which corresponds to a perfect duty and a perfect duty is one which is not only recognized by the law but is enforced also. In jurisprudence, we find a bitter discussion and disputes about the exact meaning of the term “Right”. Any action of a person permitted by law is called 'right' similarly, the expression 'legal right' means " the standard of permitted action by law. The perfect right has the following features: Singh, Dr. Your email address will not be published. It is the duty of a state to protect the rights of the people. Legal rights: Characteristics, kinds of legal rights. The characteristics of corporations, their rights and liabilities, functional autonomy and juristic status are jurisprudentially recognized as of a distinct entity even where such corporations are State agencies or instrumentalities. The law is to protect only those acts or rights which further “social solidarity”. A positive right requires an active involvement of others but a negative right requires only positive acquiescence of other persons. A right in re-Aliena ‘or encumbrance”’ has been defined by Salmond as one, which limits or derogates from some more general right belonging to some other. So, a duty can be legal but not moral and vice versa. Does this mean that the convict has the right to be hanged? The development of society is credited to the constant evolution of law. Vested rights are transferable and inheritable, this is not possible in contingent rights. Characteristics of Legal Rights: Legal rights exist only in society. They are equally available to all the people. These type of legal rights cannot be found in India. An accessory right is a right which is connected with the principal right. For example, owning a vehicle is a private right. The Will Theory and 2. These are also called real and personal rights. Origin of Legal rights has been a subject of debate for many decades. It is a right of the person and the person bound shall restrain from doing some act which will be prejudicial to the person entitled, such as when a person owns a land, it is the duty of others to not trespass. In this article, we shall study the characteristics of ownership. 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”. The Interest Theory was proposed by the German Jurist, Rudolf von Jhering. The Privy Council in Chatra Kumari Devi v. Mohan Bikram [(1931) 58 I.A 279] observed that the Indian law does not recognized legal and equitable estates. He mentions four kinds of. If the breach of a right can be measured in terms of money or it has money value than it is said that the person has proprietary right but if the breach of a right cannot be measured in money or it has no money value that that right is known or called as personal right. A company or a corporate enjoys its existence as a legal person which is endowed with all the rights and liabilities as that of a person by the effect of fiction created by law. They are rational and moral claims that people make in their society. Legal rights exist only in society. Legal rights at certain characteristics and can … is the rule of justice and protects only certain interests. Rights are those essential conditions of social life without which no person can generally realize his best self. recognized as a duty by law and treated as such for the administration of justice. Paton also agrees taat one of the essential conditions of a legal right is that it should be enforceable by the legal process of the State. by an equitable obligation to deal with it for the benefit of someone else. iii) Security – Security is an encumbrance vested in a creditor over the property of his. Right to exact and receive a pecuniary penalty from the defendant for loss of right and 2. Required fields are marked *. Roman law, Greek law and Hindu law, has used the concept too. This theory has been widely accepted by the jurists in Germany. In … observed that the Indian law does not recognized legal and equitable estates. Title of the Right – Salmond has given the fifth element also, that is, “title”. A person possessing a positive right can compel the person with the duty to perform a positive act. The first and the most prevalent form of jurisprudence seeks to analyze, explain, classify, and criticize entire iv) Trust – A trust is an encumbrance in which the ownership of property is limited. The content of the legal right deal with the subject matter of legal rights. 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.”. International Journal of Law and Legal Jurisprudence Studies :ISSN:2348-8212:Volume 2 Issue 6 176 LEGAL RIGHTS Anamika Singh and Shriya Badgaiyan1 ABSTRACT Rights are conditions important for development of character of man. Contents of the Right – The act or omission which is obligatory on the person bound in favour of the person entitled. Jurisprudence Lecture video and jurisprudence lecture notes can be found in this course. Duties may also be distinguished into positive and negative duties. which will be prejudicial to the person entitled, such as when a person owns a land, it is the duty of others to not trespass. This theory was advocated by scholars like Hegel, Kant, Hume and so on. A negative right corresponds to a negative duty and is a right that the person bound shall refrain from some act which would operate to the prejudice of the entitled; in other words, a negative right, corresponds a negative duty. It is recognised by a legal system and is enforced by a legal … The concept and contents of rights keep on changing with the passage of time. are a classification of proprietary rights. The Characteristics of the Governmental Jurisprudence. Example –  If ‘X’ purchased a  car for Rs. ii) Servitude – A servitude is a right to the limited use of a piece of land unaccompanied. John Austin – According to Austin, “A party has a right when another or others are bound or obliged by law to do or forbear towards or in regard of him”. It is supplementary, because it looks for and gives solutions to cases that are not foreseen by law. They cannot be exercised against the society. He is the “person of incidence”. The subject matter is derived from human will. From the above essentials of legal rights, we can conclude that every right involves a relationship between two or more legal persons, and only legal persons can be bound by duties or be the holders of legal rights. The owner of the encumbered property is called the trustee and the owner of the encumbrance is the beneficiary of tire trust. A secondary duty, on the other hand, is one which has no independent existence of other duties. In ancient Roman Society, there was no problem of personality as the ‘family’ was the basic unit of the society and not the individual. Duties that are to be performed by us at the behest of the law is known as a positive duty whilst an act that is prohibited from being performed under the law is a negative duty. There can be no right without a subject. A primary duty is one which exists “per se” and is independent of any other duty. According to Salmond, ownership denotes a relation between a person and an object forming the subject-matter of his ownership. It can sue anyone in its own name and can be sued by anyone similarly. Protection Theory of Rights —It is to be noted that the source of all legal right is Law. 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