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Rights and duties are co-relatives

when people come into contact as a member of society, they have certain legal right and duties towards one another. These right and duties regulated by the prevailing law in the society.  It is the establish fact the main purpose of law is the protection of the society. To establish this fact it is essential that Sovereign or Sate use its physical force for the enforcement of legal right and duties and punish those who violate these rights.

Law consist those rule which regulate the human society, and it is the state which enforce these right and duties created by the state.

Duties- It is an obligatory act, or it is an act opposite of it means would be wrong. It is an act which one ought to do, aan act the opposite of which would be a wrong.

Kind of Duties-

1. 1. Moral duties
2. 2. Legal duties.
   1. I. Positive and Negative Duties- When a law obliges a person to do and act it is called the positive duty. And when law obliges him/her to refrain from doing an act it is called the negative duty.
   2. II. Primary and Secondary Duties- A primary duty which is exists per se and is independent of any duty, which the duty which has no independent existence, but exist only  for the enforcement of other duties.
   3. III. Absolute and Relative Duties- Absolute duties owns only by the state, which generally called the crime and remedy of it is punishment. Relative duties are owns by any person other than the one who is imposing them, the breach of it called the civil injuries. Which is repressible by compensation -(Hibbert).

Austin says- Relative duties which have corresponding rights.

Austin defined 4 kind of duties-

1. 1. Self duty- exp not commit suicide.
2. 2. Public duty- not to commit nuisance.
3. 3. Duty towards who are not human being duties towards God or animal.
4. 4. Sovereign- Duty towards sovereign.

Salmond-Reject the concept of Absolute duty he said there can be no duty without the right.

Rights-

A/c to Salmond- Right is a interest recognized and protected by a rule of justice.

A/c to Holems – Right is the power of enforcing legal limitation on conduct.

A/c Gray – Right is that power which a man has to make a person or persons to do or refrain from doing a act or certain acts

In State of Rajasthan v/s Union of India. SC has defined the Legal Right-

In strict sense, legal rights are correlative of legal duties and are defines as interest which the law protected by imposing duties on others. But in generic sense the word right is used to mean immunity from the legal power of other.

Theories of Legal Rights-

There are two theories on legal rights-

1. Will theory.
2. Interest theory.

Will theory-

Hume, Hegel and kent – A right is an inherent attribute of the human will. The subject matter of right is deriving from human will and through a right a man expresses his will over an object.

Puchta- says – legal right is an power over an object.

Vinogradoff-  in a social order establish by law no man is absolutely free to act as he likes, but his freedom of action is restricted due to rights of other.

Austin- A right of a person means that other are obligates to do or forbear from doing something in relation to him.

Holland- legal right is nothing but a permission to exercise certain natural powers to obtain protection under certain conditions.

Interest Theory- this theory mainly propounded by Ihring.

According to Ihring- A legal right is a legally protected interest. He does not emphasis on the element of will. He said the basic function of law is to protect the human interest and to avoid a conflict between their individual interests.

But Salmond criticize his theory and said- it is incomplete because it is completely overlook the element of State recognition. A legal right should not only be protected by the sate but also be legally recognized.

Gray was greatly impress by Salmond ‘s view and held that interest theory was partly true, he emphasized that a legal right is not an interest in itself but it only a mean to extend protection to interest. he said a legal right as the power by which a man makes other person do or refrain from doing a certain act by imposing a legal duty upon them through which the agency of law(State).

Allen- chooses the mid way he said both the element of Will and Interest are essential for legal right.

Essential element of legal Rights

There are five elements of legal rights-

1. The person of Inherence- This is also called the Subject, the legal right always vested in a person, without a person of inherence there cannot be a legal right.
2. 2. The person of Incedence- The right avail against a person, he is a person bound by the duty and so may be describe the Subject of duty.
3. 3. Content of the Right- Act or omission which is obligatory on the person bound in the favor of the person entitle.
4. 4. Subject matter of right- it is something which act or omission is relate, it may be the object.
5. 5. Tile of Right- every legal right has a title that is certain fact over event.

Enforcement of legal rights-

Through the agency of court  of law established by State it can be enforced. The usual method of legal right is –

Award of damages in civil cases.

Grant of an injunction- where by a party is restrained from doing an act which is likely to affect the plaintiff adversely in enjoyment of his legal right.

Right in a wider sense-

Salmond suggested-

Right Other persons ought to do in my behalf.

Liberty- I may do without the interference of law.

Power- I can do effectively against other.

Immunity- Other cannot do effectively against me.

Classification of Legal Rights.

Perfect and Imperfect Rights.  A/c Salmond – Perfect right is one which correspondent to legal duty, and not only recognized by law but also enforce by law.

Where as imperfect right though recognized by law but not enforceable by law, a time barred dept is the example of it.

Positive and Negative Rights.  The nature of co relative duty defines the positive or negative rights, if a person is bound to do something then it is a positive right, if a person is refraining to do an act it is a negative right.

Proprietary and Personal Rights. Proprietary rights related to economic or monetary rights or right of wealth. For exp  money in some one pocket or in bank, right to debt , land etc. Personal rights related to ones well being for example- right of reputation, freedom, liberty etc.

Right in re propria and rights in re aliena.

.re propria- Right over one’s property.

.re aliena- Right over the property of someone else.

Principle and Accessory Right- Principle rights are independent rights, but accessory rights are ancillary rights of principle rights. For example – A piece of land has a right is the principle right but the right of way is the accessory right of adjoining land.

Public and Private rights- When the right is vested in the Sate is called the public right whereas the private rights concerned only with the private individuals.

Jus ad rem- a right which is originated from another right is called jus ad rem. A person of inherence has a right to have some other right transferred to him.

 

 

About the Author

Hi, my name is Naveen Kumar Shelar. I reside in New Delhi, India currently employed full time as a Facility & Administration Professional .

I started out as a Executive Administration late in 2005 evolved into a Facility & Administration with time and now I’m into New office development and Planning . I am mostly involved in new office infrastructure planning, procurement development, execution, and operations, not only this but I love to policies and procedure drafting for office operations.

When I’m not working I am mostly into sports like Cricket or Chess. I’m also into movies and music big time. I love spending time at home on holidays with my Family and pet.

My father and my mother has been a great source of inspiration for my life.

Specialties: New office set up and it’s whole life cycle, in technology driven organizations. Competitive analysis, process compliance & improvements, policy and procedure drafting, legal Agreement drafting.

Education:

• Ch. Charan Singh University Meerut- L.L.B (3 years) 2009- perusing
• Symbiosis institute of Management Studies- MBA, Operations.
• Himachal Perdesh University- MA, History.
• Annamali University- Diploma, Marketing Management.
• Institute of Rail Transport Management- Diploma, Logistic  Management.
• Delhi University- Bachelor of Arts.
• Central Board of Secondary Education (CBSE)- Schooling.

 

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