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Published : January 26, 2011 | Author : laksheyender@gmail.com
Category : Law - lawyers & legal Profession | Total Views : 12256 | Rating :

Laksheyender Kumar. I am pursuing B.A.,LL.B.(H) 5th year from Jamia Millia Islamia. I want to share some my research work with intrested peoples.

Legal Rights

The term ‘right’ has been used in different ways. In its strict sense it has been used as correlative of legal duties. In legal terms a right is an interest recognised and protected by the State and enforceable through the court of law. A right is enforceable only to the extent it is protected by the state. Legal rights, in a wider sense of the term, do not necessarily correspond with duties. In this generic sense a legal right may be defined as any advantage or benefit conferred upon a person by a rule of law. Of rights in this sense there are four distinct kinds. These are: (1) Rights (in the strict sense), (2) Liberties, (3) Powers, and (4) Immunities. Since the rights cannot exist in vaccum, each of these has its correlative, namely – (1) Duties, (2) No rights, (3) Liabilities, and (4) Disabilities. The concept of right envisages the presence of two parties: one, who has the right and the accompanying capacity to get it enforced, and the other against whom the right has been conferred and can be enforced.

Each of these kinds of rights has its correlative, namely, (1) duties, (2) no right, (3) liabilities, and (4) disabilities.

These relationships are designated as ‘Jural’ relations.
1.) Y’s duty with regard to ‘X’ would be expressed by ‘X’ as ‘you must’ (X has a right in strict sense or claim).
2.) X’s freedom to do something in relation to ‘Y’ would be expressed by ‘X’ as ‘I may’ (X has a liberty or privilege).
3.) X’s ability to alter Y’s legal position would be expressed by X as ‘I can’ (X has a power).

Y’s inability to alter X’s legal position would be expressed by X as ‘You cannot’ (X has an immunity).

Hohfeld’s concept of Jural relation
Hohfeld set forth the eight fundamental conceptions in terms of which he believed all legal problems could be stated. He gave two relations Jural Correlatives and Jural Opposites. Later Prof. G.L. Williams added one more relation i.e. jural contradictories.

Prof. G.L. William’s table of jural relations
An important point is that a jural relation between two parties should be considered only between them, even though the conduct of one may create another jural relation between him and someone else.

A. Jural Correlatives (vertical arrows and read both ways):… in one person, X, implies the presence of its correlative …, in another person, Y’. Thus, right in X implies the presence of duty in Y (but in so far as duties may exist without correlative rights, the converse proposition is not always true). Again, liberty in X implies the presence of no-right in Y, and vice versa.

B. Jural Opposites including what one might here call jural negations (diagonal arrows and read both ways): … in one person, X, implies the absence of its opposite, …, in himself’. Thus, right in X implies the absence of no-right in him, and vice versa.

C. Jural Contradictories (horizontal arrows and read both ways): … in one person, X, implies the absence of its contradictory,…, in another person, Y’. Thus, right in X implies the absence of liberty in Y, and vice versa.

Right-Duty Relation (‘You Ought’)
Generally it is said that rights and duties are correlative. Every right has a corresponding obligation or duty. Without rights there can be no duties or vice versa. If ‘X’ has a right everyone else has the duty to respect X’s right. If ‘X’ has a duty someone else has right to the thing ‘X’ must do or omit. Thus according to conventional jurists rights and duties are correlative, co-existent, reciprocal and interdependent.

The correlation of right and duty is not perfect. On the one hand, there can be no right without a corresponding duty or duty without a corresponding right. Thus, Salmond said that there can be no right without a corresponding duty or duty without a corresponding right, as there can be no husband without a wife or a father without a child. According to his view, every duty must be a duty towards some person or persons in whom therefore a correlative right is vested. And conversely every right must be a right against some person or persons upon whom therefore a correlative duty is imposed. Every right or duty involves a vinculum juris or bond of legal obligation, by which two or more persons are bound together. On the other hand, Austin distinguishes between relative and absolute duties, the former being those which have rights corresponding to them and the latter being those which have none. Austin conceives it to be the essence of a right that it should be vested in some determinate person and be enforceable by some form of legal process instituted by him. Austin thus starts from the assumption that a right cannot vest in an indeterminate, or a vague entity like the society or the people. The second assumption with which Austin starts is that sovereign creates right and imposes and can change these as its will –consequently the sovereign cannot be the holder of the right.

Duties in the strict sense have corresponding rights, and duties in the wider sense do not. Non-correlative duties do not fit into the Hohfeldian scheme. Article 51-A of Indian Constitution deals with ‘Fundamental Duties’, which are absolute duties i.e. duties not accompanied by rights. Although it is a duty of every citizen to respect national flag, protect culture and environment, etc., yet the State cannot have any right in respect of such duties.

Privilege-No-right Relation (‘I May’)
According to the Hohfeld, privilege means the freedom which a person has i.e. to do or not to do something. In other words it means what one can do for himself without being prevented by the law or one is free of the possibility of legal interference by others e.g., a person of a certain age would be entitled to vote–this confers not right but in fact privilege because one may entertain this right or not–it is the choice of the individual concerned–the state cannot compel him for the same. Hence privilege has no corresponding duty. The jural opposition between duty and privilege does not mean simply that the one cancels out the other, but that they will only have that effect when the content of one is irreconcilable with the content of the other. For example, ‘X’ normally has the privilege of wearing his hat. If he puts himself under a duty to wear it, his privilege and duty of wearing the hat are harmonious and co-exist. It is only when he puts himself under a duty not to wear it that his privilege to wear it and his duty conflict and are jurally opposite. Privilege is that sphere of a person’s activity within which the law leaves him alone.

The relationship between privilege and right can be explained in the following way–
(1) If ‘Y’ has a right, there must be duty on ‘X’. A duty in ‘X’ implies the absence of privilege in ‘X’. Therefore, a right in ‘Y’ implies the absence of privilege in ‘X’, i.e., right and privilege as ‘Jural contradictions’.

Conversely, the presence of a privilege in ‘X’ implies the absence of a right in ‘Y’. Hohfeld calls the condition ‘no-right’ therefore a privilege in ‘X’ implies the presence of a ‘no-right’ in ‘Y’, i.e., privilege and no-right are ‘jural correlatives’.

Distinction between Right and Privilege
A right implies a correlative duty but a privilege does not. A’s privilege to vote is not correlative to a duty in anyone. There is indeed a duty in others not to interfere and others duty not to interfere is correlative to A’s right against others and they shall not interfere. Therein lies the distinction. A’s privilege to vote and his right not to be prevented from so doing are two different ideas. Thus, ‘X’ may enter into a valid contract with ‘Y’ whereby ‘X’ gives ‘Y’ permission to prevent him from wearing the hat but ‘X’ says he will nevertheless try to wear it. If ‘X’ succeeds in evading ‘Y’ and leaves the scene wearing the hat, he has exercised his privilege to wear it and ‘Y’ has no cause for complaint. If, on the other hand, ‘Y’ prevents him from wearing the hat, he cannot complain, for he has by contract extinguished his right against ‘Y’ that ‘Y’ shall not interfere. This shows that the privilege and the right are separate and separable, the right can be extinguished without affecting the privilege.

Bradford Corporation v. Pickles, (1895) AC 587, shows that a land-owner has the privilege of abstracting subterranean water, but no right against anyone else, who by abstracting the water before it reaches the land-owner, prevents him from exercising his privilege.

Power-Liability Relation (‘I can’)
Salmond defines a power as the ability conferred upon a person by the law to alter, by his own will, directed to that end, the rights, duties or other legal relations, either of himself or of other persons. That is to say that power denotes the ability in a person to alter the existing legal condition, whether of oneself or of another, for better or for worse. One can make a will of his property or can alienate his property; one can rescind a contract for fraud; one can marry one’s deceased wife’s sister–all these are often termed as rights but close legal analysis implies that they are not rights but powers. Power is of two kinds: public or private. Public power is that which is vested in a person as an agent of the state, as the judicial or executive power of the officers. Private power is that power which is vested in a person as citizen for his own interest. A power may enable one to determine the legal relations of others. This kind of power is called ‘authority’. The power to determine one’s own legal relations is called ‘capacity’. All these have no corresponding duties–hence they are not rights in strict sense but termed as powers.

The correlative of a power is a liability. This connotes the presence of power vested in someone else as against the power with the liability. Salmond used the term ‘subjection’ for it for the purpose of avoiding confusion, because in law the term ‘liability’ has two meanings also. ‘Liability’ gives the sense of being affected by an act of a person who has ‘power’ to do it. It is the position of one whose legal rights may be altered by the exercise of a power. Liability denotes the position of a person whose legal condition can be so altered. ‘X’ has power to make a gift to ‘Y’, and correlatively ‘Y’ has a liability to have his legal position improved in this way. A person’s legal condition may be changed by events not under anyone’s control. Liability suggests something disadvantageous on the part of the person. Hohfeld does not confine the term ‘liability’ only to loss or disadvantages. He says that it includes a chance of being benefited also. For example, if a person has a ‘power’ to make a will, his children may be benefited (if he makes a will in their favour).

Distinction between Right and Power
A right is always a sign that some other person is required to conform to a pattern of conduct, a power is the ability to produce a certain result. The right for example to make a will can be dissected into a privilege to make a will (there is another privilege not to make one), rights against other people not to be prevented from making one powers in the sense of the ability to alter the legal condition of persons specified in the will. The power itself has no duty correlative to it. It would be incorrect to describe this as a right in the testator correlative to the duty in the executor to carry out the testamentary dispositions, for the will would take effect as from the death of the testator and the executor’s duty only arises from that moment. When the testator dies his rights cease and the duty cannot correlate to any right in him.

Immunity-Disability Relation (‘You Cannot’)
Immunity denotes freedom from the power of another, while disability denotes the absence of power. Immunity is opposite of liability. Disability is the opposite of power.

The relationship between power, liability, immunity and disability may be explained as follows:

(1) If X has a power, Y has a liability. They are, therefore ‘jural correlatives’. A liability in Y means the absence of immunity in him. Therefore, immunity and liability are jural opposites.

(2) Conversely, the presence of immunity in Y implies the absence of a liability in him. The absence of a liability in Y implies the absence of a power in X. Therefore, immunity in Y implies the absence of a power in X, i.e. power and immunity are jural contradictories.

The absence of power could have been styled as ‘no-power’ in the same way as no-right, but Hohfeld preferred to give it the term ‘disability’. Power and disability thus become jural opposites. It follows from this that immunity in Y implies the presence of a disability in X, i.e., they are ‘jural correlatives’.

Distinction between Privilege and Immunity
An ambassador or a diplomatic envoy’s position illustrates this. Such a person is treated as being capable of committing a breach of duty and is under a duty to pay damages, although immune from the power of action or other legal process to compel him to do so. In other words, he has no liberty to do the act, nor a privilege from having to pay damages for it, but he has the immunity from process all the same. It was held in Dickinson v. Del Solar [(1930) I KB 376] that the fact that an envoy was thus under a sanction duty to pay damages was sufficient to involve his insurance company in responsibility. If, on the other hand, an envoy voluntarily pays the damages, he cannot recover them since there is the duty to pay.

Hohfeld’s scheme is however not free from criticism. The main objection raised against the scheme is that some of Hohfeld’s conceptions are without judicial significance for instance ‘liability’ and ‘disability’. Hohfeld’s editor has however, given an answer and said that power, liability, immunity and disability are necessarily interrelated. Once the concept of power is admitted, the others follow. A power in X to alter the legal conditions of Y implies that Y is liable to have his condition altered, if X has no power (disability) then Y is immune.

Hohfeld’s scheme, in fact, has the clarity in thought though there is no practical utility. No legal system has adopted it. These terms are generally not used in common parlance as e.g., we always say right to vote not power of voting.

Authors contact info - articles The  author can be reached at: laksheyender@legalserviceindia.com

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Article Comments

Posted by prakash on September 30, 2011
Courts must ruthlessly adopt scientific options available to expedite resolving cases. For example in any case regarding paternity or blood kinship disputed case an immediate DNA should be ordered. A case of thid nature would be sorted out in aeek,s time and woulf eliminate coercion harrasment and even extortion by the guilty party. Punishment and fines should be of deterrent variety even in civil cases.

Quite a good percentage of the 3 crore cases are frivilous filed just for harrasment and screwing out some money by agreeing to settle out of Courts. Our black coats have a vested interest in multiplying the cases and in prolonging the cases. At least during recording of evidence at the Hogh Court level all delay should be eliminated. Number of Joint Registrars can be increased , retired persons could be re-eployed and a work output quota stipulated.


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