JURISPRUDENCE

Dr Shakuntala Misra National Rehabilitation University

Jurisprudence

Project on Characteristic Of Legal Right

Gaurav Pandey
2015/ B.Com LL.B. / 01
B.Com LL.B. (Hons.)
II Year, IV Semester
Submitted on : 12/11/2016
Dr Shakuntala Misra National Rehabilitation University,
Mohan Road, Lucknow,

1
 JURISPRUDENCE

Table of Contents

TOPIC: ........................................................................................................................................ 4
SUBJECT: ................................................................................................................................... 4
OBJECTIVE: ............................................................................................................................... 4
RESEARCH QUESTIONS:.........................................................Error! Bookmark not defined.
INTRODUCTION ............................................................................................................. 5
1.1 LEGAL WRONGS ................................................................................................................ 5
1.2 DUTIES .............................................................................................................................. 6
1.3 LEGAL RIGHTS .................................................................................................................. 6
THEORIES OF LEGAL RIGHTS .................................................................................. 8
2.1 THEORIES OF LEGAL RIGHTS ............................................................................................. 8
HOHFELDS ANALYSIS OF RIGHTS ........................... Error! Bookmark not defined.
3.1 ESSENTIAL ELEMENTS OF A LEGAL RIGHT ........................................................................... 12
3.2 FOUR TYPES OF RIGHTS BY HOHFELD: .................................................................................. 14
CONCLUSION & CRITICISM .................................................................................... 17

2
 JURISPRUDENCE

ACKNOWLEDGEMENT

I hereby express my heartfelt gratitude to Dr. Shefali Yadav for her guidance and supervision.
This project topic has instilled in us a unique thirst for knowledge in the subject. It could not
have achieved completion without the aegis of Dr. Shefali Yadav.

3
 JURISPRUDENCE

TOPIC:

Legal Rights and Duties

SUBJECT:

Jurisprudence

OBJECTIVE:

Study and analyze the scheme of Jural Relations and Legal Conceptions in the backdrop of
Hohfelds analysis of Legal Rights and Duties.

RESEARCH METHODOLOGY

This section talks about the methodology which will be used for this piece of research work.
Methodologies vary from research work to work due to the difference in subjects, areas and
study view. Research methodology is a way to systematically solve the research problem. It
may be understood as a science of studying how research is done scientifically. In it we study
the various steps that are generally adopted by a researcher in studying his research problem
along with the logic behind them. For the purpose of this project we have used Conceptual
Research Methodology. Conceptual research is that related to some abstract idea(s) or
theory. It is generally used by philosophers and thinkers to develop new concepts or to
reinterpret existing ones.

SOURCE:

The project has been prepared using secondary sources of reference, mainly through the use
of research cards for lifting relevant information from different sources and compilation into
relevant headings. Reliance has been placed on various Books, Articles, Journals, Periodicals
and Weeklies.

4
 JURISPRUDENCE

INTRODUCTION

The real credit of development of human civilization goes to law and its prohibitive process
which apprised man of his rights and duties as a unit of the society. 1 When people come in
contact as members of society, they have certain legal rights and duties towards one another.
These rights and duties are regulated by the law prevalent in the society. It is well known that
the main purpose of law is to protect human interest by regulating the conduct of individuals
in the society. For the attainment of this objective, it is necessary that state should make use
of its physical force for the enforcement of legal rights and punish those who violate these
rights.

It, therefore, follows that in all civilized societies law consists of those rules which regulate
human conduct and it is the state which enforces the rights and duties created by such rules.
The conception of right accordingly is of fundamental significance in modern legal theory
because rights are indispensable for all civil societies and are recognized and enforced by the
state.

It is to be noted that the term right is closely connected with the terms wrong and duty. It
would, therefore, be desirable to refer to them before analyzing the concept of right.

1. LEGAL WRONGS

Salmond defines wrong as an act contrary to the rule of right and justice. A synonym of it
is injury, in its true and primary sense of injuria. In its legal sense, it is known as legal injury
which is against law or jus.

Wrongs may be of two kinds namely, (1) Moral wrongs and (2) Legal wrongs.

A Moral wrong is an act which is morally or naturally wrong, being contrary to the rule of
natural justice whereas a legal wrong is an act which is legally wrong, being contrary to the

1
Subbarao G.C., Jurisprudence (3rd ed.) p. 161.

5
 JURISPRUDENCE

rule of legal justice and a violation of the law. In simpler words, a wrong is a violation of
legal right (injuria).

A legal wrong may or may not be a moral wrong and conversely a moral wrong may or may
not be a legal wrong. For instance, nonpayment of a time-barred debt is a moral wrong but it
is not a legal wrong since the same is not enforceable by law. Generally, recognition of an act
as a legal wrong entails punishment or suppression by the physical force of the state.

2. DUTIES

A Duty is an obligatory act i.e., it is an act the opposite of which would be wrong. Thus
duties and wrong are generally co-related. The commission of a wrong is the breach of duty
and the performance of a duty is avoidance of wrong.2

Duties are of two kinds, namely (1) Legal and (2) Moral.

A duty may be moral but not legal or it may be legal but not moral or it may be both moral
and legal at once. Salmond illustrates this by an example. In England, there is a legal duty not
to sell, have for sale adulterated milk whether knowingly or otherwise, and without any
question of negligence.3 Since this duty is irrespective of knowledge and negligence, it is
exclusively legal; and not a moral duty. On the other hand, there is no legal duty in England
to refrain from offensive curiosity about ones neighbor, even if the satisfaction of it does
them harm. Here it is clearly a breach of moral duty and not of legal duty. 4Not to steal is
both, ones moral and legal duty.

3. LEGAL RIGHTS

Sir John Salmond defines right as an interest recognized and protected by a rule or justice. It
is an interest in respect of which there is duty and the disregard of which is wrong. A man has
varied interests but all of them are not recognized by law. Many interests exist de facto and
not de jure; they receive no recognition or protection from any rule of right. The violation of

2
Fitzgerald P. J., Salmond on Jurisprudence, (12th ed.) p. 217.
3
The doctrine of constructive mens-rea applies in such cases.
4
Fitzgerald P. J., Salmond on Jurisprudence, (12th ed.) p. 217.

6
 JURISPRUDENCE

them is no wrong, and respect for them is no duty. Interests are things which are to mans
advantage, e.g., a man has interest in his freedom or reputation.

Like wrongs and duties, rights are either moral or legal. A moral or natural right is an interest
recognized and protected by a rule of morality-violation of which would be a moral wrong.
For example, parents interest to command respect from their children is their moral right but
if children violate it, it is a moral wrong. A legal right, on the other hand is an interest
recognized and protected by a rule of law, violation of which would be a legal wrong. Thus
everyone has right to privacy in his house and if any person interferes with this right, it would
be a legal wrong.

John Austin observes, A party has a right when another or others are bound or obliged by
law to do or forbear towards or in regard of him. This definition has been criticized on the
ground that it overlooks the element of interest involved in the conception of right. John
Stuart Mill illustrates the inadequacy of Austins definition of right by pointing out that when
a prisoner is sentenced to death the jailor is duty-bound to execute him.

Ihiring also defines right as a legally protected interest. He considers law as a means to an
end.

The eminent French jurist Duguit is opposed to the view that the basis of a legal right is
human will. He argues that all laws originate from social solidarity hence there is no
existence of a right as such.5 Duguit believes that human will is opposed to social good
because it always leads to conflict of interests between individuals. Therefore, there is no
place for the concept of right in society. Law being an expression of social solidarity,
demands that everyone should abide by his duties and has no right to claim rights. Thus
Duguit rejects the concept of rights as immoral against the interest of the society.

5
Paton, A Text Book of Jurisprudence, p. 222.

7
 JURISPRUDENCE

THEORIES OF LEGAL RIGHTS

1. THEORIES OF LEGAL RIGHTS

There are two main theories regarding nature of legal rights. They are (1) The Will Theory,
and (2) Interest theory:

1.1 Will Theory of Legal Right

The Will theory of legal rights has been supported by Hegel, Kant, Hume and others.
According to this theory, a right is an inherent attribute of the human will. The subject-matter
of right is derived from human will. The theory suggests that it is through a right that a man
expresses his will over an object. The theory has been also accepted by historical jurists of
Germany. Puchta observed that a legal right is a power over an object which by means of his
right can be subjected to the will of the person enjoying the right. Vinogradoff considers that
psychology of asserting claim is the basis of legal right. In a social order established by law
no man is absolutely free to act as he likes, but his freedom of action is restricted due to rights
of others.

According to Austin, right of a person means that others are obliged to do or forbear from
doing something in relation to him. Austinian conception of right is obviously based on
sovereign power of the state. Likewise, Austin defines duty as an obligation the breach of
which is punishable because of the penal sanction attached with it. Justice Holland of U.S.A.
pointed out that a legal right is nothing but permission to exercise certain natural powers to
obtain protection under certain conditions. It has the support of public force for its
protection.6

Duguit suggests that will is not an essential element of a legal right or law. The real basis of
law is social solidarity. He calls theory of subjective right as a mere metaphysical abstraction.

6
Dias & Hughes: Jurisprudence, p. 250.

8
 JURISPRUDENCE

1.2 Interest theory of Legal Right

Another popular theory regarding the nature of legal right is called the Interest theory which
was mainly propounded by the German Jurist Ihring. According to this theory, a legal right
is a legally protected interest. Ihring does not emphasize on the element of will in a legal
right. He asserts that the basis of legal right is interest not will. The main object of law is
protection of human interests and to avert a conflict between their individual interests. But
Salmond has criticized Ihrings theory on the ground that it is incomplete since it completely
overlooks the element of recognition by state. A legal right should not be protected by the
state but should also be legally recognized by it. He cites an example to substantiate this
view. The interests of beasts are to some extent protected by law in as much as cruelty to
animals is a criminal offence.7 But beasts cannot for that reason be said to possess a legal
right of not being treated with cruelty. Salmond treats the right to protection of animals from
cruelty merely as a moral right.

Professor Gray was greatly impressed by Salmonds view about legal right. He, however,
held that the interest theory was only partly true. He emphasized that a legal right is not an
interest in itself but it is only a means to extend protection to interests. He considers legal
right as that power by which a man makes other persons do or refrain from doing a certain act
by imposing a legal duty upon them through the agency of law (State). Thus, for example, if a
man lends some money to another, the right of the creditor to recover his money from the
debtor is, in reality, not his legal right but it is rather a power conferred on him by law by the
exercise of which he recovers the debt. In other words, the creditors interest to get back his
money from the debtor is protected by law but this interest is not a legal right in itself, it is
rather his object. It is the power conferred on him by law to recover the money which is his
legal right.

The principal aim of Wesley Newcomb Hohfeld's project was to clarify juridical relationships
between the relevant parties. Hohfeld presents us with an analytical scheme which splits
rights into four different categories of jural relationships and exemplifies a number of
analytical distinctions between various legal positions. Importantly, Hohfeld's analysis of
rights lies in the descriptive exercise of the legal positions which are connected with each

7
In India, the Prevention of Cruelty to Animals Act, 1960

9
 JURISPRUDENCE

other by means of logical relations of entailment and negation. Hohfeld's analysis is engaged
in an analytical and definitional enterprise and does not concern itself with substantive or
empirical enquiry into the concept of a right. It follows that Hohfeld's ambition was to
provide a conceptual understanding for our use of right, duty etc in practice, thus facilitating
a better understanding of the nature of our rights. It was not, however, to inform us what
rights, duties etc are or should be or what their moral foundation is or what is necessary for
something to count as a right, duty etc. He does not, therefore, say anything about the
justification of rights. Hohfeld's tablepresents a distinction between four different sets of
juridical relationships. This method of splitting the notion of a right into its constituent
elements has many important benefits. It is this clear and precise method that makes
Hohfeld's analysis of rights not only elegant and attractive but also fundamental to anyone
wishing to make an informed and intelligible assessment of the legal position between the
parties involved.

This project argues in support of Hohfeld's analysis of rights. It contends that his approach is
highly plausible and helps us to gain a clear understanding of what rights we have in various
circumstances and allows us to see clearly what the consequence of holding a particular
Hohfeldian entitlement or burden is. It will be argued that Hohfeld's precise exposition of
jural relations is essential to jurisprudence and an understanding of our practices involving
rights. Hohfeld's analysis has attracted much criticism from his fellow jurists, so, to provide a
balanced view, in arguing in favour of Hohfeld's work, we will consider those criticisms, in
order to show that the majority of them are unfounded because the critics have misconceived
the nature of Hohfeld's work. Others are simply not criticisms at all in that they simply state
rival theories of rights. As far as the critics go, it is pertinent to distinguish between anti-
Hohfeldian and non-Hohfeldian. The former are critics who directly oppose Hohfeld's
analysis, holding that it is not necessary, or even flawed, in that it does not depict our true
conventional practices in relation to rights and does not account for an adequate conception
of our rights. The latter are those who do not rely on Hohfeld's analysis per se but seek to
offer an intelligible account of the conception or use of our rights. Such an account may
linguistically8appear to be in conflict with Hohfeld's analysis. But given, as we will argue in
this project, that Hohfeld's analysis possesses a high degree of clarity and a remarkable

8
Harris criticisedHohfeld for the fact that his vocabulary does not match that of his fellow jurists. J.W. Harris,
Legal Philosophies (London, 1980), p.82

10
 JURISPRUDENCE

analytical9 force, it must represent a highly accurate depiction of the nature of our jural
relations. It follows that a non-Hohfeldian without directly acknowledging it will tacitly rely
on Hohfeld's analytical framework if he is to provide a coherent account of his position. The
significance of this distinction will become apparent when the critics are discussed.

It is also important to note that since Hohfeld's analysis is definitional or stipulative and not a
product of empirical enquiry, arguably it is nonsusceptible to disproof by means of empirical
or moral refutation.10 Therefore, critics who try to disprove the validity of Hohfeld's analysis
by resorting to such means must be misconceiving Hohfeld's intention behind the stipulative
nature of his project. It follows that a critic who tries to show the invalidity of Hohfeld's
analysis by engaging in empirical refutation must, in effect, be putting forward an alternative
conception which is capable of application in a different way,but which does not refute
Hohfeld's analysis in any way.

Conversely, it must be true that we also cannot validate Hohfeld's analysis of rights by
finding flaws in rival analyses, given the stipulative nature of Hohfeld's work. If this is so,
then what would be the point in tackling the criticisms put forward against his work, since
they cannot either disprove or confirm the validity of his work? We could simply accept
Hohfeld's analytical approach for its clarity, elegance and analytical precision without having
to trouble ourselves with building a response to his critics. Indeed, it could be argued that
there is no such need and Hohfeld's stipulative analysis should be left to stand as it is unless
one argues that his analysis is more than merely stipulative and perhaps one that can be taken
to embody necessary truths about rights,11in which case Hohfeld's analysis may serve to
establish falsities in rival analyses and be validated itself. To prove this would require an
argument which would call into doubt the general view of conceptual analysis on which
Hohfeld's project is based (merely stipulative) but it is beyond the scope of this paper to
argue that his work is more than merely stipulative and that it can serve as a finder for the
necessary truths about rights and present a ground revealing falsities in rival analyses etc.

9
N.E. Simmonds in Central Issues in Jurisprudence: Justice, Law and Rights (London, 1986), p.129
10
M. Kramer, 'Rights without Trimmings' in A Debate over Rights, Philosophical Enquiries, (Oxford, 1998),
pp.22-23.
11
S. Coyle, 'Are There Necessary Truths About Rights?', in The Canadian Journal of Law and Jurisprudence
(2002), p.4

11
 JURISPRUDENCE

ESSENTIAL ELEMENTS OF A LEGAL RIGHT

According to Salmond every legal right has the following five elements or characteristics:-

The Person of Inherence- He is also called the subject of right. A legal right is always vested
in a person who may be distinguished as the owner of the right, the subject of it or the person
of inherence. Thus there cannot be a legal right without a subject or a person who owns it.
However, the owner of the right need not to be certain or determinate. For instance, an
unborn child possesses a legal right although it is not certain whether he would be born alive
or not. Likewise, a right can be owned by the society at large, it is a valid right though the
subject of right is indeterminate.

The Person of Incidence- A legal right avails against a person upon whom lies the co-
relative duty. He is distinguished as the person of incidence. He is a person bound by the
duty and so may be described as subject of the duty.

Contents of the Right- The act or omission which is obligatory on the person bound in favour
of the person entitled. This is called the content or substance of right.

Subject matter of Right- It is something to which the act or omission relates, that is, the thing
over which a right is exercised. This may be called the object or subject-matter of the right.

Some writers, particularly Dr. Holland argue that there are certain rights which have no
objects. He cites an illustration of master and servant relationship. If B is the servant of A,
then in this case A is the person of inherence, B is the person of incidence and reasonable
service is the act to which A is entitled. But in this case the object of right is missing12
because there is no material thing to constitute an object in this illustration. Sir Salmond,
however, considers that Holland looks at the object of right with such narrowness that he is
forced to conclude that there are some rights which have no objects. According to Salmond
the object in the instant illustration is the skill, knowledge, strength, time etc. of the person
bound by the duty.13

12
Holland, Elements of Jurisprudence, p. 88.
13
Fitzgerald P.J., Salmond on Jurisprudence, (12th ed.) p. 223.

12
 JURISPRUDENCE

Title of the Right- Every legal right has a title, that is, certain facts or events which are events
by reason of which the right has become vested in its owner.

13
 JURISPRUDENCE

FOUR TYPES OF RIGHTS BY HOHFELD:

Here, A and B are persons and X is a situation.

Claim-rights - A has a claim-right against B with regard to X just in case B has a

duty to A to bring about X.

Example: B borrowed $100 from A. So A has a claim right against B that B

returned $100 to A.

Privileges (liberties) - A has a privilege against B to X just in case B has no claim

right against A not to X.

Example: If A the right (against the Japanese Government) to stay in Japan,

then this is a privilege. It means that the Japanese Government has no claim-
right against A that he leaves the country. Or in other words, A has no duty to
the Japanese Government that he leaves Japan.

Powers (authority rights) - A has a power over B with respect to X just in case he can
change B's rights with regard to X.

Example: The librarian has the power over a student with regard to the use of
the library. Normally a student has the right to use the library. But if a student
is noisy then the librarian has the power to take away that right and stop the
student from using the library.

Immunities - A has an immunity against B with respect to X just in case B has no

power over A's rights with respect to X.

Example: Diplomats are supposed to have diplomatic immunity. If they have

committed a crime in their host country, they are immune against arrests and
legal prosecution. In other words, the police would have no power over them.
(They can still be expelled though.).

Notice that these four kinds of rights are related to each other, at least in the following ways:

14
 JURISPRUDENCE

A claim-right corresponds to the absence of a privilege - Suppose A has a claim-

right against B that B performs some action K. Then B does not have the privilege of
not doing K. For example, if A lends $10 to B, then A has a claim-right against B that
B gives $10 back to A. This implies that B does not have the privilege of not giving
$10 to B.
A power corresponds to the absence of immunity - Suppose A has power over B
with respect to a certain right of B. Then B lacks immunity against A with respect to
that right. An example is that an employer has power over its employees with respect
to their rights to enter the company building. The right to enter the building is granted
by the employer, and can be taken away as the employer sees fit. This means that the
employee lacks immunity against the employer with respect to such a right.

15
 JURISPRUDENCE

CONCLUSION&CRITICISM

Hohfeld did not only correct minor technical mistakes but he also offered a radical critique of
previous concepts of legal rights and liberties.14 In the end, there is a question of the utility of
Hohfelds scheme. The discussion on Hohfelds scheme of jural relations has turned out to be
one of the most complex discussions in the history of legal analysis. The process of the
evaluation of its utility and relevance is still going on.15

Hohfeld himself stressed the great practical importance of a clear appreciation of

the distinctions and discriminations set forth.16 The eight proposed terms-rights and
duties, privileges and no-right, powers and liabilities, immunities and disabilities-
represent the lowest common denominators of the law to which all legal quantities
may be reduced.17 They enable discovering essential similarities and illuminating
analogies in the midst of what appears superficially to be infinite and hopelessvariety to
discern common principles of justice and policy to use as persuasive authorities judicial
precedents that might otherwise seem altogether irrelevant.18

Finally, it is important to grasp that Hohfelds endeavour is analytical and definitional

rather than empirical or substantive.19 Hohfeld put forth a scheme of jural relations in which
legal positions are connected with each other by purely logical relations of entailment and
negation.20 This is the central feature of his analytical scheme which diminishes all the critiques

14
Id at 979.
15
Singer gives on almost two pages a bibliography related to Hohfeld. Since then (the article was published
in 1982) there have been a number of articles (reviews) and books thereabout. See Singer, supra note 16, at
989-91 n. 22
16
Hohfeld, FLC, supra note 16, at 63
17
Id at 64.
18
Id.
19
Kramer, supra note 24, at 22.
20
Id.

16
 JURISPRUDENCE

involving an empirical denial of Hohfelds theses.21Hohfelds goal was to provide a

precise analyze of legal rights and thus prevent confusions arising from "inadequacy and
ambiguity of terminology that refers to the use of rights, liberties and powers etc. in practice.

Hohfeld stipulates that the atomic rights elements in his analytical framework are, by
definition, always correlative. His idea that this relationship of mutual entailment between
rights and duties as well as other elements is correlative was not a product of some empirical
assessment of the nature of rights; rather, he presented the notion of correlativity as a
definitional foundation of his analysis. For Hohfeld, it was a matter of logical necessity that
there must be some kind of axiomatic mutual entailment between the rights-elements which
is congruent with the notion that his analysis is stipulative and analytical rather than empirical
or justificatory. Given the axiomatic nature of Hohfeld's stipulation of correlativity, which I
will refer to as the 'Correlativity Axiom', one should not attempt to try and refute it by
empirical counter-examples because, as I have shown above, it is not susceptible to such
attacks.

21
Id at 23.

17