Introduction to legal right:
Legal Right generally means an interest or facility or privilege or immunity or freedom. In this way right for the purpose of jurisprudence is called legal right. Austin in his theory has separated the subject matter of jurisprudence from morality or materiality.
He gave the concept of positive law. So here also right means positive law right only, which is a term of a legal right. A legal right is recognized by law. It is different from the moral right.
Moral right is violated is called moral wrong. The violation of natural rights is called natural wrong. But these wrongs are not remedial under the law while if a legal right is violated then it will be legal wrong which is remedial under law.
Definition of Jurists:-
“ Right is a faculty which resides in a determinate party 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.”
“ Right is an interest recognized and protected by the rule of right.” Here the rule of right means the rule of law or law of the country. When the interest of a person is protected by the rule of law then it is called right.
Salmond’s definition involves two points, firstly that right is an interest, and secondly, it is protected by the rule of right. It means that it relates to his (person) interest i.e., life liberty, health, and reputation, etc.
He has criticized the interest theory propounded by Salmond, Ihering and Heck and he has supported the view that right is not an interest but that means by which the interest is secured.
“right is as a capacity residing in one man of controlling, with the assent and assistance of the state the action of others.”
“That 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:-
1. It is not necessary that the state should always necessarily enforce all the legal rights.
2. There are certain rights which recognized by law but not enforced by it for example: In a time-barred debt, the right of the creditor to recover the debt is an “ imperfect right”
3. There are certain laws that do not confer the right of enforcement to the courts, for example, the International Court of Justice has no power to compel enforcement of its decrees under International Law.
Theories of Legal right:-
There are two theories of legal right:
1. WILL THEORY:
This theory is based upon the will of human beings. It says that a right reflects the inner will of a human being. Austin, Holland, Halmes, and Dov recognized this theory of right. According to them, a person wants o remain in the world freely and according to his own choice because a man is born free.
2. Interest Theory:-
This theory says that interest is the base of the right. It is the only interest that is recognized by law. This theory reflects the external nature of the human beings. A supporter of this theory says that there are many interests in the world. These interest which is protected and recognized by law are called right.
See also Natural law theory
ELEMENTS OF LEGAL RIGHT:-
1. Subject: here means a person who has rights. So there must be a person for rights
2. Act of Forbearance:- Right means some standard of action permitted by law. In a right either an act is done or an act is forbidden. This is also called as the content of the right.
3. Object:- There must be an object upon which the right is exercised. Mainly there are three essential elements of right e.g. Lives in a house. Here :
(i) A has the right to live in the house.
(ii) A is subject, a house is an object, and
(iii) His living in the house is act content. But some writers give some more elements of the right.
4. Correlative duty: For right, there must be a correlative duty. In the above example, ‘A’ has the right to live in the house but other persons have a correlative duty not to disturb him.
Almost all jurists agree on the point because one cannot exist without the other. Here Austin does not agree with this He says that the duty may be divided into two kinds i.e.
(a) Absolute and
Salmond gives one more element of rights in the form of title. He says that a right has got also a title. The title may be in the form of the owner or co-owner or mortgager or leaser or buyer etc.
ILLUSTRATION: If, ‘A’ buys a piece of land from ’B’. A is the subject or owner of the right so required. The person bound by the co-relative duty is persons in general because a right of this kind avails against the world at large.
The right consists of non-interference with the purchaser’s exclusive use of the land.
KINDS OF RIGHTS:-
The following are the kinds of rights:-
1. Primary right and secondary right:
The primary right is an independent right while secondary right means dependent right. They are also called as principal right and helping right or remedial right.
‘A’ has the right of reputation which is his primary and independent right. If any person defames A then A has the right of damages against the defamer. This right of damages is called a secondary right or remedial right.
2. Positive and Negative Right:-
A positive right is linked with the negative and negative right is linked with duty. Positive right permits to do an act while negative right prohibits doing an act.
‘ A ‘ has the right to reputation. This is his positive right and any person should not defame him. The defaming of his reputation called negative right.
3. Right Rem and Personam:-
Right in Rem means right against the whole world while right in personam means right against a definite person.
ILLUSTRATION: ‘A’ has not to be harmed by any person. This is right in rem. On the other hand, ‘A’ has entered into a contract with ‘B’ and ‘B’ has broken +ve contract. ‘ A “ can enforce this right against ‘B’. This is known as right in personam.
1. Legal and equitable right (Natural Justice):-
The division of rights has its origin in England. A legal right is recognized by Law. While the equitable right has been recognized by natural justice. In England there were two types of courts:
(i) Legal courts
(ii) Chancery courts
Chancery Courts recognized the conquerable rights on the basis of justice, equity, and good conscience.
4. Vested & Contingents Right:-
These rights are of permanent nature that depend upon the happening of an uncertain event. Thus contingents right become full right only when such uncertain events happen according to the condition.
5. Proprietary and Personal Right:-
Proprietary rights that are concerned with property. A person possessing any property has the proprietary right over it, and personal right means the right related to a person or a body. Every person has a status. He should not be injured or defamed. If any person injures or defames another person then the wrongdoer infringes the personal right of a person.
6. Perfect or Imperfect Right:-
These rights which are enforceable by law are perfect and which law does not enforceable are imperfect rights.
7. Right of Re-propria and Right in re-aliena:-
Right in re-propria means the right in one’s own thing whereas right in re-aliena means the right in the things of others.