LEGAL CONCEPT of Legal Rights and Duties

By | September 24, 2016

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Legal Rights and Duties

Legal rights are, clearly, rights which exist under the rules of legal systems or by virtue of decisions of suitably authoritative bodies within them.

According to positivists, legal rights are essentially those interests which have been legally recognized and protected. John Austin made a distinction between legal rights and other types of rights such as Natural rights or Moral rights. By legal rights, he meant rights which are creatures of law, strictly or simply so called. He said that other kind of rights are not armed with legal sanction and cannot be enforced judicially.

On the other hand, Salmond said that a legal right is an interest recognized and protected by rule of law and violation of such an interest would be a legal wrong. Salmond further said that:

  1. A legal duty is an act that obliges to do something and act, the opposite of which would be a legal wrong.
  2. Whenever law ascribes duty to a person, a corresponding right also exists with the person on whom the duty is imposed.
  3. There are two kinds of duties: Moral Duty and Legal Duty.
  4. Rights are said to be the benefits secured for persons by rules regulating relationships.

Salmond also believed that no right can exist without a corresponding duty. Every right or duty involves a bond of legal obligation by which two or more persons are bound together. Thus, there can be no duty unless there is someone to whom it is due; there can be no right unless is someone from whom it is claimed; and there can be no wrong unless there is someone who is wronged, that is to say, someone whose right has been violated. This is also called as vinculum juris which means “a bond of the law”. It is a tie that legally binds one person to another.

On the other hand, Austin said that Duties can be of two types:

  1. Relative Duty– There is a corresponding right existing in such duties.
  2. Absolute Duty– There is no corresponding right existing.

Austin conceives this distinction to be the essence of a right that it should be vested in some determinate person and be enforceable by some form of legal process instituted by him. Austin thus starts from the assumption that a right cannot vest in an indeterminate, or a vague entity like the society or the people. The second assumption with which Austin starts is that sovereign creates rights and can impose or change these rights at its will. Consequently, the sovereign cannot be the holder of such rights.

According to Salmond, there are five important characteristics of a Legal Right:

  1. 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 inference.
  2. 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. 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. 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.
  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.

Some jurists hold that a right may not necessarily have a correlative duty. They say that legal rights are legal concepts and these legal concepts have their correlatives which may not necessarily be a duty.

Roscoe Pound also gave an analysis of such legal conceptions. He believed that legal rights are essentially interests recognized and administered by law and belong to the ‘science of law’ instead of ‘law’. He proposed that such Rights are conceptions by which interests are given form in order to secure a legal order.


Conclusion derived from Hohfeld’s System

  1. As a person’s right is an expression of a wish that the other person against whom the right or claim is expressed has a duty to obey his right or claim.
  2. A person’s freedom is an expression of a right that he may do something against other person to change his legal position.
  3. A person’s power is an expression of a right that he can alter other person’s legal position.
  4. A person’s disability is an expression of a wish that another person must not alter the person’s legal position.


Salmond on Rights and Duties

Salmond said that a perfect right is one which corresponds to a perfect duty and a perfect duty is one which is not merely recognized by law but also enforced by law. In a fully developed legal system, there are rights and duties which though recognized by law are not perfect in nature. The rights and duties are important but no action is taken for enforcing these rights and duties. The rights form a good ground for defence but duties do not form a good ground for action. However, in some cases, an imperfect right is sufficient to enforce equity.

Salmond gave following classifications of rights.

  1. Positive and Negative Rights
  2. Real and Personal Rights
  3. Right in remand right in personam
  4. Proprietary and Personal Rights
  5. Inheritable and Uninheritable Rights
Author: Mayank Shekhar

Mayank is a student at Faculty of Law, Delhi University. Under his leadership, Legal Bites has been researching and developing resources through blogging, educational resources, competitions, and seminars.