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ACKNOWLEDGEMENT
The present project on the topic “Rights & Duties : A Critical Legal analysis has been able to gets its final shape with the support and help of the people from various quarters. My Sincere thanks go to all the members without whom the study could not have been made and would not have come to being presented.
First and foremost I would like to extend my sincere regards and thanks to Dr. Manoranjan Kumar for the help, support and guidance he has provided me during the course of making the project. Without his kind supervision and directions this project would never have seen the light of the day.
Next, I would like to thank the library staff for being extremely supportive during the entire endeavor and helping me direct to the books which have been referred to during the making of the project. In the same context I would also thank the CNLU authorities for providing us with such an informative library.
I would also like to mention my friends and classmates who helped me whenever I needed their support. Among them I would like to specially mention My Friends who have been for me throughout.
Last but not the least; I would pay my regards to my parents and family who have been the guiding factor for me all my life. It is them who have me made me what I am today and during the making of this project have provided me with all the help they could, monetary and otherwise.
In all this, not to forget the Lord Almighty without whose guidance none of this would have been possible.
Rajeev Ranjan Roll no.- 5 th^ semester(3rd^ Year)
Contents Page NO
ACKNOWLEDGEMENT
The present project on the topic “RIGHTS & DUTIES : A Critical Legal analysis has been able to gets its final shape with the support and help of the people from various quarters. My Sincere thanks go to all the members without whom the study could not have been made and would not have come to being presented.
First and foremost I would like to extend my sincere regards and thanks to Dr. Manoranjan Kumar for the help, support and guidance he has provided me during the course of making the project. Without his kind supervision and directions this project would never have seen the light of the day.
Next, I would like to thank the library staff for being extremely supportive during the entire endeavor and helping me direct to the books which have been referred to during the making of the project. In the same context I would also thank the CNLU authorities for providing us with such an informative library.
I would also like to mention my friends and classmates who helped me whenever I needed their support. Among them I would like to specially mention to My Friends who have been for me throughout.
Last but not the least; I would pay my regards to my parents and family who have been the guiding factor for me all my life. It is them who have me made me what I am today and during the making of this project have provided me with all the help they could, monetary and otherwise.
.
“I EXPRESS MY GRATITUDE TO THE FACULTY,
„JURISPRUDENCE‟ FOR THE CONCEPTS GIVEN BY HIM IN THE
SUBJECT WHICH HAS BEEN THE BASE FOR THIS SMALL PIECE
OF WORK.”
YOURS SINCERELY RAJEEV RANJAN ROLL NO. 781
RESEARCH METHODOLOGY
The project work on ‘RIGHTS & DUTIES’ is based on doctrinal method of research. I have considered various articles and write ups. Secondary sources have been used i.e. books, articles, commentaries and internet.
The writing style is both descriptive and analytical. The project is a result of extensive research work.
Aims and Objectives:
„ RIGHTS & DUTIES’ The aim of the project is to present a detailed study of the Legal Rights , Duties & Justice. and also its present and past status in our country.
Scope and Limitations:
The five point on which special emphasis has been given in this research are:
Sources of Data:
The following secondary sources of data have been used in the project- 1.Articles
2.Books
3.Websites
CONCEPT OF RIGHTS
INTRODUCTION
Law is a set of rules to regulate human conduct. Human conduct is regulated by conferring rights and imposing duties. This regulation takes place by enforcing legal machinery. As far as concept of rights is concerned, it evolved in classical era. Ancient Indian society was duty based society. Duty based towards God, duty towards parents.
But, today concept of right has become quite important. According to common men, rights mean anything which is permitted. In ordinary parlance, right is standard of permitted behavior in a certain sphere and anything against that would be wrong. Example: Moral rights, rights according to religion. As far as legal rights are concerned it is the standard of permitted behavior according to law. The term „wrong and „duty‟ are closely connected to rights; so it is important to discuss them before discussing legal rights.
WRONG
According to Pollock, “Wrong is in morals the contrary of rights”.
According to Salmond: „ A wrong is simply a wrong act an act contrary to the rules of right and justice.
Wrongs is of two types-
(a.) Moral wrong
(b.) Legal wrong.
Moral Wrong:- Right action is that which moral rules prescribe or commend, wrong action is that which they forbid. Any act which is contrary to morality or natural justice is moral wrong. Legal wrong:- Any act which is contrary to law is the legal wrong. There is a legal wrong done whenever a legal duty is broken. Sphere of legal wrong changes with change in time. Legal wrong which is a moral wrong also: There are many legal wrongs which are morally also wrong. For example: Food adulteration act, prevention of corruption act, foreign exchange act, prevention of atrocities against Schedule caste and schedule tribes. It is true adulteration of food is a statutory. Legal wrongs which is not a moral wrong
There are many legal wrongs which are legally wrong but not morally. In case of strict liability, Master has adulterated the goods and servant is asked to sell it. Servant is not aware about this adulteration. He is convicted and punished. It is
(I) Legal Duty:- It is an act recognized as a duty by law and treated as such for the administration of justice. A legal duty is an act and the opposite of which is a legal wrong. (II) Moral Duty:- An act which ought to be done according to the dictates of morality. It can also be defined as an act the opposite of which is a moral or natural wrong. Example:- If a person is in problem at the time of swimming then the person stands nearby, has a moral duty to rescue him if he knows swimming. (III) Positive Duty:- When the law obliges us to do an act, the duty is called positive duty. (IV) Negative duty:- When the law obliges us to forbear from doing an act, the duty is negative.
LEGAL RIGHTS
Legal rights are those rights which are recognized and protected by law.
Rights are concerned with interest. Interests are something to the advantage of a person. Interest has been defined as interests protected by rules of rules of right, which is by moral and legal rule. Yet rights and interest are not identical.
For Example:- A man has an interest in his freedom or his reputation. His rights to these, if he has such rights, protect the interest, which accordingly form the subject of his rights but are different from them. To say he has an interest in his
(^2) reputation means that it is to his advantage to enjoy a good name, to say he has a
right to this imply that others ought to take from him^3.
RIGHT :- One cannot impose his right without the assent of the state.
MIGHT:- One can impose his/her right without the assent of the state.
Every right has two elements i.e.
(i) the „material element‟ of interest like reputation, property, money, etc. and
(ii) the „formal elements‟ like capacity, power to realize the interest, etc. The definitions of right given by different jurists are mostly based on either one or the other elements of right.
Definitions of Right Basing on Formal Elements (Will Theory):
Austin: According to Austin, right is “faculty which resides in a determinate party or parties by virtue of a given law and which avails against a party or parties (or answer to a duty lying on party or parties) other than the party or parties in whom it resides.” According to him, a person can be said to have a right only when another or others are bound or obliged by law to do something or forbear in regard to him. It means that a right has always a corresponding duty. This definition is not quite satisfactory as every right implies a corresponding duty, but every duty does not imply a corresponding right.
Holland: Holland defines legal right as the “capacity residing in one man of controlling, with the assent and assistance of the state the action of others.” He
(^23) (1954) 70 L.Q.R. 37
Reconciliation between the will and Interest theory :
Allen tries to bring about such reconciliation. According to him, the essence of a legal right seems to be legally guaranteed power by itself nor legally protected interest by itself, but the legally guaranteed power to realize an interest. Thus, we can conclude, right is the exercise of will power directed towards the enforcement of interest or protection and recognition of interest.
CHARACTERISTICS (OR ELEMENTS OR INGREDIENTS)
OF LEGAL RIGHTS
According to John Salmond, Legal rights involve five essential elements:- (1) Subject: Right is vested in a person who may be the owner of the right, the subject of it, the person entitled, or the person of inheritance. (2) Object: A legal right operates against some person who is under a duty or obligation to obey or respect that right. He may be distinguished as the person bound, or as the subject of the duty, or as the person of incidence. (3) Content: There is some content or substance of a legal right i.e. the act or forbearance by which the person in obligation is bound. (4) Acts: There is the act or omission relates to something, which may be termed as the object or subject matter of the right. (5) Title: Every legal right has a title, that is to say, certain facts or events by reason of which the right has become vested in its owner.
(^4) John Rawls, A theory of Justice (Cambridge, Mass. 1971) p 60.
Illustration:-
If „X‟ sells a piece of land to Y by sale deed than Y becomes the owner of the property. Y has all the rights over that property. Y is the person of inheritance. Thus, Y is the subject of the right. Now, X and all other persons have a duty not to interfere with the possession or ownership or any other rights of „Y‟. Thus, the object of right or subject of duty is in rem. „X‟ is obliged to give possession and ownership of the property to „Y‟ after the sale and „X‟ is obliged not to interfere with Y‟s possession. Thus, possession, ownership, non-interference are the contents of the right. Piece of land is the subject-matter of the rights. Every right is created by certain acts or omission. In this case, it is done by deed of conveyance, so, it is the title of the right.
Hohfeldian Analysis of Legal Rights
Historical Background: The concept of legal right has undergone change in last century. Thomas Hobbes discussed two terms right in strict sense and liberty. After several jurist, Bentham, Austin and Salmond further explained various terms for the word „right‟ i.e. right in strict sense, liberty and power. In 1913, Professor Hohfeld, an American jurist, rearranged and completed Salmond‟s scheme by adding a fourth term immunity and worked out a table of jural relations. According to modern jurist, term right is like a homo name which includes within its sweep.^5
(^55) H.L.A. Hart, The concept of Law, (Oxford, 1961) pp 153- 155 5 Supra 12.Alf Ross, On law and justice, (Berkely, 1959),p 280
Duties may be Positive or Negative. When the law obliges us to do an act, the duty is called Positive. When the law obliges us to forbear from doing an act, the duty is negative. If R has a right to a land, there is a corresponding duty on a person generally not to interfere with exclusive use of the land. Such a duty is a negative duty. It is extinguished only if the right itself is extinguished. If S owes a sum of money to Y, the latter is under a duty to pay the amount to due. This is a positive duty. In the case of Positive duties, the performance of the duty extinguishes both duty & right but a negative duty can never be extinguished by fulfillment.
Duties can also be primary & secondary. Primary duties are those which exits per se and independently of any other duty. An example of a Primary duty is to forbear from causing Personal Injury to another. A Secondary duty is that which has no independent existence but exists only for the enforcement of other duties. An example of a secondary duty is the duty to pay a man damages for the injury already done to his person. It is also called a remedial, restitutory or sanctioning duty.
According to Salmond, If a law recognizes an act as a duty, It generally enforces its performance and punishes these who disregard the same.
According to keeton, a duty is an act or forbearance compelled by the state in respect of a right vested in another and the breach of which is wrong.
According to Hibbert, Duties are imposed on persons and require acts and forbearances which are their object. Hibbert refers to absolute and relative duties. Absolute duties are owed only to the state. The breach of an absolute duty is generally a crime and remedy is the punishment of the offender and not the payment of any compensation to the injured party. Relative duties are owed to a
person other than the one imposing them. The breach of a relative duty is called a civil injury and its remedy is compensation or restitution to the injured party.
According to Austin, some duties are absolute. Those duties do not have a corresponding right. Examples of absolute duties are self-regarding duties such as a duty not to commit suicide or become intoxicated, a duty to intermediate persons or the Public such as a duty not to commit a nuisance, a duty to one not a human being such as a duty towards God or animals and a duty to sovereign or state.
If we examine these four classes of duties critically, they are reduced to one category and that is the duties to the state. A duty not to commit suicide or nuisance is enforced by the state and can be included in the categories of duties to the state. The result is that the corresponding right vests in the state. However the view of Austin is that „‟A sovereign government in its collegiate or sovereign capacity has no legal rights against its own subjects “and there for the duties towards the state are absolute duties.
The views of Austin is criticized by Gray,Pollock & Salmond. According to salmond :there can be no duty without a right any more than there can be a husband without a wife or parent without a child.” The result is that rights and duties are always correlated and there is absolutely no scope for absolute duties. The views of Pollack is that „‟ there seems to be no valid reason against ascribing rights to the state in all cases where its officers are enjoined or authorized to take steps for causing the law to be observd and breakers of the law to be punished”.^7
(^7) Hohfeld‟s scheme of jural relations
In Minerva Mills Ltd. V. Union of India , the Supreme Court observed: There may be a rule which imposes an obligation on an individual or authority, and yet it may not be enforceable in a court of law, and therefore not give rise to a corresponding enforceable right in another person. But, it would still be a legal rule because it prescribes a norm of conduct to be followed by such individual or such authority. The law may provide a mechanism for enforcement of this obligation, but the existence of obligation does not depend upon the creation of such mechanism. The obligation exists prior to and independent of, the mechanism of enforcement. A rule imposing an obligation would not there for cease to be a rule of law because there is no regular Judicial or Quasi-Judicial machinery to enforce its command. Such a rule would exist despite any problem relating to its enforcement.” The other school is represented by Austin. According to him, Duties are of two kinds :- (1) Absolute Duties & Relative duties. Relative duty corresponds to a right. It is a duty to be fulfilled towards a determinate superior. All absolute duties are enforced criminally. They don‟t correspond with rights in the sovereign. There is an absolute duty in certain cases. Those are duties not regarding persons e.g. Those owed to god and lower animals, duties owed to persons indefinitely e.g. towards the community, self-regarding duties and duties owed to the sovereign. In case of an absolute duty, it is commanded that an act shall be done or forbidden towards or in respect of the party to whom the command is directed. Duties towards the public at large or towards intermediate portions of the public have no co-relative rights. The duty to refrain from committing a public nuisance has no co-relative rights. Where trustees held property on trust for religious purposes, even though there is no ascertained beneficiary, the trustees are under a
duty not to use the property for a purpose pother then religious purpose. The question is to whom the duty is due.
JURAL RELATIONS
Legal right in a strict sense constitutes the correlatives of legal duties. From a wider sense the term legal rights include concept of (strict sense), liberty, power and immunity. Hohfeld arranged the four incidents in tables of „correlatives‟ and „opposites‟ to display the logical structure of his system. Further it was Professor G.L. Williams, who presented the four incidents in two tables with the help of which, another jurist were able to find out other relations- Jural Contradictions.
JURAL CORRELATIVES
Jural correlatives signify something which is mutual, complementary reciprocal or corresponding. Jural correlatives signify two things that occur together.
CLAIM LIBERTY POWER IMMUNITY
DUTY NO-CLAIM LIABLITY DISABILITY^9
The jural correlatives are showed by vertical arrows. There are types of rights and co relatives: (i) Claim and Duty. (ii) Liberty and No-claim.
(^99 9) Edgar Bodenheimer, Jurisprudence The Philosophy and Method of Law, 2004, pg. 196 9 Plato, The Republic, transl. A.D. Lindsay (Everman‟s Library ed., 1950).Aristotle, The politics, Transl. E. Baker (Oxford 1946)
