Rights: conception, definition, characteristics and kinds

1. The conception of a right

“Right” has a moral sense (what is just) and a legal sense (what the law protects). A legal right exists only where the legal order recognises it, though moral rights may be the reason for recognising it, as with human rights. Jurists have defined the legal right in two main ways.

• Holland: a right is one man’s capacity of influencing the acts of another by means not of his own strength but of the opinion or the force of society.
• 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 disregard of which is a wrong.
• Gray: a right is not the interest itself but the means by which the interest is protected, the power the State gives a person to make others act or forbear.
• Austin: a party has a right when another or others are bound or obliged by law to do or forbear towards him.

2. Will theory and interest theory

Ihering’s formulation (a right is a legally protected interest) is the origin of the interest theory; Hart’s “Bentham on Legal Rights” (1973) is the leading modern defence of the will theory. Kelsen treated a right as merely the reflex of another’s duty, or as the legal power to set the sanction in motion. Many writers now accept that both theories capture part of the truth, which Hohfeld’s analysis helps explain (next note).

3. Characteristics (Salmond’s five elements)

1. The person of inherence (subject or owner of the right). There can be no right without a holder, though he may be uncertain (an unborn child) or a juristic person.
2. The person of incidence (subject of the duty), against whom the right avails.
3. The content: the act or omission that the duty-bearer must do or forbear.
4. The object: the thing over which the right is exercised (land, a book, the reputation or body of the holder).
5. The title: the facts by which the right came to be vested in its owner (purchase, gift, inheritance, contract, birth).

Illustration. A buys land from B. A is the person of inherence; all others are persons of incidence; the content is non-interference; the object is the land; the title is the purchase. Critics (Paton, Dias) note that some rights have no material object (the right to reputation) and that the “object” and “content” overlap.

Other characteristics: a right is enforceable through a legal remedy (ubi jus ibi remedium); it is correlative to a duty (Austin and Salmond insist every right has a duty; Austin also recognised absolute duties without rights, such as duties to the State); and it may be lost by waiver, lapse of time or operation of law (see the note on temporal dimensions).

4. Kinds of rights

• Perfect and imperfect. Perfect rights are enforceable by action; imperfect rights are recognised but not enforceable, such as a time-barred debt (the right survives, the remedy is barred, except where limitation extinguishes the right itself, as section 27 of the Limitation Act, 1963 does for property), or claims against a foreign State.
• Positive and negative. A positive right requires the duty-bearer to act (to pay); a negative right requires forbearance (not to trespass).
• Real and personal (in rem and in personam). A right in rem avails against the world at large (ownership, reputation); a right in personam against a determinate person (a contract debt). Usually rights in rem are negative and rights in personam positive.
• Proprietary and personal. Proprietary rights form part of a person’s estate and have economic value (land, debts, patents); personal rights concern status and well-being (life, liberty, reputation).
• Rights in re propria and in re aliena. The second are encumbrances on another’s property: leases, servitudes (easements), securities (mortgage, pledge, lien) and trusts.
• Principal and accessory. An easement attached to land (dominant tenement); a security accessory to a debt.
• Primary and sanctioning (remedial). The primary right exists independently; the sanctioning right arises on its violation (right to damages, to an injunction).
• Legal and equitable (English law): rights recognised at common law and in the Court of Chancery; the beneficiary under a trust has equitable ownership.
• Vested and contingent. A vested right is complete; a contingent right depends on an uncertain event (Transfer of Property Act, 1882, sections 19 and 21).
• Public and private; municipal and international.

5. Rights in the wider sense

The syllabus uses the phrase “rights in the wider sense of the term”, taken from Salmond: in the strict sense a right is the correlative of a duty; in the wider sense it is any legally conferred benefit. Salmond lists four kinds, which match Hohfeld’s analysis:

1. Rights stricto sensu (claims), correlative to duties;
2. Liberties (privileges), correlative to no-rights: freedom from legal duty;
3. Powers, correlative to liabilities: ability to change legal relations;
4. Immunities, correlative to disabilities: freedom from another’s power.

6. Indian illustrations

• Fundamental rights mix all four kinds. Article 19(1)(a) is mainly a liberty plus an immunity against legislation; Article 21 a claim; Article 32 itself a right (a sanctioning right) to move the Supreme Court; Article 20(3) an immunity.
• K.S. Puttaswamy v. Union of India, 2017 INSC 801: privacy was held to be a fundamental right with several dimensions (bodily, informational, decisional), a cluster of claims, liberties and immunities rather than a single right.
• The interest theory explains rights of children and of persons lacking capacity, and the Court’s recognition of the dignity of animals in Animal Welfare Board of India v. A. Nagaraja, 2014 INSC 370 (see the note on legal personality).
• Comparative: the European Convention on Human Rights distinguishes absolute rights (Article 3, torture) from qualified rights (Articles 8–11) that may be limited when necessary in a democratic society, a structure similar to Article 19’s reasonable restrictions.

How this is examined

“What is right? Explain its characteristics” (August 2024): definitions (section 1), the two theories (section 2), Salmond’s elements with an illustration (section 3), and kinds (section 4) in that order, ending with rights in the wider sense and a pointer to Hohfeld. Short notes: rights in rem and in personam; perfect and imperfect rights; will and interest theories.