LEGAL RIGHTS
"A legal right is an interest recognized and protected by a rule of
legal justice - an interest the violation of which would be a legal
wrong, done to him whose interest it is, and respect for which is Legal Rights
a legal duty". On a more basic level, legal rights are those rights
afforded by Positive Laws, which can be created by constitutions,
& Essential
statutes, judges (common law), regulations, ordinances, et Elements
cetera.
NAME: SAVEEZA KABSHA
ROLL NO: 2015-LLB-022
SEMESTER: 6TH
COURSE: JURISPRUDENCE II
INSTR: MA’AM KHADIJA MEHMOOD
DEPTT: LAW
LEGAL RIGHTS 1
TABLE OF CONTENTS
1. Introduction ……………………………………………………………………………..
2. Dictionary meaning of Legal Right ………………………………………………
2.1. Generally ……………………………………………………………………
2.2. Legally …………………………………………………………………..
3. Definitions Of Right And Legal Rights In English Jurisprudence ……………………
3.1. According to Holland ………………………………………………………
3.2. According to Austin ………………………………………………………
3.3. According to Jhering …………………………………………………………
3.4. According to Salmond …………………………………………………………….
4. Definition Of Legal Rights according to senses ……………………………………………
4.1. Restricted Or Popular Senses ……………………………………………………..
4.1.1. According to Gray ………………………………………………………….
4.1.2. According to Justice Holmes ……………………………………………….
4.2. Wider Sense ………………………………………………………………………..
5. Brief Explanation …………………………………………………………………………….
6. Essential Characteristics Of Legal Right ……………………………………………………..
6.1. According to Salmond ……………………………………………………………
6.1.1. The Person of Inherence ………………………………………………..
6.1.2. The Person of Incidence …………………………………………………….
6.1.3. Content of right …………………………………………………………..
6.1.4. Object of the right ………………………………………………………
6.1.5. Title to the right ……………………………………………………….
6.2. According to Paton …………………………………………………………….
6.2.1. Compensation …………………………………………………………….
6.2.2. Recognized, yet unenforceable …………………………………………….
6.2.3. Courts’ limited jurisdiction ………………………………………………….
7. Conclusion …………………………………………………………………………………….
REFERENCES …………………………………………………………………………………….
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1. Introduction
There can be no duty without a right and according to Hibbert “a right is one person‘s
capacity of obliging others to be or forbear by means not of his own strength but by the
strength of a third party. If such third party is God, the right is Divine. If such third party is
the public generally acting through opinion, the right is moral. If such third party is the state
acting directly or indirectly, the right is legal.” According to Salmond, every legal has some
essential to qualify as legal right.
(d’Almeida, Luis Duarte, 2016)
2. Dictionary meaning of Legal Right
2.1. Generally
A claim recognized and delimited by law for the purpose of securing it
2.2. Legally
The interest in a claim which is recognized by and protected by sanctions of
Law imposed by a state, which enables one to possess property or to engage
in some transaction or course of conduct or to compel some other person to
so engage or to refrain from some course of conduct under certain
circumstances, and for the infringement of which claim the state provides a
remedy in its courts of justice
(White, Alan R., 1984)
3. Definitions Of Right And Legal Rights In English Jurisprudence
"Right” in the ordinary sense of the terms means a number of things, but it is generally taken
to mean "the standard of permitted action within a certain sphere". As a legal term, it means
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the "standard of permitted action by law". Such permitted action of a person is known as his
legal right. Here we are concerned with legal rights only.
"A legal right is an interest recognized and protected by a rule of legal justice - an interest
the violation of which would be a legal wrong, done to him whose interest it is, and respect
for which is a legal duty".
(Wellman, Carl, 1985)
3.1. According to Holland
“A right is the capacity residing in one man of controlling, with the assent and
assistance of the state the actions of others.”
(Prof. HOLLAND, 1910)
3.2. According to Austin
“Right is a faculty which resides in a determinate parly or parties by virtue of a given
law and which avails against a party or parties other than the party or parties in
whom it resides.”
(Austin, John, 1885)
3.3. According to Jhering
“Right is a legally protected interest.”
(Rudolph von Jhering, 1870)
3.4. According to Salmond
“A right is an interest recognised and protected by a rule of right.” It is an interest
respect of which is a duty and disregard of which is a wrong.
(Salmond, 1901)
4. Definition Of Legal Rights according to senses
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The term legal has been used in two senses:
4.1. Restricted Or Popular Senses
4.1.1. According to Gray
“A legal right is that power which a man has to take a person or persons do or
refrain doing a certain act or certain acts. So far as the power arises form
society imposing a legal duty upon a person or persons.
(Gray, 1876)
4.1.2. According to Justice Holmes
“A legal right is nothing but a permission to exercise certain natural power
and upon certain conditions to obtain protection, or compensation by the aid
public force.”
(Holmes, 1881)
4.2. Wider Sense
In a wider sense, legal right includes any legally recognized interest, whether it
corresponds to legal duty or not. It is an addition on benefit conferred upon a person
by a rule of law.
5. Brief Explanation
I. Right endowed upon by a law is called legal right.
II. Govt. can withdraw these rights any time.
III. No remedy lies for its violation except provided in law itself.
(d’Almeida, Luis Duarte, 2016)
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Legal rights come down from natural law, these are universal rights of liberty, justice, fairness.
These laws, natural laws, create rights that are inherent in our very existence on this earth. This is
a view held by John Locke and very much adopted by the United States Founding Fathers.
On a more basic level, legal rights are those rights afforded by Positive Laws, which can be
created by constitutions, statutes, judges (common law), regulations, ordinances, et cetera.
Thus, rights can either by very general and inherent (natural laws) or very specific and externally
imposed (positive laws of statute).
These rights, wherever their source, afford protection upon various activities, vague and specific,
and, if infringed upon, permit recourse at some level—usually through the legal system.
6. Essential Characteristics Of Legal Right
6.1. According to Salmond
There are five characteristics or essential elements of legal right according to
Salmond, though according to others, such as Keeton and Holland, there are only
four characteristics, as for a title to them is only a source of a right and so not
characteristic.
6.1.1. The Person of Inherence
It is vested in person who is the owner of the right. He is the subject of the
legal right and in sometimes described as the person of inheritance. The
owner of a right need not be a determinate or fixed person. If an individual
owes a duty towards society at legal, an indeterminate body is the subject of
inherence.
6.1.2. The Person of Incidence
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It is available against a person who is bound by the correlative duty to respect
that right. Such a person is called the person of incidence or the subject of the
duty.
6.1.3. Content of right
Another essential element of a legal right is its content or substance. It may
be an ‘act which a person bound by the duty has to do or it may be
‘forbearance’ on his part in favour of the person entitled to the right.
6.1.4. Object of the right
The act or forbearance relates to something which is designated the object or
subject matter of the right.
6.1.5. Title to the right
Another essential element of a legal is the title to the right. Facts must how
the right vested in the owner of the right. That may be by purchase, gift,
inheritance etc.
(Salmond, 1901)
6.2. According to Paton
Paton also agrees that one of the essential conditions of a legal right is that it should
be enforceable by the legal process of the State. He, however, says that there are
three exceptions to this rule
6.2.1. Compensation
It is not necessary that the state should always necessarily enforce all the
legal rights. There may be cases when instead of enforcing a right, the state
may redress the wrong by; getting compensation paid to the injured party.
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6.2.2. Recognized, yet unenforceable
There are certain rights which recognised by law but not en-forced by it. For
Example —In a time-barred debt, the right of the creditor to recover the debt
is an “imperfect right”.
6.2.3. Courts’ limited jurisdiction
There are certain laws which do not confer, right of enforcement to the
courts, therefore, their enforcement is not possible although they are
recognised by law e.g., International Court of Justice has no power to compel
enforcement of its decrees under the International Law.
(G. W. Paton, 1979)
7. Conclusion
To conclude, I can say, that to qualify a legal right as a legal right, it must possess some
characteristics or essential out of which one is the object of right. An object is an essential in
the idea of a right. A right without an object in respect of which it exists is as impossible as a
right without a subject to whom it belongs.
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REFERENCES
d’Almeida, Luis Duarte, 2016. “Fundamental Legal Concepts: The Hohfeldian
Framework”, Philosophy Compass, 11: 554–569
White, Alan R., 1984. Rights, Oxford: Basil Blackwel
Wellman, Carl, 1985. A Theory of Rights, Totowa, NJ: Rowman & Allanheld
Prof. HOLLAND: Jurisprudence, P.83
Austin, John, 1885. Lectures on Jurisprudence, or the Philosophy of Positive Law,
5th edition, R. Campbell (ed.), 2 volumes, London: John Murray.
Rudolph von Jhering, Jurisprudenz des taglichen Lebens (1870; Eng. trans., 1904
Law in Daily Life, A Collection of Legal Questions Connected with the Ordinary Events
of Everyday Life)
SALMOND : Jurisprudence (12th Ed.) P.217
GRAY : Nature and sources of Law P.18
HOLMES : The Common Law, P.214
d’Almeida, Luis Duarte, 2016. “Fundamental Legal Concepts: The Hohfeldian
Framework”, Philosophy Compass, 11: 554–569
SALMOND : Jurisprudence (12th Ed.) P.217
G. W. Paton, A Textbook of Jurisprudence, Oxford, Caledron Press, 1979
