DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the BB.A.LL.B. Project Report entitled “Kinds of
Legal Rights” submitted at Chanakya National Law University, Patna is an authentic record of
my work carried out under the supervision of Asst. Prof. Dr. Manoranjan Kumar.. I have not
submitted this work elsewhere for any other degree or diploma. I am fully responsible for the
contents of my Project Report.

(Signature of the Candidate)

Niharika Bhati
Chanakya National Law University, Patna

Page 1
 ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep regards to my guide Dr.
Manoranjan Kumar. for his exemplary guidance, monitoring and constant encouragement
throughout the course of this thesis. The blessing, help and guidance given by him time to time
shall carry me a long way in the journey of life on which I am about to embark.
I am obliged to staff members of Chanakya National Law University, for the valuable
information provided by them in their respective fields. I am grateful for their cooperation
during the period of my assignment.
Lastly, I thank almighty, my parents, brother, sisters and friends for their constant
encouragement without which this assignment would not be possible.

Thank you!

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 RESEARCH METHODOLOGY

Method of Research:
For the purpose of research, the researcher has used the Doctrinal Method of Research. The
Research is entirely a Library-based Research, where the researcher has made use of books, law
journals, magazines, law reports, legislations, internet websites, etc., for the purpose of research.

Aims and Objectives:

The objective of study is to do the in depth study of the various spheres of legal rights.

Hypothesis:
That the existence of a legal right is dependent upon the circumstance that some human interest
has secured the protection of the state.

Sources of Data:
Secondary-
 Books

 Journals

 Articles

 Internet

Method of Writing:
The method of writing followed in the course of this research paper is primarily analytical.

Limitations:
The important limitation of this study is the reliance on secondary data. As the study is not
empirical so the information and research is confined to books, online resources, articles in the
newspapers and magazines.

Page 3
 TABLE OF CONTENTS
DECLARATION BY THE CANDIDATE

1
ACKNOWLEDGEMENT

2
RESEARCH METHODOLOGY

3
1. Definition And Meaning Of Legal Rights
5
 Meaning 5
 Definition of Legal Rights 5
Salmond..................................................................................................................................5
Ihering.....................................................................................................................................5
Gray........................................................................................................................................6
Indian Supreme Court.............................................................................................................6
2. Elements Of Legal Rights
7
 The Person of Inherence 7
 The Person of Incidence 7
 Contents of the Rights 7
 Subject Matter of Rights 8
 Title of the Right 8
3. Theories Of Legal Rights

9
 Protection Theory of Rights 9
 Will Theory of Rights 10
 Interest Theory of Rights 10
4. Classification Of Legal Rights And Other Related Concepts
12
 Classification 12
 Legal Rights and other Related Concepts (Hohfeld’s Analysis) 13
Page 4
5. Kinds Of Legal Rights
16
6. Conclusion
20
Bibliography

21

1. DEFINITION AND MEANING OF LEGAL RIGHTS

 Meaning
The word right is used in a variety of context. There are Fundamental Rights, Human Rights,
Legal Rights and Moral Rights. There are also rights of specific groups as rights of children,
rights of women, rights of minorities, rights of refugees etc. The English word ‘right’ literally
has two meaning. In one sense, it means what is correct or just to do and the other speaks about a
person’s right to do something. A legal right is commonly defined as an interest recognized and
protected by law. Law cannot recognize and protect all the interests of the people. Thus it selects
some interests as worthy for legal protection 1. Ihering regards legal rights as such of these
interests which have obtained legal protection. According to him, one can be said to have a right
only when there exists for one some advantage, which is protected by the state. 2 In every case,
the existence of a legal right is dependent upon the circumstance that some human interest has
secured the protection of the state.

 Definition of Legal Rights

We now proceed to study right in a somewhat greater detail.

1
https://blog.ipleaders.in/concept-of-rights-and-duties-under-jurisprudence/
2
N.H. Jhabvala, The elementsof Jurisprudence, C. Jamnadas and Co., 2013
Page 5
Salmond
He says, "a right is an interest recognized and protected by a rule of right. It is an interest respect
for which is a duty, and disregard of which is a wrong". The main elements in this definition as
two: First, "a rule of right" means a rule of law, or, in others words, that which is judicially
enforceable. Thus, according to SALMOND, a right must be judicially enforceable. Second, a
right is an interest. The element of interest is essential to constitute a right.3

Ihering
Right was defined by IHERING as "an interest". It was said that this definition is very wide
because a person has no many interests but all those interests are not right. For example, a
beneficiary has an interest in trust property but it does become his right to have trust properly.
Therefore it was said by IHERING that "right are legally protected interests" that means only
those interests become rights which can be protected by law. But this idea was also not found
workable because there may be an interest which is protected but that does not become a right4.

Gray
According to him a legal right is “that power which the man has, to make a person or persons to
do or restrains from doing certain act or acts so far as the power arises from society imposing a
legal duty upon the person or persons. He states that the “right is not the interest itself; it is the
means to enjoy the interest secured”5.

Indian Supreme Court

The supreme court of India has defined legal right in “State of Rajasthan V. Union of India"
wherein it is observed:
"In a strict sense, legal rights are correlative of legal duties and are defined as interests which
the law protects by imposing corresponding duties on others. But in a generic sense, the word
right is used to mean immunity from the legal power of another; immunity is exemption from the
power of another in the same way as liberty is exemption from the right of another. Immunity, in
short, is no subjection"6

3
SALMOND ON JURISPRUDENCE 12th EDITION.
4
N.K Jayakumar, Lectures on Jurisprudence, lexis Nexis,
5
GRAY : Nature and sources ofLaw
6
AIR 1977, SC 1361
Page 6
 2. ELEMENTS OF LEGAL RIGHTS

According to SALMOND : Every legal right has been said to have the five following elements
of characteristics:

 The Person of Inherence

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 be certain or'
determinate. In other words, the subject means the person in whom the right is vested, or the
holder of the right. There can be no right without a subject 7. The subject of the right may be
determinate or indeterminate as the society at large may be the subject of a right. In briefly, it is
vested in a person, who may be distinguished as the owner of the right, the subject of it, the
person entitled or the person of inherence.
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
although the subject of right is indeterminate.

7
https://www.legalbites.in/rights-duties-jurisprudence/
Page 7
  The Person of Incidence
A legal right avails against a person upon who lays 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"8.
In other words, the person bound or the person of incidence - it means the person upon whom
falls the correlative duty.

 Contents of the Rights

The act or omission which is obligatory on the person bound in favour of the person entitled.
This is called the context or substance of right.
In other words, the act or forbearance - right relates to some act or forbearance 9. It obliges a
person to act or forbear in favour of the person who is entitled to the right. It is the content of
the right.

 Subject Matter of Rights

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 missing 10 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 duty11.

 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 his owner. In other words, in addition to these four elements,
SALMOND has given a fifth element also, that is, "title". He says that "every legal right has a

8
https://blog.ipleaders.in/concept-of-rights-and-duties-under-jurisprudence/
9
https://www.srdlawnotes.com/2016/11/kinds-of-legal-rights.html
10
HOLLAND : Elements ofJurisprudence, P.88
11
SALMOND : Jurisprudence (12th Ed.) P223
Page 8
title, that is to say, certain facts or events by reason of which the right has become vested in its
owner". SALMOND illustrates it as follows: "If A buys, a piece of land from B, A is the subject
or owner of the right so acquired. The persons bound by the correlative right are persons in
general, for a right of this kind avails against the entire world. The context of the right consists in
non-interference with the purchaser's exclusive use of the land. The object or subject-matter of
the right is the land. And finally, the title of the right is the conveyance by which it was acquired
from its former owner"12

In this way, according to him, every right involves a three-fold relation, in which it stands

1. It is a right against some person or persons.

2. It is a right to some act or omission of such person or persons.

3. It is a right over to something to which that act or omission relates.

3. THEORIES OF LEGAL RIGHTS

In connection with the definition of rights, there are, however, three theories which need a
consideration.
1. Firstly, a right is legal because it is protected or at least recognized by a legal system.
2. Secondly, the holder of a right exercises his will in a certain way, and
3. Finally, that the will is directed to the satisfaction of certain interest.

 Protection Theory of Rights

Since the characteristic feature of a legal right is its recognition by a legal system, enforceability
by a legal process, therefore, may be stated to be an indispensable condition of a legal right 13.
But this statement may not escape the following qualifications:
a) First, that the law should not' always enforce a legal right; it may, but grant the injured
party only a remedy or damages
b) Secondly, there are certain imperfect rights which the law only partially recognizes.
For instance, a statue barred debt cannot be recovered in a court of law, whereas for certain
12
SALMOND : Jurisprudence (12th Ed.) P.223
13
https://blog.ipleaders.in/concept-of-rights-and-duties-under-jurisprudence/
Page 9
purposes the existence of the debt possesses legal importance. If the debtor paid the money, he
cannot thereafter sue to recover it as money paid without consideration; and the imperfect right
has the faculty of becoming perfect, provided the debtor makes an acknowledgement of the debt
from which there can be deduced a promise to pay. But the creditor has no claim for the money,
the debtor is at liberty to pay or not to pay the time barred debts, but once he has paid it, he has
no claim to recover, since the natural obligation" restrains him from bringing an action for
money had and received. The law has indeed chopped off creditor's right to the receipt of
voluntary payments though in specific situations, that is, promise to pay, the imperfect right may
become a perfect one.
c) Thirdly, in certain legal systems courts of justice do not control and adequate machinery
for enforcement, as in case of international law there is no power in the court to enforce
its decree. It lacks certain important features, such as courts with compulsory
jurisdiction and institutional methods of law enforcement 14. Hence the answer to the
question whether the essence of a legal right in its "enforceability" will rest on the
definition of law.

 Will Theory of Rights

This theory says that the purpose of law is to grant the individual the means of self-expression
or self-assertion. Therefore, right emerges from the human will.
In other words, the will-theory of rights has been upheld by many on the ground that since the
very objective of law is to grant the widest possible means of self assertion i.e. the maximum of
individual self-assertion, rights, therefore, on this notion are nothing but only inherent attributes
of the human will. The mental attitude of claim or of demand is the historical basis of rights.15
Supported by: Kant, Hegel, Hume.
Rights are defined in the terms of will by Austin, Pollock and Holland. According to John
Locke, “the basis of the right is the will of the individual”. According to Puchta the legal rights
gives power to the person over the object which by means of right can be subjected to the will
of the person who is enjoying the right.
Criticized by: Duguit
According to him the basis of the law is not a subjective will but it is an objective will. The
purpose of the law is to protect only those acts which further support social solidarity. He
14
SALMOND : Jurisprudence (12th Ed.) P.56
15
VINOGRADOOF : The Foundation of a Theory ofRights, in Coilected Papers, II Page -367
Page 10
further stated that the theory of subjective right is a metaphysical abstraction16.

 Interest Theory of Rights

Developed by: Rudolf Von Ihering
Interest theory of rights is popular theory regarding the nature of legal right is called the
"interest theory17" which was mainly propounded by the German jurist IHERING. In his "spirit
of Roman law" IHERING defined rights as 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" and "not will". The main object of law is protection of human interests and to avert
conflict between their individual interests. These interests are not created by the state, but they
exist in the life of the community itself. The state only chooses out of them such interests, as it
will protect.

Salmond’s positive view:

He supported this theory but he stated that its enforceability is an essential condition.
Salmond’s criticism:
He criticized the interest theory on the ground that the interest is not protected by the state. In
order to confer a legal right, it is essential that interest should be protected and recognized by
the state18.
Gray’s view:
He said that this theory is partially correct because a legal right is not an interest in itself but it is
only meant to protect the interests of an individual. He also stated that legal rights confer the
right on the person to do a certain act / to forbear by imposing a legal duty on them through the
agency of law “state”19.
Dr Allen’s view:
It can be said that both the theories are not contradictory to each other but it is the combination
of both the theories. He tried to combine these two theories by pointing out that the essence of
legal right seems to be, not legally guaranteed power by itself nor legally protected by itself, but
the legally guaranteed power to realize an interest 20.  It can be concluded that both theories are
16
https://www.academia.edu/36575834/
_LEGAL_RIGHTS_DUTIES_WRONGS_INTRODUCTION_TO_JURISPRUDENCE
17
IHRING Geist des romichen Reghts, iii, P.332; see also Hallis, Corporate person P.169
18
SALMOND ON JURISPRUDENCE 12th EDITION.
19
https://blog.ipleaders.in/concept-of-rights-and-duties-under-jurisprudence/
20
https://www.legalbites.in/rights-duties-jurisprudence/
Page 11
the essential ingredients of the legal right.

4. CLASSIFICATION OF LEGAL RIGHTS AND OTHER RELATED CONCEPTS

 Classification
SALMOND classifies rights according to their object, in six ways as follows21:
Right with Material Objects
Most of the rights with which we are familiar have material things as objects. For example:
a) I have a right not to be killed. The object is my life.
b) I have a right not to be physically injured or assaulted. The object is my body, health and
integrity.
c) I have a right not to be imprisoned. The object is my personal liberty.
Rights of Reputation
The object is the good name of a person, which constitutes an asset as valuable as any material
thing. A person has a right not to be libeled. Such a right has obtained legal recognition and
protection.
Rights Relating to Domestic Relations
Every person has right to the society and affection of his wife and children. The society,
affections, etc. of the relations are the object of the right.
21
J.B. Saral, Province of Jurisprudence Determined, Lexis Nexis, P. 114.
Page 12
Right Concerning Other Rights
A and B arrive at an agreement that A shall sell to B his mortgage rights in land already
mortgaged to A. By this agreement, B acquires a right to get those mortgage rights sold to him :
and thus the object of his right is another right. In case of an agreement to sell property owned
the right transferred is a right to the right of ownership.
Rights over Immaterial Property
The object of a right may be immaterial, for instance, a new idea of an inventor is the object of a
patient; the reputation of a firm is the object of its good will. Other instances are copy-rights and
trade-marks.
Rights to Services
Instances of such rights are the rights of a master in a servant, client in a lawyer, patient in a
doctor. The object of each case is the strength, skill or learning of the person bound.

 Legal Rights and other Related Concepts (Hohfeld’s Analysis)

Hohfeld’s description of relations between various forms of legal entitlements reflects truths on
features of legal rights. Hohfeld argued that the tendency to express all legal interest in terms of
“rights” and “duties” resulted in confusion in the analysis of complex legal relations like trust,
options, escrows, future interest, and corporate interest etc.
The prime reason for this confusion in his view was the inaccuracy of the terminology. Hohfeld
observed that important legal terms, including “right” and “duty,” had no agreed meaning and
thereby caused muddled analysis.22 He notes that the term right was often used to denote several
other distinct legal interests such as powers, privileges or immunities. 23 The eight fundamental
legal conceptions resulted from Hohfeld's dissatisfaction with the idea that all the Jural relations
can be reduced to rights and duties.24 These concepts are duty, claim, liberty, no claim, power,
liability, disability, and immunity. According to him fundamental legal conceptions are sui
generis, which means that all the attempts aimed at creating a formal definition are not only
dissatisfying but also useless. Hohfeld explained how these concepts logically related to one
another through what he called “Correlatives” and “Opposites.”
Jural Correlatives
When one of these legal advantages or burdens concerning a particular subject matter, and
22
Curtis Nyquist, Teaching Wesley Hohfeld’s Theory of Legal Relations, 52 J. LEGAL EDUC. 238, 239 (2002)
23
Arvind P. Datar, Hohfeldian Analysis- Application of, by the Indian Judiciary: A lawyer’s Perspective, 18 SCC
(weekly) (Dec. 21,2012)
24
Hohfeld's Scheme of Jural Relations (Mar. 10, 2013). http://www.pravri.hr/hr/savjetovanja/jurihohfelds.pdf
Page 13
arising from a particular transaction, is observed to inhere in one person, the correlative may be
observed to inhere in some other person. The particular relation, In short comprises both
correlatives.
Rights (claim) and Duties Relation [‘You Ought’]
A right is a legal claim of one person that another person acts or omits to act in a certain way.
The position of the other person is described by saying that he has a duty. According to him, the
term “rights” is incorrectly used for denoting something that, in a certain case, might be a
privilege, a power, or immunity, and not a right in the strictest. Hohfeld himself suggested the
word “claim” as a substitute for “right”, but continued to use “right”. 25 He pointed out that clue
to right lies in duty, which is a prescriptive pattern of behavior. A claim is, therefore, simply a
sign that some person ought to behave in a certain way.
Privileges (liberty) and No-Rights Relation [‘I May’]
Just as legal rights of one person are the benefits which he derives from legal duties imposed
upon other person, so the legal liberties are the benefits which a person derives from the absence
of legal duties imposed upon him. They are the various forms assumed by the interest which I
have in doing as I please. They are the things which I may do without being prevented by the
law. The sphere of my legal liberty is that sphere of activity within which the law is content to
leave me alone. Privileges may be accompanied with rights that impose duties on other people
not to interfere. However, privileges can sometimes exist without the existence of a right.26
Powers and Liabilities Relation [‘I Can’]
Power denotes ability in a person to alter the existing legal condition, whether of oneself or of
another, for better or for worse.27 "A change in a given legal relation may result (1) from some
superadded fact or group of facts not under the volitional control of am human being (or human
beings); or (2) from some superadded fact or group of facts which are under the volitional
control of one or more human beings. As regards the second class of cases, the person (or
persons) whose volitional control is paramount may be said to have the (legal) power to effect
the particular change of legal relations.28 Examples of such are the following: the right to make
a will or to alienate property; the power of sale vested in a mortgagee etc.
Immunities and Disabilities Relation [‘You Can’t’]
25
A. K. W. Halpin , Hohfeld's Conceptions: From Eight To Two, 44 Cambridge L.J. 435 (1985).
26
Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale Law Journal 41
(1913). http://www.law.harvard.edu/faculty/cdonahue/courses/prop/mat/Hohfeld.pdf
27
e.g. covenants in restraint of trade.
28
Hohfeld's Fundamental Juristic Conceptions. 1 Hong Kong U. L.J. 46 (1926-1927)
Page 14
 The term “right” (generic term) is used in a fourth sense to mean immunity from the legal
power of some other person. Just as a power is a legal ability to change legal relations, so
immunity is an exemption from having a given relation changed by another. 29 Immunity is state
of being safe from modifications of one’s entitlements by another. The correlative of immunity
is disability. It is a lack or absence of power to change legal entitlements. For 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.

Jural Opposites

Hohfeld's concept of "opposites" conveys the message that one must have one or the other but
not both of the two opposites. For example, with regard to any class of acts one must either have
a right that others act in a certain manner or no right. Similarly, one must have either a privilege
to do certain acts or a duty not to do them.30 A privilege to do something is to be conceived as the
negation of a duty no to do it and a privilege not do something as the negation of a duty to do it
as they are Jural opposites.

Jural Contradictories

The merits of professor William’s presentation is that it is possible to discern at a glance a third
set of jural relations not mentioned by Hohfeld in his essay. The horizontal arrows read in both
ways, in one person, X, implies the absence of liberty in Y, and vice versa.

RELEVANCE OF HOHFELDIAN ANALYSIS

W. N. Hohfeld's analysis of legal rights has often been extolled as a paradigm of conceptual
clarity and rigor which anyone interested in the nature of legal rights and liberties should study.
Hohfeld explains exactly how several conceptions commonly called legal rights are related,
thereby providing a powerful tool for understanding discourse that utilizes the language of legal

SALMOND, JURISPRUDENCE, 42 (12th ed., 2008)

29

Joseph William singer, the legal rights debate in analytical jurisprudence from Bentham to Hohfeld, 1982 Wis. L.
30

Rev. 975 (1982).

Page 15
rights. But Hohfeld's analysis, though recognized and acclaimed by many legal philosophers, has
not been incorporated.31The confusion which Hohfeld attempted to review continues to persist
even today and hence his analysis can be used to improve the quality of legal discourse by saving
judges and other lawyers from conceptual errors they are otherwise prone to commit.32

5. KINDS OF LEGAL RIGHTS

Legal rights have been categorized by various jurists in different ways. Rights may generally be
categorized under the following heads:-
Perfect and Imperfect Rights
Legal rights have been variously classified. According to Salmond, a perfect right is one which
corresponds to a perfect duty. A perfect duty is one which is not merely recognized by law but
also enforced by law. In all fully developed legal systems, there are rights and duties which,
though recognized by law, are not of perfect nature. Those rights are called imperfect rights.
Examples of imperfect rights are the claims barred by the lapse of time, claims which cannot be
enforced on account of the absence of some special form of legal proof, claims against foreign
States or sovereigns, claims which cannot be enforced as they do not lie within their local limits
of the jurisdiction of the court, debts due to an executor from the estate which he administers. In
these cases, the rights and duties are imperfect as no action lies for their maintenance. An
imperfect right may be good as a ground of defence, though not good as a ground of action. An
imperfect right may become perfect. The right of action may be dormant and not nonexistent33.

Positive and Negative Rights

When a duty, which corresponds to a right, is a positive duty, that right is called a positive right.
The person on whom the duty lies shall do some positive act on behalf of the person entitled. A

31
Arvind P. Datar, Hohfeldian Analysis- Application of, by the Indian Judiciary: A lawyer’s Perspective, 21
SCC(weekly) (Dec. 21,2012)
32
Thomas D. Perry Paradigm of Philosophy: Hohfeld On Legal Rights (march 9th, 2013).
http://www.jstor.org/stable/20009647
33
V.D Mahajan, Jurisprudence & legal theory, Eastern Book Company( 5th Edn.), P.69.
Page 16
negative right corresponds to a negative duty that is a person bound shall refrain from some act,
which would operate to the prejudice of the person entitled. Positive right is a right to be
positively benefited; negative right is merely a right not to be harmed. In the case of a negative
right, others are restrained from doing something 34. The satisfaction of the positive rights results
in the betterment of the position of the owner. In case of negative rights, the position of the
owner is merely maintained as it is.

Real and Personal Rights

A real right or right in rem is a right over a res or a thing. According to Salmond, a real right
corresponds to a duty imposed upon persons in general. The right in personam or personal right
corresponds to a duty imposed upon determinate individuals. It is said that a right in rem is
available only against the whole world, while right in personam is available only against
particular persons. It is an interest protected solely against determinate individuals. In a sense, a
right in rem is a right to be left alone by other persons, that is, a right to their passive non-
interference.35

Proprietary and Personal Rights

The proprietary rights of a person include his estate, his assets and his property in many forms.
Proprietary rights have some economic and monetary value. Proprietary rights are valuable and
personal rights are not. Proprietary rights are elements of the wealth of a man. Personal rights are
merely elements of his well-being. Proprietary rights merely not merely possess judicial but also
economic importance. Personal rights possess merely judicial importance.36

Inheritable and Uninhabitable Rights

A right is inheritable if it survives its owners. It is uninhabitable if it dies with him. Proprietary
rights are inheritable but personal rights are uninhabitable. The heirs of a proprietary owner
become owners after his death. In the case of personal rights, they die with the owner and cannot
be inherited.

34
https://www.civilserviceindia.com/subject/Political-Science/notes/rights-meaning-and-theories.html
35
Friedmann W., Legal Theory (5th Edn.) P. 276
36
Dr Avtar Singh, Dr Harpreet Kaur, introduction to jurisprudence, lexis nexis Butterworths Wadhwa (3rd Edn.) P.
69
Page 17
Jus Ad Rem Or a Right to a Right

Jus ad rem is a right to a right. It is a right in personam. Eg, a contract to assign property in
future, a promise of marriage etc. Here, two rights are involved. The right, which is to be
transferred, may be either a right in rem or a right in personam, but the other right, that is a right
to a right will always be a right in personam only37.

Rights in Re Propria and Rights In Re Aliena

A right in re aliena, which is also called an encumbrance, is one which limits or derogates from
some more general rights belonging to some other person in respect of the same subject matter.
All other rights are rights in re propria. The owner of a chattel has jus in re propria or a right over
his own property. The pledge has jus in re aliena or a right over the property of someone else.
Rights in re propria are rights in one’s own property. Rights in re aliena are rights over the
property of another person.

Principal and Accessory Rights

Principal rights exist independently of other rights. Accessory rights are appurtenant to other
rights and they have a beneficial effect on principal rights. A security is accessory to the right
secured. Servitude is accessory to the ownership of the land for whose benefit it exists. The rent
and covenant of a lease is accessory to the ownership of the property by the landlord. Covenants
for title in a conveyance are accessory to the estate conveyed. A right of action is accessory to
the right for whose enforcement it is provided38.

Legal and Equitable Rights

Legal rights are those recognised by common law courts and equitable rights are those rights
recognised only in the Court of Chancery. Principles of equity evolved in English law in order to
37
Dr Avtar Singh, Dr Harpreet Kaur, introduction to jurisprudence, lexis nexis Butterworths Wadhwa (3rd Edn.) P.
69.
38
https://www.legalbites.in/rights-duties-jurisprudence/
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mitigate the rigorous of ordinary law. In spite of the fusion of law and equity by the Judicature
Act 1873, the historical distinction still survives and is relevant in some situations. When two
legal rights are found inconsistent, the first in time generally prevails. When a legal right and a
equitable right are in conflict, the legal right will prevail over the equitable right, even though
subsequent in origin, provided that the owner of the legal right acquired it for value and without
notice of prior equity.39

Vested and Contingent Rights

A vested right is a right in respect of which all events necessary to vest it completely in the
owner have happened. No other condition remains to be satisfied. In the case of a contingent
right, only some of the events necessary to vest the right in the contingent owner have happened.
According to Paton “ When all the investitive facts which are necessary to create the rights have
occurred, the right is vested; when part of the investitive facts have occurred, the rights
contingent until the happening of all facts on which the title depends”.

Primary and Secondary Rights

Primary are also called antecedent, sanctioned or enjoyment rights. Secondary rights are called
sanctioning, restitutory or remedial rights40. Examples of primary rights are the right of
reputation, the right in respect of one’s own person, the right of the owner of a guardian etc.
Secondary rights are a part of the machinery provided by the state for the redress of injury done
to primary rights.

39
J.K. Patron, The Elementary Principles of Jurisprudence, P. 48.
40
Dr Avtar Singh, Dr Harpreet Kaur, introduction to jurisprudence, Lexis Nexis Butterworths Wadhwa (3rd Ed.)
P.69- 74.
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 6. CONCLUSION

We can conclude that the standard of permitted action within a certain sphere is called rights. In
other words, a right is any action of a person which law permits. Legal rights is different from a
moral or natural right in the sense that it is recognized & protected by law, whereas the latter
may/may not be recognized & protected by law. A legal right may be distinguished from a
moral or natural right. Legal right is an interest recognized and protected by law.  In short legal
rights are legally protected interest. If any person violate the legal right it would be a legal
wrong, and for such legal wrong there is legal remedy. Legal rights are those which are
conferred by the state on certain individuals and impose corresponding duties on others. It is
enforced by the physical force of the state. It is been classified into different kinds according to
their scope by various authors.
The words commonly used to describe legal relations frequently convey multiple inconsistent
meanings. The confusion that results from this inherent weakness in the language of the law has
produced many attempts to reduce that language to terms that suggest a single idea. A most
remarkable theory of reduction was expressed in Professor Hohfeld's formulation of a logical
system of language based on fundamental legal conceptions .Hohfeld‟s theory was intended, to
“aid in the understanding and solution to practical, everyday problems of the law”. Hohfeld
claimed to have identified the eight fundamental legal conceptions, and as such to have
provided a technical apparatus for legal analysis: the atomic elements into which all legal
material can be reduced. Those fundamental legal conceptions are sui generis, which means that

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all the attempts aimed at creating a formal definition are not only dissatisfying but also useless.
Hohfeld did not only correct minor technical mistakes but he also offered a radical critique of
previous concepts of legal rights and liberties.
Hence, the hypothesis that the existence of a legal right is dependent upon the circumstance that
some human interest has secured the protection of the state is proved as legal rights are
conferred by state upon individuals and which impose corresponding duty on others. Also, legal
rights are rights protected by law and they are enforced by the physical sanction of the state.

BIBLIOGRAPHY

Books:-
1. V.D Mahajan, Jurisprudence & legal theory, Eastern Book Company( 5th Ed.)
2. Dr Avtar Singh, Dr Harpreet Kaur, introduction to jurisprudence, Lexis Nexis
Butterworths Wadhwa (3rd Ed.)
3. P J Fitzgerald, ‘salmond on jurisprudence’, Universal Publication(12th ed.)

Articles:-
1. Arvind P. Datar, Hohfeldian Analysis- Application of, by the Indian Judiciary: A
lawyer’s Perspective, 17 SCC(weekly) (Dec. 21,2012)
2. Hohfeld, Some Fundamental Legal Conception as Applied in Judicial Reasoning, (1913)
23 YALE L.J. 16.
3. Thomas D. Perry Paradigm of Philosophy: Hohfeld On Legal Rights
http://www.jstor.org/stable/20009647
4. Allen Thomas O‟Rourke, Refuge from a jurisprudence of doubt: Hohfeldian analysis of
constitutional law papers.ssrn.com/sol3/Delivery.cfm?abstractid=1358336

Websites:-
1. https://www.academia.edu/36575834/_LEGAL_RIGHTS_DUTIES_WRONGS_INTROD
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 CTION_TO_JURISPRUDENCE
2. https://shodhganga.inflibnet.ac.in/bitstream/10603/71969/3/03_chapter%201.pdf
3. https://www.civilserviceindia.com/subject/Political-Science/notes/rights-meaning-and-
theories.html
4. https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/
oxfjls4&id=8&men_tab=srchresults
5. https://www.legalbites.in/rights-duties-jurisprudence/
6. https://plato.stanford.edu/entries/legal-rights/
7. https://blog.ipleaders.in/concept-of-rights-and-duties-under-jurisprudence/
8. https://www.academia.edu/29338633/
HOHFELDS_ANALYSIS_OF_RIGHTS_AND_DUTIES

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