Legal Right & Essentials of A Legal Right

Legal Right & Essentials of A Legal Right

1. Introduction:

Right generally means an interest or facility or a privilege or immunity or a 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 term of legal right.  Legal right is recognized by law. It is different from moral right.  Moral right if violated is called moral wrong. The violation of natural right is called natural wrong.  But these wrongs are not remedial under law while if a legal right is violated then it will be legal wrong which is remedial under law. There can be no duty without a right. According to Salmond, Right is an interest recognized and protected by the rule of right

2. Definition Of  Legal Right:  

          The term legal has been used in two senses:

(a)Restricted Or Popular Senses:

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 from society imposing a legal duty upon a person or persons.

 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.”

(b)Wider Sense:

In a wider sense, legal right includes any legally recognized interest, whether it corresponds to legal duty or not. It is a addition on benefit conferred upon a person by a rule of law.

3. Theories of Right: -

            There are two theories of right :

(i)     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 recognised 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.

(ii)    Interest Theory:- This theory says that interest is the base of the right. It is only interest which is recognized by law. This theory reflects the external nature of the human beings. Supporter of this theory say that there are many interests in the world.  These interest which are protected and recognized by law are called right.

4. Essential Characteristics of Legal Right:

According to Salmond, there are five characteristics or essential elements of legal right, 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.

(i)     Vested  in person:

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.

(ii)   Available against person:

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.

(iii) 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 favor of the person entitled to the right.

(iv)  Object of the right:

The act or forbearance relates to something which is designated the object or subject matter of the right.

(v)   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.

Illustration:A man buys a house form another. The buyer will be the person of inherence i.e., the owner of right and the seller and the other person generally the persons of incidence i.e., persons who are under a corresponding duty. The object of the right will be the house. The contents of the right are forbearance, non-interference with the exclusive use of the house. The title to the right is the fact of the sale the of the house.

5.  Objects of the Right:

A right being a legally protected interest, the object of the right is the thing in which has his interest which he desires to take or obtain by means of the duty which the law imposes on other person. There is no unanimity of opinion as to whether every right must have an object or not. According to one view there are some writers who are of the view that there are some rights without objects. According to her the object of a right means some material thing to which it relates. In this sense, an object is not an essential element in the conception of right, and that rights can exist without an object e.g., a right to reputation.

6. Classification Of Rights According To Their Objects:

Slalomed refers to seven kinds of rights by reference to their objects.

(i)     Rights over material things.

These are the most important legal rights in respect of their number and variety. Examples are one’s right to own his car, house etc.

(ii)   Right in respect of one, s own person:

A right to life, health, personal liberty and reputation fall within this class. Here the object is something immaterial.

(iii) Right of reputation:

There is also the right of reputation. By reputation we mean the good opinion that other person have about a person. A person has right not to be libeled. Such a right has obtained legal recognition and protection.

(iv)  Right in respect of domestic relation:

There are rights in respect of domestic relation. Every person has an interest and in the society, affections and security of his wife and children. Here the object of the right is the affection and society of the other or by stretching the argument, the object can be the person to whose affection the owner of a right has a right to.

(v)   Right in respect of other rights:

A right may have another right as its subject-matter. A Jus ad rem. There are writers like Gray who distinguish between rights to rights which can be specifically enforced and rights or rights the violation of which gives rise only to some lesser remedy. Example:

By a promise of marriage, a woman acquires a right to be married. She acquires the right of a wife on being actually married.

(vi)   Rights over immaterial property:

There are rights over immaterial property and examples of such right are the patent rights, copy-rights, trade marks etc. the object of patent rights it an invention and the copy-right is the form of expression used by the another etc.

      (vii)Right to Services:

There are right to services. There rights are created by the contract between two person. Such as master and servant, physician and patient, advocate and client etc. here the object of the right is the skill-knowledge, strength, time etc. Example: If a physician is hired, the hirer gets a right to the use and benefit of his skill and knowledge.

7. Legal and Equitable Right (Natural Justice):-

            The division of right has its origin in England. Legal right is recognized by Law. While 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.

Vested & Contingents Right:-  These rights is of permanent nature that depends upon the happening of an uncertain event. Thus contingents right becomes full right only when such uncertain events happen according to the condition.

Proprietary and Personal Right:-  Proprietary rights which are concerned with property. A person possessing any property has the proprietary right over it, and personal right means the right related with 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 wrong doer infringes the personal right of a person.

Perfect or Imperfect Right:- These rights which are enforceable by law are perfect and which law does not enforceable are imperfect rights.

Right of Re-propia and Right in re-alena:- Right in re-propia means the right in one’s own thing whereas right in re-aliena means the right in the things of others

8. Conclusion:

       To conclude, It can be said, 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.