Right versus Duty

A loan is the simplest picture. When you lend a friend ten thousand rupees, one relation comes into being. Seen from your side it is a right to be repaid; seen from your friend's side it is a duty to repay. It is like a coin: heads and tails are not two coins but two faces of one. This note explains each face, the old debate on whether every duty has a matching right, and Hohfeld's tool for thinking precisely about both. The general theory of rights and duties is in Note 28.

Figure: Hohfeld's four pairs of jural correlatives: claim-right and duty, privilege and no-right, power and liability, immunity and disability

1. The Right and its Elements

Salmond defines a legal right as an interest recognised and protected by a rule of right, that is, a rule of law; respect for it is a legal duty, and disregard of it a legal wrong. Austin put the same relation from the other side: a party has a right when another is bound by law to do or forbear towards or in regard of him. Every legal right, on Salmond's analysis, has five elements. The table uses Salmond's own style of example: A buys a piece of land from B.

Note the words carefully: the owner is the person of inherence (the right inheres in him), not of 'inheritance', which is a different idea altogether. The person bound is the person of incidence (the duty falls on him). Salmond added that every right has a person of inherence and a person of incidence, but not every right has a material object: a right to reputation or to personal liberty has no physical thing as its subject matter.

2. The Duty and its Kinds

A duty, in Salmond's sense, is an obligatory act: an act whose opposite would be a wrong. A legal duty is one recognised and enforced by law, whose breach attracts a sanction. Duties are classified in several ways.

3. Right and Duty Compared

4. Is Every Right Matched by a Duty?

The standard texts credit Salmond with the view of strict correlativity: there can be no right without a correlative duty and no duty without a correlative right. They are the same relation described from opposite ends. Where no one else is bound, there is no right; where a duty is owed, someone holds the right.

Austin disagreed. He divided duties into relative duties, which answer to rights, and absolute duties, which do not. His absolute duties were of four kinds: self-regarding duties (such as the duty not to commit suicide or not to be drunk); duties towards persons indefinitely or society at large (such as the duty not to commit a public nuisance); duties towards the sovereign (since, for Austin, the sovereign could not hold legal rights against himself); and duties regarding animals and other non-persons (such as the duty not to be cruel to animals). Supporters of correlativity reply that these duties do have right-holders, for example the State or the public, or, on an interest theory, the animals themselves (Note 71).

5. Hohfeld: Correlatives and Opposites

Wesley Newcomb Hohfeld, in 'Some Fundamental Legal Conceptions as Applied in Judicial Reasoning' (Yale Law Journal, 1913 and 1917), showed that much of the correlativity debate comes from using 'right' loosely. He identified eight conceptions, which he called the lowest common denominators of the law, and arranged them in two sets of relations. Correlatives describe one relation from both ends: if A has one, B must have the other. Opposites describe the negation of a position in the same person: if A has one, A cannot have the other.

Hohfeld's own illustration was a shrimp salad. If its owners tell X that he may eat it, X has a privilege to eat: he is under no duty not to. But they have not promised not to interfere, so X has no right that they let him eat it. A privilege is the absence of a duty, not a claim against others. Once the terms are kept apart, strict correlativity holds within each pair. Hohfeld also distinguished multital rights, held against a large and indefinite class of persons (rights in rem), from paucital rights, held against one or a few definite persons (rights in personam). Hohfeld's term is 'privilege'; 'liberty' is the usage of Glanville Williams and Salmond. No Indian case has applied Hohfeld as such, though his vocabulary is widely used in teaching.

6. Kinds of Rights in Brief

Salmond classifies rights as perfect and imperfect (a time-barred debt is an imperfect right: the remedy is barred, not the right), positive and negative, in rem and in personam, proprietary and personal, in re propria and in re aliena, principal and accessory, primary and sanctioning, legal and equitable, and vested and contingent. Each is explained in Note 28, and several are compared in Notes 73 to 78.

7. The Primacy of Duty

Some jurists reverse the usual emphasis. For Kelsen, the basic concept is duty: a person is under a legal duty when the contrary conduct is the condition of a sanction. A right is only the reflex of another's duty, or, in the technical sense, the legal power to set the sanction in motion (Note 12). Duguit went further and denied subjective rights altogether; there are only social functions (Note 69). Indian thought has a similar strand: Gandhi taught that rights worth having flow from duties well done.

The Constitution reflects this balance. Art. 51A, inserted by the 42nd Amendment (1976), lists fundamental duties, such as respecting the Constitution, the National Flag and the National Anthem, protecting the natural environment and having compassion for living creatures, and developing the scientific temper. The 86th Amendment (2002) added clause (k), the duty of a parent or guardian to provide opportunities for education to a child between six and fourteen, alongside the new right to education in Art. 21A. Fundamental duties carry no direct sanction, but courts use them to interpret laws and rights.

8. Indian Cases

9. Frequently Asked Questions

Q. Can there be a duty without a right?
A. Austin said yes, for absolute duties such as self-regarding duties and duties towards society or animals. The strict correlativity view credited to Salmond says no. Hohfeld shows that correlativity holds exactly within each of his four pairs.

Q. What is the difference between jural correlatives and jural opposites?
A. Correlatives link two persons in one relation (A's right, B's duty). Opposites are mutually exclusive positions of one person (A cannot have both a right and a no-right about the same thing).

Q. Does every right need a material object?
A. No. Every right has a person of inherence and a person of incidence, but rights such as reputation or personal liberty have no physical thing as their object.

Q. Are fundamental duties enforceable?
A. Not directly by writ, but AIIMS Students' Union (2001) held that they guide the interpretation of the Constitution and laws.

See also: Note 28 (rights and duties), Note 29 (theories of rights), Note 71 (will versus interest), Note 73 (right versus liberty), Note 74 (right versus power), Note 75 (power versus immunity).