Legal Rights and Duties

Picture a cricket match. The batsman has a right that no fielder stand on the pitch, and the fielder has a duty to keep off it. The batsman is free (privileged) to leave a ball outside off stump, and the bowler has no claim that he play it. The captain has a power to change the batting order, and his team is liable to that change. A spectator's shout cannot give the batsman out: the batsman has an immunity and the spectator a disability. One game, many different advantages, all loosely called rights. This note separates them: what a legal right is, what it is made of, how it links to duty, Hohfeld's precise vocabulary, the kinds of rights and duties, and how Indian law uses these ideas.

Figure: Hohfeld's eight jural concepts: the four correlative pairs on the left (the same relation seen from two persons) and the four opposite pairs on the right (the presence or absence of a position in one person)

1. The Meaning of a Legal Right

Jurisprudence is concerned with the legal right, the right which the legal order itself recognises and enforces, as distinct from moral, natural or human rights (Notes 77, 78). Two families stand out. The interest family (Jhering, Salmond, Pound) says a right is an interest that law protects. The will family (Holland, and in its modern form Hart) says a right is a legally backed control over another person's conduct. A third group, the sceptics, either reduces rights to duties (Kelsen) or denies them altogether (Duguit). The debate between the first two is taken up fully in Note 29.

Fix three points. Salmond's phrase is a rule of right, meaning a rule of law administered by the State. The capacity of controlling the actions of others is Holland's definition, not Austin's, a common textbook slip. And Allen's formula is the best compromise answer: a right needs both an interest to protect and a legally guaranteed power to realise it.

2. The Five Elements of a Legal Right

Salmond analysed every legal right into five elements. Take a simple case: A buys a plot of land from B and his neighbour C must not trespass on it.

3. The Correlation of Rights and Duties

A right and a duty are, in general, the same legal relation seen from its two ends. If A has a right that B pay him a hundred rupees, B has a duty to pay A a hundred rupees. Salmond held that every right has a correlative duty and every duty a correlative right: there can be no right without a duty and no duty without a right. On this view, a duty that is owed to no one is not a duty at all, and a right that binds nobody is empty.

Austin disagreed. He distinguished relative duties, which answer to a right in some determinate person, from absolute duties, which answer to no right. His class of absolute duties is wider than the phrase 'duties to the community' suggests. It covers four kinds: (a) self-regarding duties, owed by a person in respect of himself, such as the old duties not to attempt suicide or not to be drunk in public; (b) duties towards persons indefinitely or the community at large, such as the duty not to commit a public nuisance; (c) duties not regarding persons at all, such as the duty not to be cruel to animals; and (d) duties towards the sovereign, who in Austin's theory cannot himself hold legal rights against his subjects because he is the source of all positive law. Since there is no determinate right-holder in any of these cases, Austin says the duty is absolute.

The disagreement is partly verbal. If the State or the community can hold rights, even criminal-law duties have a correlative right and Salmond is correct; if only determinate persons can, Austin's absolute duties must be admitted. Hohfeld answers neatly: a duty always correlates with a claim-right, but a privilege, power or immunity need not correspond to anyone's duty.

4. Hohfeld's Analysis of Jural Relations

Wesley Newcomb Hohfeld, a professor at Yale, published 'Some Fundamental Legal Conceptions as Applied in Judicial Reasoning' in the Yale Law Journal in two parts, in 1913 and 1917. He noticed that judges used the single word right for four quite different legal advantages, and that many confused judgments came from sliding between them. He called his eight concepts the 'lowest common denominators of the law': every legal relation, however complex, could be broken into them. Each advantage has a correlative (the position of the other person in the same relation) and an opposite (the absence of that advantage in the same person).

The four correlative pairs explained

Right and duty. A right in the strict sense is a claim that another person act or forbear. If A has a claim that B shall keep off his land, B is under a duty to keep off. Hohfeld's test: a right is always a claim against someone, and it is matched by a duty in him.

Privilege and no-right. A privilege is freedom from a duty. If A is privileged to enter his own land, he is under no duty to keep off it, and others have no-right (no claim) that he keep off. Hohfeld's famous example is the shrimp salad: the owners of a salad tell X that he may eat it. X has a privilege to eat it, since he owes them no duty to refrain; but they have not promised not to interfere, so X has no right that they refrain from stopping him. A privilege is therefore not a claim. The term privilege is Hohfeld's own; Salmond and Glanville Williams call the same idea a liberty.

Power and liability. A power is the legal ability to change legal relations, one's own or another's, by a voluntary act: to make a will, sell property, make an offer, appoint an agent. Its correlative is a liability, the position of the person whose legal relations are liable to be changed by the exercise of the power. When A makes B an offer, A has given B a power to create a contract by acceptance, and A is under a liability to that change. Note that liability here is a technical term, not the liability for wrongs discussed in Note 34.

Immunity and disability. An immunity is freedom from having one's legal relations changed by another. Its correlative is a disability, the absence of power in that other. A citizen's fundamental rights often take this form: the State is under a disability (no power) to make a law abridging them, and the citizen has an immunity. A property owner is immune from having his land sold by a stranger, who has no power to sell it.

The opposites explained

Opposites describe the same person. If A has a right, he cannot at the same time have no-right in that matter; if he has a privilege to do X, he is not under a duty to refrain from X; if he has a power, he is not under a disability; if he has an immunity, he is not under a liability. In short: right against no-right; privilege against duty; power against disability; immunity against liability. The figure lays the correlatives and opposites side by side.

Hohfeld also distinguished multital rights (many rights, each against a different person, such as the owner's rights against all the world: Salmond's rights in rem) from paucital rights (rights against one or a few definite persons: rights in personam). Later writers group the first two pairs as first-order relations (about conduct) and the last two as second-order relations (about changing legal relations). For the paired comparisons see Notes 72 to 75.

5. The Kinds of Legal Rights

Salmond gives a long list of classifications. Each is a pair, and each should be learnt with an example, because problem questions ask you to classify a given right.

Two classifications that need a closer look

The time-barred debt. This is the stock imperfect legal right, not a mere moral right. Section 3 of the Limitation Act 1963 bars the remedy, not the right. The law still recognises the debt: under s.25(3) of the Contract Act a written, signed promise to pay it is a valid contract, and under s.60 a creditor may appropriate an unspecified payment to it. Contrast s.27 of the Limitation Act, which for suits for possession of property extinguishes the right itself at the end of the period: the foundation of adverse possession (Note 30).

Encumbrances. A right in re aliena burdens another's ownership. Salmond's four chief kinds are leases, servitudes (such as a right of way or light), securities (mortgage, pledge, lien) and trusts. The encumbrance is dominant; the owner's burdened right is servient (see Note 31).

6. Legal Duties and Their Kinds

A legal duty is an act or forbearance which the law requires; its breach is a legal wrong and attracts a sanction. Salmond defines duty as an obligatory act, one the opposite of which would be a wrong. Duties are classified much as rights are.

Fundamental duties under the Constitution

On the recommendation of the Swaran Singh Committee, the 42nd Amendment Act, 1976 inserted Part IVA and Art. 51A, with ten fundamental duties, among them to abide by the Constitution, to protect the sovereignty and integrity of India, to protect the environment and have compassion for living creatures, and to develop the scientific temper. The 86th Amendment Act, 2002 added clause (k): a parent or guardian must provide opportunities for education to his child between six and fourteen, the counterpart of Art. 21A. There are now eleven duties. They are not enforceable by writ, but courts use them to interpret laws and to test the reasonableness of restrictions on rights. Many are absolute duties in Austin's sense, owed to the nation rather than to a determinate person.

7. Rights and Duties in Indian Cases

Indian courts constantly classify rights: is it fundamental, constitutional, statutory, or merely a privilege? The answer decides which remedy lies and how easily the right can be curtailed.

8. Evaluation

Salmond's analysis is complete and practical, but it uses right for everything; Hohfeld cures that by naming each advantage. Critics say Hohfeld analysed only two-person relations and ignored the purpose of rights, which is why the will and interest theories (Note 29) are still needed to explain why law creates rights. Kelsen and Duguit remind us that rights may reduce to duties or social functions, an idea echoed in India's fundamental duties.

9. Frequently Asked Questions

Q. Can there be a right without a duty?
A. In the strict (claim) sense, no: every claim-right has a correlative duty. In the wide sense, yes: a privilege, power or immunity need not correspond to anyone's duty. Austin also admitted absolute duties without correlative rights, such as duties towards animals or the community.

Q. Is a time-barred debt a legal right or a moral right?
A. A legal right, though an imperfect one. The Limitation Act bars the remedy by suit, not the right, and the law still recognises the debt: a written promise to pay it is enforceable under s.25(3) of the Contract Act, and a creditor may appropriate payments to it under s.60.

Q. Are fundamental duties enforceable?
A. Not directly by writ. But courts use Art. 51A to interpret laws, to uphold reasonable restrictions on rights and to guide policy, as the Supreme Court did in AIIMS Students' Union v AIIMS (2001).

See also: Note 29 (theories of rights), Note 34 (liability), Note 36 (title), Note 72 (right v duty), Note 73 (right v liberty), Note 74 (right v power), Note 75 (power v immunity), Note 76 (rights in rem v in personam), Note 77 (legal v moral rights), Note 78 (natural v legal rights).