Rights and Duties under Jurisprudence

The concept of Rights and Duties form an important part of Legal Jurisprudence. The concept has been severally elaborated by various jurists and scholars. Rights are inevitable essentials for human existence. Human beings cannot sustain without basic human rights which are naturally embodied in them by being humans. Legal systems all around the world recognize the importance of Rights. All legally permitted actions are rights whereas duty refers to no wrong. Respect to the right of the holder of such rights is the duty and thus they are correlated. These legally permitted actions find a place in the general interests of the society and hence need legal protection. In contemporary society, a broader view has been adopted in the interpretation of rights and duties and they have been recognized to serve as the ultimate purpose of the law.


In common usage, Right means a moral or legal entitlement to have or to do something.[1]   It can also be defined as a just claim or title, whether legal, prescriptive, or moral or that which is due to anyone by just claim, legal guarantees, moral principles, etc[2]. The popular element in these definitions is the distinguishing principle between moral and legal rights. In a legal sense, the right can be understood as a standard of permitted action by law. Such permitted action is backed by the authority of law and violation of them may invite legal sanctions. Further moral rights are based on moral reasons and virtue of righteousness. They are not backed by law but by society and may attract social admonition.

Professor Holland distinguishes legal rights from moral rights and rights. He says for might that if a man by his force or persuasion can carry out his wishes, either by his acts or by influencing the acts of others, he has the ‘might’ to do so. And about moral rights, he says, that if society or public opinion views something as correct or shows no disapproval to the wishes of a man, then he has the moral right to carry out his wishes. On legal rights, Holland opines, “irrespective of his having or not having, either the ‘might’ or ‘moral right’ on his side, the power of the state will protect him in so carrying out his wishes, and will compel such acts or forbearance on the part of other people, as may be necessary so that his wishes may be so carried out.”[3]

He states the relation of law to morality as follows: “There are certain classes of actions which affect directly and the welfare of the individual and the community. These are governed by a few simple rules which every man may know. These are the rules of morality.[4]

Mill [5], whilst endorsing Bentham’s overall Utilitarian position, thought that analytically moral and legal rights were closely connected — “When we call anything a person’s right, we mean that he has a valid claim on society to protect him in the possession of it, either by the force of law or by that of education and opinion.” Those things which ought to be so protected were those which concerned the fundamentals of human well-being and were, therefore, a sub-set of those things which a person ought to have on grounds of utility. Many contemporary writers agree that the core concept of a right is something common to law and morality[6]

Concept of Legal Rights: Meaning and Definitions

According to Kelsen, the word Right has multiple uses.

 Firstly, it is used to refer to an action that is not legally forbidden or that is legally permitted in a negative sense.

Secondly, it is also used to refer to the fact that an express authorization to an individual is granted by a certain organ of the community, i.e., an action permitted in a positive sense or the legal order governs the performance of a certain activity.

Thirdly, the term “right” is the correlation of the (active or passive) obligation of another agent.

Fourthly, at times it is used to designate a private right in a technical sense or right in personam to enforce the compliance of his right in front of the redressal authority.

 Fifthly, it is also used to refer to political rights such as influencing the formation of the will of the state, to participate directly or indirectly in the making of legislation, and through representations in the form of elections or voting.

Finally, it also refers to the fundamental rights or liberties, commonly granted by the constitutions of modern States, which determine the content of the laws negatively and establish the procedure by which non-compliance invalidate the laws and declared as unconstitutional.[7]

For Holmes, Legal Rights are nothing but permission to exercise to certain natural power and upon certain conditions to obtain protection, restitution, or compensation by the aid of public force.[8]

Salmond defines a right as interest and protected by a rule of right. It is any interest, respect for which is a duty, and this disregard of which is wrong. The main elements of this definition are: 

  1. Firstly, “a rule of right” means a rule of law, or which is judicially enforceable.
  2. Secondly, a right is an interest. The element of interest is essential to constitute a right.

 Salmond, in laying down his definition of right, follows Ihering’s theory of right.  Ihering said that “right is legally protected interests” which means only those interests are rights that can be protected by law.

According to Austin, a right is defined as a ‘faculty which resides in a determinate party or parties by a given law and which avails against a party or parties other than the party or parties in whom it resides’. It can be inferred from Austin’s definition that he tried to establish a corresponding relation between right and duty. For him, the existence of a right in an entity meant the existence of a corresponding duty in the other. In the absence of a duty, a right cannot subsist. This proved to be a vague notion.

Holland expressed similar views as Austin regarding the understanding of legal rights. He also distinguishes right and a legal right. Definition of Right given by him is as follows:  “one man’s capacity of influencing the acts of another, by means, not of his strength, but the opinions or the force of society”.

He considers legal rights as the capacity possessed by a person to control others’ actions with the assent and assistance of the state.

Elements of A Legal Right

There are five elements of a legal right as provided by Salmond:

  • The subject of Right or the Person of Inherence: The person with whom the right is vested or who is entitled to rights.
  • The subject of Duty or the Person of Incidence: The person who is bound by corresponding duty.
  •  Res Concerned: It is the object or subject matter of rights to which the right relates or is exercised.
  • Act or Forbearance: It is the content of the right. The act or omission in respect of the person in whom the right resides.
  • Title: Every legal right has a title which is vested in the owner against others.

Theories of Rights

Will theory

The will-theory of rights says that the right emerges from the human will. It upholds that the very objective or purpose of the law is to grant the widest possible means of self-assertion i.e. the maximum of individual self-assertion, therefore, on this notion rights are nothing but only inherent attributes of the human will. The mental attitude of the claim or demand is the historical basis of rights[9]. Even states cannot interfere because the man is sovereign in the personal assertion of the individual’s will in the form of rights. The exponents of this theory are Pollock, Vinogradoff, Austin, Holland, and H.L.A. Hart.

 The definitions of right given by Austin and Holland lay down that the “will” is the main element of a right. According to Austin, the right of a person means that others are obliged to do or forebear from doing something about him. The Austinian conception of right is based on the sovereign power of the state. Likewise, Austin defines the duty of an obligation the breach of which is punishable because of the penal sanction attached to it.


Duguit strongly criticizes the “will” theory as he opines that the basis of law is the objective fact of “social solidarity” and not the subjective will. The law is to protect only those acts or rights which further “social solidarity”. The idea of an individual will is anti-social.

Secondly, the law respects the wills of the individuals but curtails them to the extent to which it is in conflict with the wills of the other individuals or is in conflict with the social interest in general. It is due to these reasons that Paton says that “will is an essential element in the general conception of legal right, but it is not the only element”.

Interest Theory

The main proponent of this theory is Ihering; a scholar of the Sociological School of Jurisprudence which considers Law is made to serve the Social Purpose and propounded the concept of Social Engineering. In his “spirit of Roman law”. Ihering defined rights as a legally protected interest. Interests are created by the community; not by the state. The basis of a legal right interest and not will. Law always has a purpose and the purpose of the law is to protect a certain interest and not the individual wills. Salmond also supported Interest theory but added to it an element of recognition by the state. He viewed that a legal right only exists when it is recognized and protected by the state. Thus it should attract enforceability.

Roscoe Pound also believed that legal rights are essential interests recognized and administered by law and belong to the ‘science of law’ instead of ‘law’. He proposed that such Rights are conceptions by which interests are given form to secure a legal order.

Dr.Allen has attempted to reconcile the two theories by pointing out that the absence of legal right seems to be, not legally guaranteed power by itself nor legally protected interest by itself, but the legally guaranteed power to realize an interest. Thus, a sound theory would be to consider both the elements of “will” and “interest” as essential ingredients of a legal right.

Protection Theory

All rights are granted by the state in the form of law. So, rights are the actions permitted by the state authority.   Thus the most characteristic feature of a legal right is the recognition granted by a legal system and its enforceability by a legal process.

Some concepts related to Legal Rights

Injuria Sine Damnum

This Latin legal maxim refers to legal injury without damage or infringement of a legal right which calls for legal action without any damage being caused. Courts provide a remedy for the infringement of Legal Rights. The liability is imposed upon the person who violates such rights. Under the law of torts, this maxim emerged from the famous case of Ashby v. White[10]. In this case, the defendant, a returning officer restrained a qualified voter that is the plaintiff to cast his vote for the candidate whom he wanted to win in elections. Though the candidate got elected and no damage was caused to the plaintiff as such but his legal right to vote his favorite candidate and participate in the political process got infringed. Hence the defendant was liable and this legal injury is actionable.

 Damnum Sine Injuria 

This phrase is the reverse of the above maxim. It means damage caused without any legal injury. Thus the harm suffered is not caused due to violation of any legal right and as such, no action lies under law. Case of Gloucester Grammar School[11] can be referred to in this regard.

Ubi Jus Ibi Remedium

This Latin maxim is a general principle of law which means ‘where there is a right, there is a remedy’. The existence of a right implies the existence of a remedy for the enforcement of that right or redressal on its infringement. The law gives this remedy to protect it or damages in case of loss.

Classification of Rights

Salmond classified rights in the following manner:

Positive and Negative Rights

A positive right corresponds to a corresponding duty and entitles its owners to have something done for him without the performance of which his enjoyment of the right is imperfect. The person subject to the duty is bound to do something. Negative rights have negative duties corresponding to them and enjoyment is complete unless interference takes place. Therefore, the majority of negative rights are against the entire world. in case of negative rights, others are restrained to do something

Real and Personal Rights

A real right corresponds to a duty imposed upon persons in general. A real right is available against the whole world. Real rights are right in rem.

A personal right corresponds to a duty imposed upon determinate individuals. Personal rights are right in personam.

Right in Rem and Right in Personam

It is derived from the Roman term ‘action in rem’. right in rem is available against the whole world.

It is derived from the Roman term ‘action in personam’. A right in personam is available against a particular individual only

Proprietary and Personal Rights

Proprietary rights mean a right in one’s property. These rights have some economic or monetary value. Personal rights are rights that arise out of any contractual obligation. Personal rights are the entitlement of a person whereas proprietary rights mean rights of the owner of wealth and property. Personal rights may not have economic value but have dignity and reputation

Inheritable and Uninheritable Rights

A right is inheritable if it survives the owner. A right is un-inheritable if it dies with the owner

The General Classification of Rights

The classifications mentioned below are all-inclusive and comprehensive:

  • Antecedent right and remedial right (Primary and Sanctioning Right): Primary rights are also called the antecedent or substantive rights. Similarly, sanctioning rights are also called remedial or adjectival rights. A right exists independent of any other right is antecedent right whereas the right is created from the violation of rights will be remedial rights. A violation or breach of the primary rights, on the other hand, gives rise to a sanctioning right or remedial right.
  • Corporeal rights and incorporeal rights: Corporeal rights are rights over physical property whereas incorporeal rights are rights over intellectual property.
  • Fundamental rights and legal rights: Fundamental rights are the rights guaranteed by the constitution whereas legal rights are guaranteed under statutory laws.
  • Legal rights and equitable rights: Legal rights are guaranteed by way of parliamentary law whereas equitable rights are guaranteed by equity law. Equity law was solely recognized in the court of chancery. Before the passing of the judicature act, 1873, there were two distinct coordinate systems of law in England which were called the common law and the equity law. At that time, legal rights were recognized by the court of chancery, also the court of equity. This distinction was later on abolished but the existence of common law and equity as two distinct branches of law persists in England. In India, though we have no such distinction we consider Justice, Equity, and Good Conscience as a source of law.

If in any situation there is a conflict between law and equity, the legal rule shall prevail. This is governed by the principle- “where there are equal equities, the law shall prevail”.

  • Perfect right and imperfect right: Perfect rights seek perfect duty whereas imperfect rights seek conditional duty. Perfect rights have direct enforcement whereas imperfect rights have indirect enforcement. “Perfect right” means the complete right i.e. the right for which there is remedy also. If a breach is made to a right of a person then if the aggrieved party has remedy left to get his right enforced is a perfect right and when in case of a breach the right is not enforceable in a court of law then it is known as “imperfect right”.
  • Primary right and secondary rights: Primary rights are basic rights whereas secondary rights are sanctioning rights.
  • Principal rights and accessories right: Principal rights are apparent or main rights whereas accessory rights are petty rights like servitude and lease etc. When one right is available to a person because of the existence of another right than one right is principal right and another right is an accessory right.
  • Right in re propria and right in re aliena: “Re” means thing; “propria” means of his own and “aliena” means of others. If a person has a right in his own thing or property he is said to have a right in “re propria” and if he has a right in the property belonging to another than he is said to have a right in re-aliena, also known as encumbrances.
  • Vested right and contingent right: Vested rights are direct rights in respect of which all events essential to vest the right in the owner have happened. In the case of Contingent rights, it depends upon the happening of condition precedent the contingent right then it will become a vested right. The former is not dependent upon the fulfillment of any condition and it creates an immediate proprietary right. Also, a vested right is inheritable and transferable, a contingent right is un-inheritable and non-transferable.
  • Public and Private Rights: A right vested in the state is called a public right. The state enforces such right as a representative of the subjects in the public interest. A public right is possessed by every member of the public. A private right, on the other hand, is concerned with only private individuals, that are both the parties connected with it are private persons.
  • Municipal and International Rights: Municipal rights are conferred by the law of a country. International rights are conferred by international law.
  • Jus Ad Rem:  A right which is originated from a right. A right to a right is called jus ad rem. The person of inherence has a right to have some other right transferred to him. It is always a right in personam.

Concept of Rights in India

The concept of Rights has found a place in the Fundamental Rights embedded in Part III of the Constitution of India. The Farsightedness of the makers of the Constitution and the zeal of members of the Constituent Assembly resulted in the formation of an all-inclusive and comprehensive Constitution which encompassed such features from every constitution in the world and took its present form. The concept of fundamental rights was taken from the British Constitutionalism and the pioneering idea of enshrining them in a constitution was borrowed from the U.S.A.

The Fundamental Rights are perceived as basic human rights which are essential for human existence, that distinguish humans from other living beings; they exercise the authority of law and are backed by enforceability. The Judiciary of our nation guarantees the protection of our Fundamental Rights and these rights act as a watchdog on the use of arbitrary powers of the state. These rights are negative in this sense and put an obligation over the state not to infringe on these rights of citizens by way of any law, action, order, rule, etc. Along with guaranteeing these rights, the constitution has provided remedies for the enforcement of the same in the form of Articles 32 and 226. Thus these rights can be justified against the state and put an obligation over the latter to ensure its protection.

It was held by the apex court in the case of Bandhua Mukti Morcha v. Union Of India & Others[12] that “any member of the public acting bona fide can move the court for relief under Article 32 and also under Article 226, so that the fundamental rights may become meaningful not only for the rich and the well-to-do who have the means to approach the court but also for the large masses of people who are living a life of want and destitution and who are because of lack of awareness, assertiveness, and resources unable to seek judicial redress.”

Concept of Duties

legal obligation or legal duty is the behavior opposite to that regarding which a legal norm attaches a coercive act as a sanction.[13]

According to Keeton, a duty is an act of forbearance which is enforced by the state in respect of a right vested in another and breach of which is wrong. Every right implies a co-relative duty and vice-versa.

According to Prof. Dicey, “a duty is a species of obligation. People obey it due to indolence, deference, sympathy, fear, and reason and due to psychological, social, and moral pressures. Most duties are supported by the State. The breach of the duty is imprisonment or fine.”[14]

Duty is the correlative of a right which can be understood as an obligation to do something. It is an act whose opposite would be wrong. Whenever law ascribes duty to a person, a corresponding right also exists with the person on whom the duty is imposed. This view was stated by Salmond.

Salmond also believed that no right can exist without a corresponding duty. Every right or duty involves a bond of a legal obligation by which two or more persons are bound together. Thus, there can be no duty unless there is someone to whom it is due; there can be no right unless is someone from whom it is claimed, and there can be no wrong unless there is someone who is wronged, that is to say, someone whose right has been violated.[15]

This is also called vinculum Juris which means “a bond of the law”. It is a tie that legally binds one person to another.[16]

According to Austin, Duties can be divided into two types:

a. Relative Duty – There is a corresponding right to such duties.

b. Absolute Duty – There is no corresponding right as such.

Austin considers the essence of a right is that it should be vested in some definite person and be enforceable by some form of legal process instituted by him against the violator.

Thus, Austin assumes that a right cannot vest in an indeterminate or a vague entity like the society or the people. The second assumption is that sovereign creates rights and can impose or change these rights at its will. Consequently, the sovereign cannot be the holder of such rights.

Austin stated 4 kinds of absolute duties:-

1. Duty towards God that is not towards human beings;

2. Duties towards indeterminate persons or the public at large, such as the duty not to commit a nuisance. 

3. Self-regarding Duties, such as the duty not to commit suicide or duty not to become intoxicated.    

4. Duty towards State or sovereign.[17]

Hibbert refers to absolute and relative duties. The former duties are owed only to the state, breach of which is generally called a crime, and the remedy, therefore, is punishment. The latter kind of duties is owed to any person other than the one who is imposing them, the breach of which is called a civil injury which is redressable by compensation to the injured party.

Classification of Duties[18]

Moral Duty and Legal Duty: A Legal duty is the opposite of a legal wrong and it is recognized by the law for the administration of justice. Moral duty is the opposite of moral wrong though it is not recognized by law it is followed due to established social norms and values.

Antecedent duty and remedial duty: A duty exists independent of any other duty is antecedent duty whereas the duties are created from the violation of rights will be the remedial duty.

Fundamental duty and legal duty: Fundamental duties are duties imposed over citizens which they owe towards their nation and its constitution whereas legal duties are duties imposed by statutory laws.

Positive duty and negative duty: A positive duty is a duty when the law obliges us to do an act whereas negative duty is when the law obliges us to refrain from doing an act.

The primary duty and secondary duty: A primary duty is a duty that exists per se and is an absolute duty independent of other whereas secondary duty is one which has no independent existence of other duties and results from the violation of duty.

Vested duty and contingent duty: Vested duties are direct duty whereas contingent duties are conditional duty.

Concept of Duties in India

The concept of Duties as understood in India is provided under the Indian Constitution in the form of Fundamental Duties under Part IV- A. It was added by the 42nd Constitutional Amendment Act, 1976 by which Article 51- A came into existence. It prescribes 11 Fundamental duties for every citizen of India that they need to abide by. It states the foremost duty of citizens to obey the Constitution and respect its ideals and institutions, and the National Flag and National Anthem. The citizens must always uphold and protect the sovereignty and integrity of our nation, moreover, every citizen must defend the country when called for, to promote harmony and fraternity, to preserve our rich heritage and culture, to protect the environment and natural resources, to develop a spirit of humanism, strive towards excellence and opportunity of education to the children between the age of six to fourteen years should be provided by their parents or guardian. These duties through fundamentals are not enforceable in the court of law. But the legislature may embody these duties in the form of legislation and can impose fines and penalties for its non-compliance. The era of Judicial Activism and the filing of Public Interest Litigations have further contributed to the proactive role of Judiciary and citizens in recognizing and enforcing these duties.


Thus the concept of rights and duties holds an important place in every legal system of the world. Without the existence of rights and duties, the citizens have no more than an animal existence. Merely granting of rights and duties by the state holds no good until and unless they are backed by the rule of law that is legal protection is granted to them and they are enforceable in the courts of law. The concept and coverage of rights and duties have been broadened in modern times and even the rights of non-humans are recognized. Various trends have been visible in the jurisprudence and application of these rights and duties and the courts have been adaptive to the changing needs of the society.

 Frequently Asked Questions (FAQs)

  1. Theories of Rights
  2. Major characteristics or elements of rights as given by Salmond
  3. Differences between various kinds of rights.
  4. Nature of duties
  5. Austin’s classification of duties


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