Rights and Duties- Jurisprudence

This article is written by K.Lasya Charitha pursuing BA LLB in Damodaram Sanjivayya National Law University, Visakhapatnam. In this article, the researcher discusses theories and the classification of rights and duties in Jurisprudence.

INTRODUCTION

Rights and Duties are interrelated, because where there are rights, there are duties, and people are given rights to protect them and fulfill their duties to the state. Duties and rights go hand in hand. It is not wrong to say that both twins grew up from one root. Both concepts of rights and duties have been thoroughly discussed under the Jurisprudence. Many internationally renowned lawyers and scholars try to define their ideas and criticize the ideas of others.

Meaning of Rights

The Rights in the general sense mean different things, but it is usually understood as the standard of actions allowed in a given area. As a legal term, it refers to the standard of conduct permitted by law. Such permitted action of the people is called their legal right. The Legal right should be distinguished from the moral right or natural right. Legal rights are the interests recognized and protected by law. Violation of this interest is a violation of the law and respect for that is a legal duty. Moral law or natural law refers to the interests recognized and protected by natural justice. Violating this interest would be moral evil and respect, for that is, a sense of moral duty.

Definitions of Rights

Broadly speaking, it means that actions permitted by law are called legal rights, or actions recognized or protected by the state are called legal rights. The definition is given by many lawyers such as Holland, Austin, Pollock, etc.

As per Austin, right is personnel which lives in a determinate party or parties by temperance of a given law and which profits against a party or parties (or answers to an obligation lying on a party or parties) other than the party or parties in whom it lives. As indicated by him, an individual can be said to have a privilege just when another or others are bound or obliged by law to accomplish something or hold back concerning him. It implies that a right has consistently a relating duty. This definition, as it shows up on its very face, is defective on the grounds that in this definition there is no place for blemished rights.

Holland in one way or another follows the definition given by Austin. As per him, “capacity residing in one man of controlling, with the assent and assistance of the state the actions of others.”

Salmond characterizes directly from an alternate point. He says, “A right is an interest recognized and protected by a rule of right’. It is an interest in respect for which is a duty, and disregard of which is wrong.”

According to Gray: A legitimate right is “that power which the man has, to make an individual or people to do to or limit from doing a specific demonstration or acts so particularly far as the power emerges from society forcing a lawful duty upon the individual or people.” He expresses that the “right isn’t simply the interest, it is the way to appreciate the interest got.”

In the case of the State of Rajasthan versus Union of India, the Supreme Court expressed that “Legal rights in the exact sense are correlatives of legitimate duties and lawful rights are characterized as the interests which the law ensures by forcing duties on different people. In any case, the lawful right in the exacting sense implies right is the insusceptibility from the legal power of another. Immunity is no subjection by any means.”

Rights Guaranteed under the Constitution of India

The Constitution of India has ensured certain rights to the residents of India which are known as Fundamental Rights which are viewed as the main rights. On the off chance that these rights get disregarded, the individual has the option to move to the Supreme Court of India or the High Court of any state for enforcement of these rights.

The fundamental rights guaranteed by the Constitution of India are: ✓ Article 14: Right to Equality

✓ Article 19: Right to Freedom

✓ Article 21: Right to life

✓ Article 23 and 24: Right against Exploitation

✓ Article 25: Right to Freedom of Religion

✓ Article 32: Right to Constitutional Remedies

Theories of Rights

❖ Interest Theory

The interest theory was developed by Rudolf Von Jhering. Rudolf Von Jhering said that legal rights are interests protected by law, and he emphasizes the interests of the people, not the will of the people. The main goal is to protect people’s interests and avoid conflicts between personal interests. You are interested in the life of the community itself, and you are not bound by any laws.

Salmond’s opinion: He Supports the theory, but he states that compliance with the theory is an important condition. He Criticized the theory of interests on the ground

that interests are not protected by the state. In order to confer a legal right, the important thing is to protect the interests and be recognized by the state.

Gray‘s point of view: He said that the theory is partly correct because the lawful right itself is not an interest, it is only to protect the personal interests. He also pointed out that legal rights impose legal obligations on individuals through “state” laws, thereby giving them the right to take certain actions/temperance.

Dr. Allen‘s point of view: It can be said that the two theories are not contradictory, but this is a combination of the two theories. He tried to combine these two theories and pointed out that the essence of a legal right is not the right protected by law, nor the right protected by itself, but the right to exercise legal protection of interests. It can be concluded that both theories are an important part of the legal right.

❖ Will Theory

This theory is supported by Kant, Hagel, Hume. According to this theory, “rights are the inalienable attributes of human will.” The purpose of the law is to achieve freedom of speech. The Subject Matter comes from human will. Austin, Pollock, and Holland defined right as will. John Locke believes that “the foundation of the right is the will of man.” Puchta believes that legal rights give a person the right over an item, and according to the law, the item can obey the wishes of the person who uses the right.

Duguit’s view: According to him, the basis of law is not subjective will, but objective will. The purpose of the law is to protect only those measures that further support social solidarity. In addition, he found that subjective law theory is a metaphysical abstraction.

❖ Protection Theory

The state grants all rights in the form of laws and regulations, so rights are permitted by government agencies. Therefore, the most significant feature of the legal right is its recognition by the legal system and its judicial enforceability.

Elements of Legal Right

All legal issues and practices revolve around the rights and duties of individuals and authorities. Despite the existence of moral rights, all rights in our time are legal. According to Salmond, all legal rights include the following elements:

➢ Person of Inheritance or Subject of right object: This is the person who owns the right. This is the subject of law. Such people are called persons of inheritance. Even if the property is bequeathed to the unborn child, even if it is not safe, the unborn child still owns the property.

➢ Person of incidence or Subject of Duty: Another person has a responsibility to respect and recognize the rights of other persons. That person has a legal duty and is called a person of incidence.

➢ The content or subject matter of the legal right: The object of the legal right is an essential element. This is a legal issue; it refers to doing something or not doing certain actions or indulgence; it forces a person to abstain from voting or to act on behalf of a person with legal rights. Example: Y purchased a Van of 20,000 rupees. Here, Y is the subject of the right. Subject (Y) has legal rights and can exclude others.

➢ Objects of legal rights: Objects of rights are things or objects over which legal rights are exercised. Example: A bought a car at a price of 100,000 rupees, and the car here is an object.

➢ Legal right title: Title is the process of transferring or transferring rights to an individual. These are certain events whose previous owners have obtained their rights, such as through purchases, gifts, or wills.

Classification of Rights

➢ Right in rem and Right in persona: Right in rem is a right that is available to the entire society. Right in persona refers to the rights that individuals can use. An example of a breach of contract: If a breach of contract occurs, the party initiating the lawsuit will bring a lawsuit against the party concerned. Rights in persona are temporary and can become right in rem. Right in rem is permanent.

➢ Positive and negative rights: A positive right is a right when an action must be carried out by a person who has the corresponding responsibility. The person in charge must take positive action. Negative rights are the right to prevent you from taking certain actions. Negative rights correspond to negative responsibilities. The person on whom this duty is imposed is deprived of the opportunity to perform certain actions.

➢ Personal rights and proprietary rights: Personal rights are rights that respect the owners of the right. Personal rights have no economic value and are related to them i.e., Personal wealth or well-being. For example, the right to dignity, the right to freedom of speech. Proprietary right is granted to the owner of the property. These rights are rights with a certain currency or economic value and are estates of a person. For example patent rights, land rights, debts, etc.

➢ Perfect and imperfect rights: Perfect rights are protected and recognized by law, and infringers can be sued. Example: B borrows a loan from A and he needs to repay the loan, and A has the right to demand the loan amount. If B fails to pay, A has the right to file a lawsuit. Incomplete rights refer to rights that are not recognized or protected by law. Example: If the loan expires, you can claim the money, but you cannot execute it.

➢ Principal and Accessory Rights: According to law, the principal right is the most important. This is a basic right granted to people. Accessory rights are indirect rights or security rights. They are not important, but they are considered to be a fundamental right.

➢ Right in Re-aliens and Right in Re-propria: The rights in Re-aliena are available rights against the property of others. One example is the right to easement. This is the result of inheriting the concept of Jurisprudence from rulers and ministers. The right in the Re-propriais the right related to one’s own property, and this right leads to absolute ownership of the property. This is the result of the legal concept of ownership.

➢ Corporal and Incorporeal rights: Both rights are protected by law. Corporal rights are rights over tangible objects or material objects. These rights refer to the rights over objects that can be seen or touched. Incorporeal rights are rights to objects that cannot be seen or touched. Example: the right to reputation.

➢ Legal and Equitable rights: legal rights are protected by common law (ie, English courts). Common law depends on habit and custom. Equitable rights are protected by the equity court or the court of chancellor. The basic principles are natural justice, equity, fairness, and Clean conscience.

➢ Primary and Sanctioning Rights: Primary right is very important, and it is also a very basic right. These rights are independent in nature and have a Binding force. They are right in rem. For example, right of reputation. If these rights are violated in this situation, the person can go to court. This right is protected by law and takes the form of compensation, fines, or imprisonment. Sanctioning rights are the ultimate rights. These are rights that support primary rights. They are right in persona which results in some wrongdoing. Example: in violation of primary rights and private rights.

➢ Public and Private Rights: Public right is the right enforced by the state. For example, voting rights, travel rights, etc. Private rights are exercised for personal benefit. Examples: the right to sleep, the right to drink water.

➢ Vested and Contingent Rights: vested rights are rights granted to someone from the beginning. There is no need to do anything to grant someone these rights. It depends on the current situation. Contingent rights are rights granted to individuals on the occurrence or nonoccurrence of certain actions. This right depends on future actions. When a prescribed act occurs, only then the person is granted these rights.

Concept of Duties

Duty is also an action. Duty is a service to others, A person is responsible for a country and a man. It acts against unfair laws. These are the main duties enforced by the law. If the duty is not properly performed, it will constitute an offense under the law. The kinds of duties consist of moral and legal duties. The classification of duties includes primary and secondary duty, positive and negative duty, and absolute and relative duty, such as protecting and maintaining the environment. Cleanliness is a person’s responsibility to the country.

Duties under the Constitution of India

Article 51-A of the Constitution of India guarantees certain duties to all Indian citizens. Article 51-A of the Constitution of India stipulates that all Indian citizens must abide by the provisions of the Constitution and respect the national flag and the National anthem:

1. To safeguard the sovereignty and integrity of India

2. To follow the noble ideals of a national struggle

3. To defend the country and contribute to national service when called 4. To preserve the national heritage of the country;

5. To promote and maintain the harmony of brotherhood amongst the people of India. 6. To protect the dignity of women

7. To protect the natural habitat, including forests, lakes, rivers, and wildlife; 8. To protect public property and to avoid violence;

9. To contribute to the development of the nation in all spheres.

Classification of Duties

➢ Moral duty and legal duty: Legal duties are opposite to legal rights, and are recognized by the law in the administration of justice. Moral duty is the opposite of moral right. Although it is not recognized by law, it is implemented in accordance with established norms and social values.

➢ Antecedent duty and remedial duty: The duty that exists independently of another duty is the antecedent duty, and the duties arising from the infringement of rights constitute the remedial duties.

➢ Fundamental duties and legal duties: Fundamental duties are obligations imposed over citizens in accordance with their country and the constitution, while legal duties are obligations imposed by laws and regulations.

➢ Positive duty and negative duty: When the law forces us to take a certain action, it is called a positive duty, and when the law forces us not to take a certain action, it is called negative duty.

➢ Primary duty and secondary duty: Primary duty is an independent duty, and is an absolute duty, independent of other duties, while secondary duty is a duty that is not independent of other duty, and is the result of a violation of a duty.

➢ Vested duty and Contingent duty: Vested duty is a direct duty, while contingent duty is conditional duty.

➢ Duty in rem and duty in personam: Duty in rem is the duty with respect to ownership of property, while Duty in personam is the duty with respect to human dignity and transitional rights.

➢ Duty in repropria and duty in realiena: The duty in repropria means an absolute duty to own property, and the duty in realiena means the duty of partial property.

➢ Corporeal duty and incorporeal duty: Corporal duties are duties over physical property, while incorporeal duties are duties for non-physical properties like intellectual property rights.

➢ Absolute duties and Relative duties: Absolute duties are not corresponding and are not relative, while relative duties are related to each other and are corresponded with a man’s duty, which is interdependent.

Conclusion

Therefore, the concept of rights and duties occupies an important position in all legal systems in the world. Without rights and duties, citizens can only exist as animals. Merely granting of rights and duties is of no use, If they do not have the support of the rule of law, this is the legal protection that can be enforced in court. In modern times, the concept and scope of rights and duties have continued to expand, and even non-human rights are important and recognized. Various trends are seen in the practice and application of these rights and duties. The courts have adapted to the changing needs of society.

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