Legal rights and duties: elements, kinds and Hohfeld's analysis

1. Definitions

• Salmond: a right is an interest recognised and protected by a rule of right. It is any interest respect for which is a duty, and the disregard of which is a wrong.
• Holland: a capacity residing in one man of controlling, with the assent and assistance of the State, the actions of others.
• Ihering: a legally protected interest.
• Austin: a party has a right when another or others are bound or obliged by law to do or forbear towards or in regard to him.
• Gray: the power which a man has to make a person or persons do or refrain from doing a certain act, so far as the power arises from society imposing a legal duty upon the person or persons.

Salmond distinguishes moral or natural rights, recognised by the rule of natural justice, from legal rights, recognised and protected by the rule of law.

2. Salmond’s five elements

• The person of inherence: the owner of the right, the subject. There can be no right without an owner, though he may be uncertain or unborn.
• The person of incidence: the person bound by the correlative duty.
• The content: the act or omission which the person bound must do or abstain from.
• The object: the thing over which the right is exercised (land, goods, a reputation).
• The title: the facts by which the right has come to its owner (purchase, gift, inheritance, contract).

Illustration. A buys land from B. A is the person of inherence; all other persons are persons of incidence; the content is that they must not trespass; the object is the land; the title is the purchase.

3. Rights and duties as correlatives

A duty is an act which one ought to do, an act the opposite of which would be a wrong. Salmond says that every right has a correlative duty and every duty a correlative right: there can be no right without a duty. Austin disagreed: he spoke of absolute duties with no corresponding right, such as duties owed to the sovereign, duties to the public at large, and duties towards animals. Salmond answers that in these cases the right is held by the State or the public.

4. Kinds of legal rights

• Perfect and imperfect. A perfect right is enforceable in court as well as recognised; an imperfect right is recognised but not enforceable. A time-barred debt is the standard example: section 3 of the Limitation Act, 1963 bars the remedy, but the debt still exists, a security for it can be enforced, and a written promise to pay it is a valid contract under section 25(3) of the Indian Contract Act, 1872. The Directive Principles (Article 37) are sometimes given as an analogy.
• Positive and negative. A positive right has a correlative duty to do something (the right of a creditor to be paid); a negative right a duty to refrain (the right not to be defamed).
• Real and personal (in rem and in personam). A right in rem is available against the world at large (ownership of land); a right in personam against a definite person (a right under a contract). Rights in rem are usually negative; rights in personam usually positive.
• Proprietary and personal. Proprietary rights belong to a person’s estate and have economic value (ownership, debts). Personal rights concern his status and wellbeing (life, liberty, reputation).
• Inheritable and uninheritable. Most proprietary rights pass on death; personal rights, and some proprietary rights such as a life interest, die with the owner.
• Rights in re propria and in re aliena. A right over one’s own thing (ownership) and an encumbrance over another’s thing (easement, lease, mortgage).
• Principal and accessory. An accessory right is appurtenant to a principal one: a right of way attached to a house, a security attached to a debt.
• Primary and sanctioning. A primary right exists independently of any wrong; a sanctioning right arises from its violation (the right to damages).
• Public and private. Public rights belong to the State or the public (right of way on a highway); private rights to individuals.
• Vested and contingent. A vested right is complete now; a contingent right depends on an uncertain event.
• Legal and equitable. In English law, rights recognised by the common law courts and by the Court of Chancery. Indian law does not keep this division formally, but the beneficiary under a trust has an interest which is, in substance, an equitable right.
• Municipal and international, and fundamental and ordinary. Fundamental rights in Part III are enforceable against the State under Article 32.

5. Kinds of duties

Duties are positive or negative, primary or sanctioning, absolute or relative (Austin), and moral or legal, in parallel with the kinds of rights.

6. Right in its wider sense: Hohfeld

Wesley Newcomb Hohfeld (Fundamental Legal Conceptions, 1913, 1917) showed that the word “right” is used for four different legal relations, each with its own correlative and opposite. Salmond’s “rights in the wider sense” are the same four.

• Right (claim): correlative duty; opposite no-right. A right that another shall do or not do something. A has a right that B shall not enter his land; B has a duty not to.
• Privilege (liberty): correlative no-right; opposite duty. Freedom from a duty: A is at liberty to enter his own land, and B has no right that he shall not.
• Power: correlative liability; opposite disability. The ability to change legal relations: an owner has the power to sell or to make a will; others are liable to have their relations altered.
• Immunity: correlative disability; opposite liability. Freedom from another’s power: a fundamental right gives an immunity against legislation, and the legislature is under a disability.

Hohfeld’s point is that rights in the strict sense are claims, always matched by duties, and that much confusion in judgments comes from treating liberties, powers and immunities as if they were claims. The analysis is criticised as too formal and as limited to relations between two persons, but it is the standard tool for breaking down a complex legal position.

How this is examined

As an essay: “Define legal right. Explain the various kinds of legal rights” (January 2026, Q.6; June 2025, Q.4(a)). As a short note: “Hohfeld’s analysis of right” (June 2025, Q.4(b)) or “Kinds of legal rights” (February 2025, Q.4(b)). Give two or three definitions, the five elements with an illustration, the correlation of rights and duties, and the kinds in pairs with an example of each. A paragraph on Hohfeld lifts the essay above the average answer.