One of the central points of discussion in legal theory is this particular concept of rights and duties. The concepts of rights, duties and wrongs are central to any legal system. They are the means employed by law to achieve its fundamental purpose of protecting and regulating the interests of an individual.
The need for law in society is to regulate. The need for regulation is to protect human interests. When a human interest is legally recognised, it turns into a right. Such right is legally protected and enforceable. Every right is created by a corresponding duty. One of the central points of discussion in legal theory is this particular concept of rights and duties. Along with the two, a third concept has emerged- that of wrong. Many theorists recognize these three concepts as the very basis of law. Let us discuss all the three concepts and evaluate their correlation.
The concept of wrong is closely connected with the concept of right. According to Salmond, a wrong refers to the wrong act. Such an act is, “contrary to the rule of right and justice.” The word injury is derived from the word injuria which literally translates to “that which is contrary to justice”. Thus, the word injury is essentially a synonym of wrong. However, in modern usage, it is used to refer to the damage caused to either party in a legal dispute by a legally wrongful act.
Kinds of wrong
There are mainly two kinds of wrongs- moral wrong and legal wrong.
- Moral wrong- Also known as natural wrong, a moral wrong is an act which is contrary to the rule of natural justice. It constitutes of acts which are morally considered to be wrong. For instance, a society which beliefs in respecting the elderly may consider any act which is disrespectful towards elders as a wrongful act. Such an act would be termed as a moral wrong. There lies no legal remedy for damage caused due to a moral wrong. A moral wrong may or may not be a legal wrong.
- Legal wrong- A legal wrong is an act that is either contrary to justice as recognized by the legal system of a state, or violative of any of the rights recognized by law. There are various methods in which a wrong is recognized as a legal wrong. The traditional method is that of penalizing of the act to declare it as a legally wrongful one. However, it has been argued by modern thinkers that the essence of a legal wrong lies in the declaration of the act as a wrong by law and not in the resulting punishment or sanction imposed by law. This has led to the development of other means and methods of recognizing an act as a legal wrong. There exists a legal remedy for damage caused due to a legal wrong. A legal wrong may or may not be a moral wrong.
Simply put, a duty is an act which is supposed to be done; else, it shall constitute a wrong. However, strictly speaking, there is a difference between duty and an act. There may be a duty within a duty, non-performance of which would result in the breach of the primary duty. An example of this would be the duty to respect the national flag of a state in order to avoid the breach of the duty to respect the nation. This is not true, however, with regards to an act. According to Salmond, a person is ascribed with a duty, “by virtue of his position or station.” This differentiates a duty from an obligation since an obligation is an act which one voluntarily takes up upon himself to do. Salmond goes on to say that only a positive act can be said to be a duty. There may be certain duties which may prima facie appear to constitute a negative activity such as the duty not to reveal some information. However, it constitutes a positive act of keeping a secret. Thus, it is only a negative way of describing a positive act.
Kinds of duties
Duties, like wrongs, can be classified into two types- moral duty and legal duty. However, there is a complex correlation and differentiation between the two, which, Salmond explains with a series of examples. He gives the example of the law against adulteration in England to explain the meaning of an exclusively legal duty. He states that there exists a legal duty in England to not to sell adulterated food items. This duty is irrespective of the questions of knowledge and negligence. Thus, even if a person sells adulterated food items unknowingly or negligently, he has caused of breach of this duty. He states that the duty, in so far as it is exclusive of the questions of knowledge and negligence, is an exclusively legal one. He then goes on to give the example of a duty not to have offensive curiosity about one’s neighbour. Such a duty, he states, is not a legally recognized one and is, therefore, a moral duty. He further states that there may also be duties which are both legal as well as moral such as the duty not to steal.
According to Salmond, a right is something that is caused in correspondence to a duty. A duty is owed towards a person. Similarly, the person towards him such duty is owed has a right against the person owing the duty. Salmond defines the term ‘right’ as, “A right is an interest recognized and protected by a rule of right. It is any interest, respect for which is a duty, and the disregard of which is wrong .” According to Holland, a right is “a capacity residing in one man of controlling, with the assent and the assistance of the State, the actions of others”. According to Gray, “A legal right is that powers which a man has to make a person or person 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.” According to Ihering, “A Right is a legally protected interest.”
Every man has his own interests. Only the interests that are recognized by law constitute a right. The concept of right helps in the determination of whether an act is wrong or not. All kinds of wrong violate some kind of interest of the victim. An act is wrong in the eyes of law only if the interest that has been violated is recognized by law as a right.
Kinds of Rights
Like wrongs and duties, rights too are of two kinds- moral or natural right and legal right.
- Moral rights- Also known as natural right, moral right refers to the interest violated by a moral wrong and corresponding to which there exists a moral duty. Bentham has strongly criticized the concept of natural rights. He has confined the meaning of rights to strictly those interests which are recognized by positive law. He calls natural rights as a form of ‘fictions’ and ‘metaphors’ which have occupied central position in several law books. Salmond has responded to this criticism by using the concept of law and morality. He states that the claim of the existence of natural rights never founded the school of natural law. There simply exist certain beliefs or morals as to how men should behave, which we call moral or natural duties. Corresponding to this is moral or natural rights. The way in which such duties and rights are described is a fact which distinguishes law from morals. It should not lead us into believing in the complete non-existence of such rights and duties.
- Legal rights- Certain interests of an individual are recognized and protected by law. These interests are known as legal rights. The violation of these interests would be a legal wrong and corresponding to them is a legal duty. According to Salmond, one important essential of a legal right is that it is not merely protected by law but is also recognized by it. The legal recognition of a right can be determined by looking at the vinculum juris or bond of the legal obligation between the parties. He uses the example of animal rights and child rights to explain his assertion. He states that there exist animal protection laws but they cannot be said to rights recognized by law. They are the rights of animals which are simply protected by law. Suppose if a man is cruel towards his dog, the dog cannot initiate legal proceedings against him. The legal relations between them shall not change. On the contrary, when a parent is cruel with his child, the child can initiate proceedings to protect his interest or right. He went on to say that humans have enacted animal protection laws in respect of them and not in recognition of them. Thus, he explained the fundamental difference between protection and recognition of interest.
Relationship Between Rights, Duties & Wrongs
As is clear by looking at the very meaning and definition of a right, duty and a wrong, all three of them are correlated with each other. As far as the relationship of rights and duties with wrongs is concerned, wrong is either the cause of claiming of a right or effect of non-performance of duty. Thus, there cannot be wrong without duty and neither can there be wrong without someone who has been wronged, that is, someone who can claim the right.
The relationship between rights and duties has attracted much debate and discussion. There are mainly two schools of thought. One holds that rights and duties are correlated and one cannot exist without the other. The second school of thought, led by Austin, holds that right may have corresponding duty but duty does not necessarily have a corresponding right. Let us discuss these two schools in detail.
Holland states that every right involves a corresponding ‘forbearance’ on the part of the other party. This ‘forbearance’ is known as a duty. Keeton too proposes duty as ‘an act of forbearance’ which is enforced with a view to protect the corresponding right. According to Paton, there cannot be a right without a corresponding duty and vice versa. When we use the term right, we are referring to a right-duty correlation between two persons. He further goes on to say that to suppose that a right can exist without a duty would be as meaningless as supposing that a father can exist without a son or vice versa. Salmond states that there cannot be a duty unless there is a person to whom that duty is due.
Are not correlated
Austin uses the example of a magistrate and an offender to support his assertion that duty may not have a corresponding right. He states that a magistrate has a duty to punish the offender if he is found guilty. However, the offender does not have a corresponding right to be punished. This has strongly been criticised. Critics have stated that Austin’s example of absolute duty is not a legal duty. Austin has given examples of duties towards the community at large to define absolute duties. Critics argue that such a duty is no less than a bundle of duties owed to each and every member of the community individually.
The concepts of rights, duties and wrongs are central to any legal system. They are the means employed by law to achieve its fundamental purpose of protecting and regulating the interests of an individual. The most fundamental concept amongst the three of them is that of legal rights. Rights form an essential part of any legal system, especially a democratic one. Extensive legislation on rights is found in both, municipal as well as international law. To understand the meaning and nature of rights more clearly, a clear understanding of the concepts of wrongs and duties is required due to the strong correlation between all the three concepts.
- Fitzgerald, P.J., ‘Salmond on Jurisprudence’, Twelfth Edition, N.M. Tripathi Pvt. Ltd., 1999.
- D. Mahajan, Jurisprudence and Legal Theory, Eastern, Lucknow M.D.A. Freeman (ed).
Contributed by Tejas Vasani