INTRODUCTION

Law is one of the most essential elements of the society which is responsible for the development of
the state and it aims for the welfare of the state. According to various theories regarding the origin of
state, men and their property were in constant threat as men were only governed by natural rights, so
hence, all the men decided to form rights and duties that governed all men. Legal rights and duties
have a lot of significance in the society, and this due to various reasons. So, to understand the role of
rights and duties in the society we should firstly understand the meaning of rights and duties.

The context we use the words ‘rights’ and ‘duties’ in daily is different than what various jurists
defined rights and duties as. Salmond defines legal rights as a recognized interest and something that
is protected by a rule or justice, according to Salmond’s definition of legal right, for an interest to be
classified as a legal right, it is not enough to obtain legal protection only but such interest has to be
recognized also. The supreme court also in various cases has defined what legal right in law actually
means. In the case of State of Rajasthan V. Union of India1, the supreme court observed that, legal
rights are corelated to duties and legal rights are defined as interests which are protected by law, the
law protects such interests by imposing duties on others but however in general sense the definition of
legal right is very different, legal rights is considered as mean to protect from the legal power of
another.

Duties is regarded as an obligation, which every person in a state has to fulfill. Duties are basically, to
do or not to do something that is in favour of another. Every person in the society has a common duty
not to violate the laws and fulfill their duties. The term legal duty as defined by Keaton is “an act in
forbearance which is enforced by the state in respect of a right vested in another and breach which is a
wrong”. Duties are generally of two kinds, moral duites and legal duties. A duty is regarded to be a
moral duty when the nature of the duty is opposite to what moral wrong is. So hence, a duty may be
moral but not legal or it may be legal and not moral or both at once. Though the violation of legal
duties is punishable but however the violation of moral duties is not punishable.

As mentioned earlier, the legal rights and duties are interrelated as they always go together, legal
rights and duties cannot be separated and be implemented in an effective way as they are two sides of
the same coin, as for example when a state guarantees a citizen a right to enjoy, it also imposes a duty
on its citizens, this is so that no individual disrespects the rights of others.

THEORIES OF LEGAL RIGHTS.

There are two main theories of legal rights and they are as follows,

1
AIR (1997) SC 1361

1
 THE WILL THEORY OF LEGAL RIGHTS – the will theory of legal rights has
been advocated by Hegel, Kant, Hume. According to the will theory, a right attributes
human will and it also says that the need for law revolves around the free expression
of human will, it is stated that the subject matter of a legal right is influenced by
human will. John Locke observed that “the basics of rights is the will of the
individual”. This theory of legal rights has been accepted widely but however there
were many scholars who were against this theory. Duguit opposed the theory of will,
as according to him the basis of law is ‘social solidarity’ and not the human will as he
observed that the purpose of law is to protect the acts or rights of the citizens of the
state.
 INTEREST THEORY OF LEGAL RIGHTS – Rudolf von Jhering, a German
jurist proposed the interest theory of legal rights, he defined legal rights as interests
which are legally protected, his theory says that rights are related to interests and that
rights do not emphasize on the human will. This theory contradicts the theory of will
as it says that the basis of law is interest and not will of the people as the main
purpose of law is to protect the human interests and to resolves the conflict of
interests of different people. Though this theory was supported by Salmond, he
mentioned that enforceability of law is also an essential element and he says that the
rights concerned with interests and indeed have defined as interests protected by rules
of right that is moral or legal rights. This theory has been criticized on the ground that
it is incomplete, as the theory it completely overlooks the element of recognition.

ELEMENTS OF RIGHTS
Sir John Salmond, laid down few essential elements of rights and they are as follows-

 THE PERSON OF INHERENCE- this element is also known as the subject matter
of the right. A legal right is always entitled to a person who is distinguished from
others and that person is the owner of the right, or as the subject of the right or as the
“person of inherence”. Therefore, there cannot be a right without a subject matter that
is the person with whom the right is vested.
 THE PERSON OF INCIDENCE- a legal right functions around a person who has a
legal obligation to follow and not violate the right. Such person is known as the
person of incidence, and this person is bound by the duty or the subject of the duty.

2
  CONTENTS OF THE RIGHT – the act or omission which is obligatory on a person
and is in favour of the person entitled. This is known as the subject matter of the right.
Some writers contradict the above view and say that there are always some rights
without subject matter.
 SUBJECT MATTER OF THE RIGHT – this element is related to the act or
omission, that thing is over when the right is exercised. However this may be called
the object of the right.
 TITTLE OF THE RIGHT – according to salmond the fifth element is the tittle, he
says that every legal right has a tittle, and this is because due to certain circumstances
or events the right has become vested in its owner.

KINDS OF RIGHTS

1) Right in Rem and Right in Persona -

'Rem' means world and 'Persona' means persons. The Right in Rem is the right available
against the whole world while right in Persona is the right against a particular person. Right
in Persona generally arises out of contractual obligations for example - breach of contract.
Whereas, right in rem is generally outcome of law. For example- Tort, Crime. Right in
Persona is generally transitory in nature, which can be transferred in right in rem. Right in
rem is a final thing, whereas right in Persona is transitory in nature.

2) Personal and Proprietary Right

Personal right is in respect of person of owner of right whereas Proprietary right is in respect
of property of which the person is an owner. Proprietary Rights are those, which constitute a
man's property or wealth. These are the rights, which possess some economic or monetary
value and constitute the estate of the Person. Right to land, debts and Goodwill or patent
rights are all Proprietary right.
Personal right includes right to safety, to repetition Personal rights are also important like
Proprietary right. For example - right to reputation. Personal Rights is having no economic
value. They relate to Person's well-being or status.

3
3) Positive and Negative Rights -
Positive rights have corresponding Positive duty. Positive right therefore the right when
some positive act is required to be done by the person who has the corresponding duty. Thus
the person on whom such duty lies must do some positive act.

While on the other hand negative rights are those rights when some negative act by way of
omission is required. Negative rights correspond to negative duty, and the person on whom
such negative duty lies shall omit (not to do) such act.

4) Principal and Accessory rights -

The principal right is a basic or main right vested in Persona under law. They are Vital and
important Rights. While accessory right is incidental or consequential right. They are not
essential but are apparent to the more basic general right.

5) Perfect and Imperfect Rights -

Perfect right corresponds with perfect duty. Perfect rights are recognized and also enforced
by law and an action can be taken against the wrongdoer by filing a suit in Court of Law for
the breach of it.
While Imperfect right corresponds with Imperfect duty, which are not recognized by law and
hence cannot be enforced by law.

For example 'A' advanced loan to 'B'. 'B' is bound to repay that Loan. 'A' has perfect right to
recover loan from 'B' and 'B' has perfect duty to pay the amount of loan to 'A'.
If 'B' failed, then 'A' can file Suit against him in court of law for recovery of loan. But if it is
time-barred loan, for example no suit filed within the limitation period (within 3 years) and
'A' was sleeping over his right for a pretty long time. 'A' can claim for the same as it becomes
imperfect right which cannot be enforced by law.

6) Right in Re-proporia and Right in Re-aliena -

Right in Re-proporia is a right in respect of one's own property. Right in Re-proporia

4
contemplates absolute ownership. Thus it is the outcome of jurisprudence aspect of
ownership.

Whereas right in Re-aliena, is the right in respect of property of another person. Right in Re-
aliena is the outcome of jurisprudence aspect of dominant heritage and servient heritage. For
example - right of easement.

7) Vested and Contingent Right -

Vested and Contingent rights are depending on the relationship as to owner of right and right
itself. Vested right means which is already vested in person, the person already has such right
through it depends upon the happening of certain events, that event is going to happen. (See
also... Vested interest)

Whereas is in Contingent interest the right is dependent upon happening or non-happening of

certain events which may or may not happen.

8) Legal and Equitable Right –

Legal rights are the rights given by common law Courts of England. Common law was based
on statute by way of custom, usage. Equitable rights are the outcome of law of equity given
by the court of chancellor, or equity Court based on principle of natural justice and
conscience of Lord Chancellor.
By Judicature Act 1873, 1875 both systems are unified, but as per J. Snell 'Both the systems
flow in one stream but their water does not mix.'
After the unification of the both these systems English law came into existence. But still there
are certain principles and rights, which are classified as equitable right and legal right.

9) Corporeal and Incorporeal Right -

Here a fine distinction is made of the subject matter of the right. Corporeal rights are having
physical existence. For example - I owned a book, the book has physical existence, so my

5
right in respect of the book, is Corporeal in nature Whereas incorporeal rights are those right
in respect of such subject matter having no physical existence. For example - copyright of the
book or trademark. Both Corporeal Incorporeal rights are legally protected rights.

10) Primary and Sanctioning Right -

Primary right is basic right. It is independent Right. These are the right ipso facto. for
example - right in rem; right to reputation, Right to satisfy is the primary right. If right of
reputation is violated then there is legal remedy. in Tort or in Crime. There is force behind it.
Sanctioning rights are the consequential rights. They are not right ipso facto. They are right in
Persona, which originate from some wrong. For example - from violation of another right.
Thus Sanctioning Right is supporting right to primary right.

11) Public and Private Rights -

Public Rights are those Vested in by state. For example - right to use High-way, right to vote
etc. A private Right is one which is exercised by an individual to protect his benefit.

DUTY
Meaning of Duty:

"Duty is an obligation to do or omit to do something". In the legal sense, duty means " a
legal obligation to do or not to do something.

Example:
A son is under a duty to feed his dependent parents.

Definition of Duty:

According to Salmond " A duty is an obligatory act, that is to say, it is an opposite of which
would be wrong. Duties and wrongs are correlatives.

Hibbert defines legal duty as "the predicament or a person whose acts are liable to be
controlled by another with the assent and assistance of the state."

6
According to Prof. Dicey, " a duty is a species of obligation. People obey it due to indolence,
deference, sympathy, fear and reason .And also due to psychological, social and moral
pressures. The majority of duties are supported by State. The breach of the duty is
imprisonment or fine."

Kinds of Duties:

Duties may be classified as follows:

1) Legal Duties and Moral Duties:

A legal duty is an act the opposite of which is a legal wrong. It is an act recognized as a
duty by law and treated as such for the administration of justice. A moral or natural duty is an
act the opposite of which is a moral or natural wrong. A duty may be moral but not legal or
legal but not moral.

2) Positive or Negative Duties:

When the law obliges us to do an act, the duty is called positive, and when the law
obliges us to forbear from doing an act, the duty is negative.

3) Primary and Secondary Duties:

Primary duties are those which exist per se and independently of any other duty. An
Example of a primary duty is to forbear from causing personal injury to another. A secondary
duty is that which has no independent existence but exists only for the enforcement of other
duties. An example of secondary duty is the duty to pay a man damages for the injury is
already done to the person.

7
4) Universal General and Particular Duties:

According to Jenks universal duties are those, which are binding on all normal citizens of
the community. General duties are those, which are binding on specific classes of normal
persons. Particular duties are those, which are binding between the persons who have
voluntarily undertaken them.

5) Relative and Absolute Duties:

According to Austin Relative duty is one for which there will be corresponding duty.
Absolute duty is one, which has no corresponding right.

CONCLUSION
Rights and duties are co- existent, although there is a difference in option whether there must
be a right that co relates to the duty. Salmond says that there can be no point without a
corresponding duty and vice versa. According to this, every duty must be a duty towards a
person or some person, in whom a correlative right is entitled and conversely every right
must be against some person s upon whom, a correlative duty is imposed. Every right and
duty has a bond of legal obligation.