CHAPTER xy LEGAL RIGHTS Since administration of justice Means enforcement of rights and punishment of their violation by the physical force of the State, the comeption of a “right” has a fundamental significance in jurisprudence. Since rights result from certain acts and Omissions, respectively known as “duties” and wrongs”, it is better to know of the nature of these two latter conceptions before embarking on a definition and full understanding of the conception of “rights”, Wrongs.—"A wrong is an act contrary to the rule of rights and justice”, (Salmond), In its true and Primary sense it is synonymous with injury. The term has acquired a secondary sense of harm or damage — rightful or wrongful. Wrongs are either moral or legal. In the former case, the courts do not take them into cognizance but in the latter case they are so cognizable. A wrongful act is an act contrary to the rule of right and"justice. It may again consist of either moral (natural) wrong or legal wrong. An act which is morally or naturally wrong, i.e., opposed to the rule of natural justice, is a moral or natural wrong. A legal wrong, on the other hand, is one which violates law and is contrary to the rule of legal justice. A legal wrong is authoritatively recognised by a rule of law to be a wrong for the purpose of administration of justice. Legal damage.—Legal damage does not necessarily imply any pecuniary loss. Every invasion of a person's legal right or unauthorised interference with his property imports legal damage, Law will presume damage if some legal right has been violated although the injured person my not have suffered any actual or pecuniary loss, Duty.—"A duty is an obligatory act; it is an act the opposite of which Would be a wrong. Duties and wrongs are co-relative. The commission of a wrong is the breach of a duty, and the performance of a duty is the Woidance of a wrong. There can be no right without a corresponding duy of duty without a corresponding right, any more than there can be a ; without a wife, or a father without a child. Every right or duty involves a bond of legal obligation by which two or more persons are ' together. There can be no duty unless there is someone to whom it “due; there can be no right unless there is someone from whom it isNy E PRUDENCE 182 ENGLISH JURIS! (Chap 7 claimed: and there can be no wrong unless there is someone Whose ¢j has been violated”. (Salmond). Rights.—"A right is an interest recognised and protected by a nye right, It isan interest, respect for which is a duty, and the disteparg 7 which is wrong.” (Salmond). An act is right or just because it pro some form of human interest, such as life, liberty, health, reputation the enjoyment of material objects. It is wrong and unjust when interests ate prejudicially affected by it. Rights are, therefore, sucp interests as have received recognition and protection from the rules of right. ‘According to Holland, a right is one man's capacity of influencing the acts of another, by means, not of his own strength, but of the opinions and the force of society. A right is thus the name given to the advantage a man has, when he is so circumstanced that a general feeling of approval, or at least of acquiescence results, when he does or abstains from doing certain acts, and when other people act or forbear to act in accordance with his wishes; while a general feeling of disapproval results when anyone prevents him from doing or abstaining at his pleasure, or refuses to act in accordance with his wishes. ah According to Jhering, rights are legally protected interests. Salmond disagrees with him as according to him a legal right is an interes, recognized and protected by a rule of legal justice. Austin comments “a person has a right when another or others are bound or obliged by law to do or forbear towards or in regard to him’, Austin thus defines a right in terms of duty but he was driven by John Stuart Mill to admit that some duties have no correlative rights as he pointed out that according to his definition, a convicted criminal will have the right to be punished. Mill, therefore, suggested to modify the definition so as to bring in the element of advantage accruing to the party having the right. Austin called the duties having no correlative rights, aS the “absolute duties”. Prof G. L. Williams points out that duties in criminal law are imposed with reference to and for the benefit of members of the Society, but none of them have rights correlative to these duties, [Link] observes “a legal right is nothing but a permission 0 exercise certain natural powers, upon certain conditions to obit Protection, restitution or compensation by the aid of public force. According to Pollok, “Right is the freedom allowed, and pove? conferred by law on a person”.bh cpp XV) LEGAL RIGHTS is ickland lays down that “a legal right is an j ; enn teed by law”, al right is an interest or an expectation T.H. Green says, rights are powers which, itis - peing, thatthe individual should possess.” * £0" the general well Rights may be either private or public.—If a right vests in a aricular individual or individuals itis a private right. If however, it vests in the public or a section of the public at large its a public right, Rights are again divisible into perfect and imperfect.—A perfect right is one which is enforceable 1e wh n at law and whose infringement, however, slight it may be, is cognizable by the courts. An imperfect right, on the other hand, is one which is not enforceable in courts although these are recoginsed and may be a ground for defence. A perfect right may become imperfect and vice versa. ‘The following illustrations will be helpful: (1) A debt not barred by time is a perfect right but a time-barred debt is an imperfect one. It cannot be sued upon but if the debtor does make payment and latter sues the creditors for return of the amount paid, saying that he paid the amount under mistake, the right of the creditor forms a valid defence. Q A right under an unregistered deed relating to a transaction which the law requires to be made by a registered deed is imperfect and unenforceable although recognised as such but if the deed is later on registered the right becomes perfect, and enforceable at law. Moral and Legal Rights.—A legal right as we have already seen is a legally recognised and protected interest. These rights are distinguishable from moral or natural rights. A moral or natural right is protected, not by legal justice, but by a rule of natural justice. Thus, the right of a wife ‘o be loved by her husband is her moral right but her right to be properly d and maintained is her legal right. The former is not enforceable in a Court of law; the latter is so enforceable. * Fundamental Rights.—The basic rights which every citizen Possesses in any civilized community are known as fundamental rights. These generally relate t0:-- i i loitation.. (1) Equality. (2). Freedom. (3) Protection against exp! ) Freedom oP Religioa. (5) Culture and Education. (6) Property.ENGLISH JURISPRUDENCE (ey, q is y These rights are legal rights and are justiciable. Essentials of Legal Rights—The following five clemeni a i le involved in every legal right :~ (1) There must be a subject of the right, i.e., the right vested in a definite person or persons, or in other words, they must be an owner of the right, The right May vest in indeterminate body of persons such as the public, Te a (2) There must be a subject of the duty, i.e., the Person or Persons who are under the co-relative duty or against whom the right avails. G There must be an object of the right, i-e., something over which “it is exerciseable. (4) There must be a title in the owner, i.e., certain facts or events by reason of which the right has become vested in the owner, (5) There must be a content of the right, i.e., something to which the act or omission relates (the subject-matter of the right) , or an act or omission which is obligatory on the Person bound in favour of the person entitled, Thus, a legal right is vested in a person, it avails against a person, it relates to something, is based on some title, it obliges the person bound ‘0 an act or omission in favour of the person entitled. Mlustration.—X inherits a village from Y. X is the subject of the right, the village is the object of the right, the people in general are the subject of the duty, the fact of inheritance constitutes X’s title to the village, and lastly, the content of the right is that the people in general are bound not ‘o interfere in X’s possession and enjoyment of the village. _ Every Right must have an owner.—Although no right can exist without an owner, yet it would make no difference if the owner is either unknown or uncertain or indeterminate. Thus, when rights af transferred to an unborn person or when on a person dying intestate his estate devolves on another, right vests in the transferee, notwithstanding t r ¢ or is uncertain at the time. In the former instance the right can be taken as vesting in an vintottaln unborn perso: In the later case the estate may be deemed to vest in an uncertain perso" ‘0 whom the letters of administration are eventually granted,yr cu XVI LEGAL RIGHTS 185 t have an object,—E gvery right must have 1 +—Every right must have an object fit need not necessarily be material, ‘Thus, immaterint things such 4s c0PY right, reputation, freedom, etc, can also be the objects of rights. Rights according to objects, Cl fication.—Rights according to gj cam be classified in seven ways . 6 (1). Rights with material objects, e.g., my right over my house, furniture etc, (2) Rights in respect of one’s own person, ¢.g., my right not to be killed, assaulted or wrongfully imprisoned. The objects respectively are my life, health and liberty. 3) Rights of reputation.—None can defame another. The good opinion of society is the object in this case. 4) Right in respect of domestic relation, e.g., parental rights, material rights, rights over one’s servant. 6 Rights in respect of other righis.—When by a contract for sale, the buyer acquires a right to the right of ownership over the object of sale, a right is created in respect of other rights. ©) Rights over immaterial property, ¢.g., copy rights, patent rights, trade marks, goodwill, etc. () Rights to service, just as a master has over his servant, or a client over his lawyer or a patient over his doctor. The objects in all these cases respectively are the strength, the learning and the skill of the person bound. Classification of legal rights in wider sense.—Legal rights, in wider sense, mean any advantage or benefit conferred on a person by law, with _ OT Without any duty being imposed in this respect on another. Salmond classifies such rights into three kinds + () Rights, stricto sensu, (ii) Liberties, (iti) Powers. Hohfeld adds to these one more kind as (iv) Immunities. (1) “Rights.—Am interest to which a duty corresponds. 2) Liberties, Sometimes also called privileges, come into existence without any corresponding duty being imposed on others. Absence of corresponding duty distinguishes liberty” from “legal right” in the strict sense. A liberty of a person is what heENGLISH JURISPRUDENCE (Chap, 186 may do for himself while his right is what others ought 1g s for him. .—"An ability conferred upon a person by lay (3) determined by his own will, to determine the rights, duties and liabilities or other legal relations of himself or of Others» (Salmond). Law assists in the carrying out of the powers ang thus although there are no corresponding duties imposed upon other, yet the courts will enforce the powers if it is infringed. So if| exercise my powers to make a will, no corresponding duty is cag, ‘on any other person in respect of that transaction but if ay prevents me from exercising that powers, the courts will hejp me. Powers are either public or private—public powers are vested in an organ of the State such as legislative, judicial, and executive. Private powers, better called capacity, vest in individuals and are to be exercised in respect of their own purpose, e.g., capacity to make a contract or sale, (4) Immunities. —An immunity is an exemption from having a legal relation changed by another. The correlative of immunity is disability or inability or ‘no-power’. Disability is the absence of power. Immunity prevents others from exercising power over the person immuned. Thus, the right formerly enjoyed by the peers to be tried only by the peers and not by the ordinary courts, was neither a right in the strict sense, nor a liberty nor a power. It was merely an exemption from trial by ordinary courts, This exemption was an immunity enjoyed by the peers. Legal immunity is, thus, exemption from the power of another in the same way as liberty is exemption from the right of another. Burdens of law.—The law imposes certain burdens or disadvantages. These are of four kinds:-- (1) Duties.—Such burdens as are imposed by law in co-rrelation to rights are called duties, : 2) “No rights” (as stated by Hehfeld) or “liability” (as stated by Salmond). “No rights” are those burdens which correlate to liberties or, in other words, absence of right. Salritond’s use of the word “liability” in this sense is confusing, for, it has some aber distinct meanings. 1{ means an enforceable duty in a peso? st ia fg son of Belg proscap XV) LEGAL RIGHTS 187 Mlustration,—A is the owner of his house which t § whi out 10 B. B is under a duty to pay rent to A, fas be poet eject B in case B falls in arrears of Tent and in this instance B has a “no-right” not to be ejected; ) Subjection.—This term was used by Radin to denote the sense hereinafter following. Salmond, Hohfeld and several others use the term “liability” in this sense as well. Subjections are those burdens which are imposed by law on a person against whom some power vests in another, Mlustration.—A landlord has the power to terminate by re-entry the Icase of his tenant. The tenant is thus under a subjection in respect of the landlord's power of re-entry. 4 Disabilities or inabilities.—These-are burdens imposed by law in relation to immunities. A disability is mere absence of capacity or power and may be called a “no-power”. Thus, a child under seven years of age is immune from criminal trial and correspondingly the courts are under a disability to try him. Classification of Legal Rights.—Salmond classifies legal rights into nine kinds as follows : « Q) Positive and negative rights. 3) Real and personal rights. « (5) 6) (7 ®) Perfect and imperfect rights. Proprietary and personal rights. Rights in re propria and rights in re aliena. Principal and accessory rights. Legal and equitable rights Primary and sanctioning rights. ) Vested and contingent rights. fy thinkers would add yet two other kinds 10 the above as OWs 3. (10) Public and private rights. (UY) Municipal and international rights.188 ENGLISH JURISPRUDENCE (Chap xy Now we proceed to deal with the above one by one: 1, Perfect and imperfect rights.—Enforceability in a court Of Law s the general test of such rights. Ifthe courts of law not only recogni Particular right but also enforee it, it is perfect right. On the other hag? Tight, which though recognised by the courts, cannot be enforcet 4? them is an imperfect right. Thus, a debt not barred by time is Tecogni and enforced by the courts and is, therefore, a perfect right, But if itis time-barred, the courts will recognise it but would refrain from enforcin, it due to the prohibitory provisions of the Limitation Act. This debt i therefore, an imperfect right, The Maxim Ubi jus ibi remedium (whens there is a right there is a remedy) does not apply to imperfect rights Imperfect rights though incapable of supporting an action can yet be - sufficient ground for defence. An imperfect right is capable of being Converted into a perfect right and similarly a perfect right may be Converted into an imperfect right. This has already been dealt with earlier, Rights and duties of the State.—Austin holds the view that a subject cannot own a right against the State and conversely the State cannot owe a duty to a subject because it cannot issue commands against itself ot bind itself to a subject and if at all the subject is ever allowed to sue the State it is only because the State allows this to be done not as a matter of Tight but as a matter of grace. The State, Austin further holds, can also have no rights because .one of the essentials for the creation of a tight is that there should be some superior who is to confer that right and the State has no political superior to confer that right over it. These theories are based on the old and practically obsolete view that sovereignty is unlimited and illimitable. In modern democratic world, the State is no longer without a political superior. It’s political superior is the population which frames the Constitution and gives it certain powers and prohibits it from taking certain actions. Thus, the State in modern sense has rights and owes duties, just as an individual has and owes. Holland and Salmond are also of the view that the State owns rights and owes duties to its subjects. The rights of the subject against the State, says Salmond, are, however, imperfect rights because these. cannot be enforced. According to him a State cannot enforce a judgment against itself and the subject cannot claim a right against the State as a matter of right. According to this theory the rights against the State are held at its-g004 " pleasure. The theory does not appeal to modern way of thinking ard is fallacious. The State does not perform duties imposed upon it by the Constitution because it is not bound to do so and may’ disregard thes?| LEGAL RIGHTS oo) 189 jes at its Pleasure, but because sovereignty of the people, which in the guties n conception is superior to the State, has ordained it to do so under Constitution and also sometimes by the force of its opinion. The jes of Austin and Salmond may be true in case of monarchies, eameratic governments, and dictatorships but do not hold true in the sie which the State is understood in these modern times. s 2, Positive and negative rights.—Content is the test of such rights. sstive right is a right that he on whom the duty lies shall do some ‘ vive act on behalf of the person entitled. A negative right is a right that person bound shall refrain from some act which would operate to the ejudice of the person entitled. In positive tight, the owner is entitled to apositive act from some-other or others; in negative right he is entitled ia negative act or forbearance from some other or others. The positive right is a right to be benefited; ‘the negative right is a right not to be tarmed. Thus, if my debtor has money in his pocket, I have a positive right to that money. But if I have money in my own pocket, I have a negative right not to be harmed or deprived in respect of that money. 3, Real and personal rights.—These ate also known as rights in rem and rights in personam consecutively. A real right is one which corresponds to a duty imposed upon the people in general. A personal right is one which corresponds to a duty imposed upon a particular individual. A real right avails against the world at large, while a personal ‘ght avails only against a particular individual or individuals. Thus, my fight to the possession of the money in my pocket is real. My right, however, to receive money from someone else who owes it to me is personal. I havé areal right against the world at-large not to be deprived of my money but as against the money possessed by my debtor, I have only ‘personal right to receive it from that particular. individual. A real Tight is, therefore, a relation between the owner and large number of Persons, while personal right is one between determinate individuals. 4. Proprietary and personal rights.—Proprietary rights are those Which Gan be measured in terms of money or have an economic value, ~ ‘ch as land, patent rights, debts due etc, Personal rights are those which enue ‘0 a person’s honour of well-being, such as personal liberty, ielation tc. Proprietary and personal rights, in common parlance, are itis tee estate and Status. The test of a proprietary right is ‘ot whether Thuy ara or Aalienable but whether it can be converted into money. tit Petson’s estate consists even of his liberties, powers and "6S which are either valuable in themselves or are accessory to Pe190 ENGLISH JURISPRUDENCE (hep, some valuable rights. A Landlord’s right of re-entry ig proprietary as his right to the rent. Similarly, the Mortgagops , Muth sale ig a proprietary right. It will be seen that in both of these ¢1 8 of right can be converted into money. Again transferability ig not yo! be a proprietary right. Thus, a pension, although inalienabye “Sot proprictary right, A married woman may be unable to alien * property but nevertheless her right over the property is notin proprietary. ® by Status.—The term status is used in four senses as follows;.. (i Legal condition of any kind.—In its most comprehensive seny means legal condition of any kind — personal or propriety. this sense a man’s status includes the sum total of his legal righ duties, liabilities and other legal relations, ie., his wig position in law. (ii) Personal legal conditions.—In this sense the word is applied to, man's legal condition only so far as his personal rights ang burdens are concerned to the exclusion of his proprietary relations. Thus, when we speak of the status of a wife we mein all the personal benefits and burdens of which marriage is ty legal source and a burden. (iii) Personal capacities and incapacities.—In this sense the word is used to indicate personal capacities and incapacities as opposed i the other elements of personal status. The law of status in this sense would include the rules as to the contractual capacities and incapacities of married women to the exclusion of the other of her rights such as the rights existing between her and her husband, (iv) Compulsory as opposed to conventional personal condition Status signifies a man’s legal condition so far only as itis imposed upon him by the law without his own consenl, 3 opposed to the condition which he has acquired for himself by agreement. Thus, the position of a slave is a matter of a sts but the position of a servant is a matter of contract. 5. Rights in re propria and rights in re aliena, — Rights, accorint to their object, may be distinguished as rights in re propria and righs'* re aliena, The most absolute power which the law gives over a thine 5 called the right of property — dominium. This is the real right ina 4% which one has — jus in re propria, But men sometimes have # ™!E LEGAL RIGHTS I 191 oo nich falls short of full ownershi i ¢. Rights of this description are Known as Jung em ests in vonds & right in re propria is a tight which the peeseuen con oie without any interference from another; a right in re aliena is a ext hich @ person possesses with respect to the Property owned by ‘het Thus, my ownership of my land is a right in re Propria but the ¢s which I have to this land through the adjoining land of another is a sine aliena. ‘These latter rights are also known as easements or servitudes. In the jnsrations cited above my right of way is a dominant right and my own is the dominant tenement, The right of ownership of my neighbour ‘chis land (over which I have a right to pass) is derogated from: it is thus a servient right and his land is the servient tenement. A dominant right is an encumbrance over the servient tenement. A right in re aliena may be positive or negative. If 1 have a right of way over my neighbour's land, my rights are positive; if 1 have a right to prohibit my neighbour. from building in such a manner as is likely to obstruct the passage of light and air to my house, my right is negative. Encumbrance.—An encumbrance is a right which limits or derogates fiom some more general right belonging to some other person in respect of the same subject-matter. Encumbrances have been divided into four classes, namely, leases, servitudes, securities and trusts. Lease.—A lease is the encumbrance of property vested in person by a tight to the possession and use of that property which vests in another. If Tlet out my house on rent to someone, the tenant acquires a right to use nny house as long as he pays rent and in this way I create a right in my nant over my house. The leasing out, therefore, created an Scumbrance over my house. A lease is the rightful separation of Possession from ownership of the property. The possession in such case ests in the lessee but ownership continues to vest in the lessor. Serviude.—This is a right which is limited to-the use of « piece of é ‘Unaccompanied either by the ownership or by the Possession of it, ha tight of way or a right to the passage of water across the adjoining longing to another. mit —A security is an encumbrance, vested in a creditor over the Of his debtor for the purpose of securing the recovery of the i:HH JURISPRUDENCE - im ENGLIS! (hap, debt, Security on immovable property is called a mortgage; on ory property itis called a pledge. oe A trust is an encumbrance in which the ownership 7 is limited to deal with it for the benefit of SOMONE elgg. ee at the encumbered property 1s the trustee; the owner Of the encumbrance is the beneficiary :-~ incipal and accessory rights.—A right is capable of bi, atteced, ndvesely or beneficially, by the exiaenss of oer tine right is adversely affected when it is. limited or qualified by a right vest in some other person. Such a right is called a servient right. A righ, the other hand, is beneficial when one has added to it a Supplemen right vested in the same owner, such as easements. The right 5 augmented is called the principal right; the right so appurtenant to it ‘ called the accessory right. Mlustration.—The owner of land X has right of way over the land y, X is the dominant and Y the servient tenement. The owner of X has not only the absolute right to enjoy the fruits of X but also the additionay right of passage over ¥. This additionally accrued right with respect to y is called an accessory right of X and the burden placed on Y is called the principal right imposed upon Y. 7. Legal and equitable rights.—Legal rights are those rights as were recognised by the Courts of Common Law; equitable rights, on the other hand, are those as were recognised solely in the Courts of Chancery. The administration of law and equity by separate Courts, though done away with by the Judicature Acts of 1873 and 1875, consistent rules are now in force by abolishing those rules of common law which were in conflict _ with the rules of equity. Trusts. 8. Primary and sanctioning rights.—A sanctioning right is one which arises out of the violation of another right. All others are primary. These latter are such rights as arise from a soufce other than wrongs. My right not to be damaged is primary; but my right to obtain compensation in respect of the mental worry caused to me by that defamation is “sanctioning. This has already been dealt with in a previous chapter. 9. Vested and contingent rights.—A vested right is one in respect of which all events necessary to vest it completely in the owner have happened and no condition remains to be satisfied. A contingent right is one in respect of which only some of the events necessary to vest it in the contingent owner have happened.LEGAL RIGHTS 193 ‘eys his property to B, a was to bE given to the minor on attait ists ‘a mere contingent right, ‘ment of majority, the infant 10. Public and private rights.—A public right is one which is possessed by every. member of the public. In such tights one of the ties. concerned is the State and the other concerned party is the Prvidual- A private right, on the other hand, is concerned only with individuals. 10 such rights both the concerned parties are private jndividuals. 11. Municipal and international rights.—Municipal rights are nferred by the law of the country; international rights are conferred by rernational Law. Municipal rights are equally enjoyed by all the eas living in the State; international rights are ehjoyed, not by all, put only by those individuals as are recognised by International Law.