Legal Concepts
Legal Rights
and Duties
Legal rights
are, clearly, rights which exist under the rules of legal systems or by virtue
of decisions of suitably authoritative bodies within them[1].
According to
positivists, legal rights are essentially those interests which have been
legally recognized and protected. John Austin made a distinction between legal
rights and other types of rights such as Natural rights or Moral rights. By
legal rights, he meant rights which are creatures of law, strictly or
simply so called. He said that other kind of rights are not armed with
legal sanction and cannot be enforced judicially.
On the other
hand, Salmond said that a legal right is an interest recognized and protected
by rule of law and violation of such an interest would be a legal wrong.
Salmond further said that:
1. A legal duty
is an act that obliges to do something and act, the opposite of which would be
a legal wrong.
2. Whenever law
ascribes duty to a person, a corresponding right also exists with the person on
whom the duty is imposed.
3. There are two
kinds of duties: Moral Duty and Legal Duty.
4. Rights are
said to be the benefits secured for persons by rules regulating relationships.
Salmond also believed
that no right can exist without a corresponding duty. Every right or duty
involves a bond of 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.
This is also
called as vinculum juris which means “a bond of the law”.
It is a tie that legally binds one person to another[2].
On the other
hand, Austin said that Duties can be of two types:
a. Relative
Duty – There is a corresponding right existing in such duties.
b. Absolute
Duty – There is no corresponding right existing.
Austin conceives
this distinction to be the essence of a right that it should be vested in some
determinate person and be enforceable by some form of legal process instituted
by him. Austin thus starts from the assumption that a right cannot vest in an
indeterminate, or a vague entity like the society or the people. The second
assumption with which Austin starts is that sovereign creates rights and can
impose or change these rights at its will. Consequently, the sovereign cannot
be the holder of such rights.
According to
Salmond, there are five important characteristics of a Legal Right[3]:
1. 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.
2. It avails
against a person, upon whom lies the correlative duty. He may be distinguished
as the person bound, or as the subject of duty, or as the person of incidence.
3. It obliges
the person bound to an act or omission in favour of the person entitled. This
may be termed the content of the right.
4. The act or
omission relates to something (in the widest sense of that word), which may be
termed the object or subject matter of the right.
5. Every legal
right has a title, that is to say, certain facts or events by reason of which
the right has become vested in its owner.
Some jurists
hold that a right may not necessarily have a correlative duty. They say that
legal rights are legal concepts and these legal concepts have their
correlatives which may not necessarily be a duty.
Roscoe Pound
also gave an analysis of such legal conceptions. He believed that legal rights
are essentially 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 in order to secure a legal order.
Hohfeld’s System of
Fundamental Legal Concepts or Jural Relations
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1
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2
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3
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4
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Jural
Opposites
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Right
–
No Right
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Privilege
–
Duty
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Power
–
Disability
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Immunity
–
Liability
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Jural
Correlatives
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Right
–
Duty
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Privilege
–
No Right
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Power
–
Liability
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Immunity
–
Disability
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Jural
Correlatives represent the presence of in another. Thus, right is the presence
of duty in another and liability is the presence of power in another.
Jural Opposites
represent the absence of in oneself. Thus, no right is the absence of right in
oneself and disability is the absence of power in oneself.
Conclusion
derived from Hohfeld’s System
a. As a person’s
right is an expression of a wish that the other person against whom the right
or claim is expressed has a duty to obey his right or claim.
b. A person’s
freedom is an expression of a right that he may do something against other
person to change his legal position.
c. A person’s
power is an expression of a right that he can alter other person’s legal position.
d. A person’s
disability is an expression of a wish that another person must not alter the
person’s legal position.
Salmond on
Rights and Duties
Salmond said
that a perfect right is one which corresponds to a perfect duty and a perfect
duty is one which is not merely recognized by law but also enforced by law. In
a fully developed legal system, there are rights and duties which though
recognized by law are not perfect in nature. The rights and duties are
important but no action is taken for enforcing these rights and duties. The
rights form a good ground for defence but duties do not form a good ground for
action. However, in some cases, an imperfect right is sufficient to enforce
equity.
Salmond gave
following classifications of rights.
1.
Positive and Negative Rights
2.
Real and Personal Rights
3. Right
in rem and right in personam
4.
Proprietary and Personal Rights
5.
Inheritable and Uninheritable Rights
Salmond’s Classification of
Positive and Negative Rights
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Positive Rights
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Negative Rights
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1
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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.
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Negative rights have negative duties corresponding
to them and enjoyment is complete unless interference takes place. Therefore,
majority of negative rights are against the entire world.
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2
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In the case of positive rights, the person subject to the duty is
bound to do something.
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Whereas, in case of negative rights, others are restrained to do
something.
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3
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The satisfaction of a positive right results in
the betterment of the position of the owner.
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Whereas in case of a negative right, the position
of the owner is maintained as it is.
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4
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In case of positive rights, the relation between subject and object
is mediate and object is attained with the help of others.
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Whereas in case of negative rights, the relation is immediate, there
is no necessity of outside help. All that is required is that others should
refrain from interfering case of negative rights.
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5
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In case of positive rights, a duty is imposed on
one or few individuals.
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In case of negative rights, the duty is imposed on
a large number of persons.
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Salmond’s Classification of
Real and Personal Rights
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Real Rights
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Personal Rights
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1
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A
real right corresponds to a duty imposed upon persons in general.
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A
personal right corresponds to a duty imposed upon determinate individuals.
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2
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A real right is
available against the whole world.
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A personal right
is available only against a particular person.
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3
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All
real rights are negative rights. Therefore, a real right is nothing more than
a right to be left alone by others. It is merely a right to their passive
non-interference.
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Most
personal rights are positive rights although in a few exceptional cases they
are negative.
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In real right, the
relation is to a thing. Real rights are derived from some special relation to
the object.
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In personal right,
it is the relation to other persons who owe the duties which is important.
Personal rights are derived from special relation to the individual or
individuals under the duty.
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4
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Real
rights are right in rem.
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Personal
rights are right in personam.
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Salmond’s Classification of Right
in rem and Right in personam
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Right in rem
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Right in personam
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1
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It is derived from the Roman term ‘actio in
rem’. An action in rem was an action for the recovery of dominium.
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It is derived from the Roman term ‘action in
personam’. An action in personam was one for the enforcement of obligato
i.e. obligation.
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2
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The right protected by an action in rem came to be called jus
in rem.
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A right protected by action in personam came to be called as jus
in personam.
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3
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Jus in rem means a right against or in respect of a thing.
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Jus in personam means a right against or in respect of a
person.
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4
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A right in rem is available against the whole world.
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A right in personam is available against a particular
individual only.
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Salmond’s Classification of
Proprietary and Personal Rights
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Proprietary Rights
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Personal Rights
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1
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Proprietary rights means a person’s right in
relation to his own property. Proprietary rights have some economic or
monetary value.
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Personal rights are rights arising out of any
contractual obligation or rights that relate to status.
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2
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Proprietary rights are valuable.
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Personal rights are not valuable.
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3
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Proprietary rights are not residual in character.
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Personal rights are the residuary rights which
remain after proprietary rights have been subtracted.
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4
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Proprietary rights are transferable.
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Personal rights are not transferable.
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5
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Proprietary rights are the elements of wealth for
man.
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Personal rights are merely elements of his
well-being.
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6
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Proprietary rights possess not merely judicial but also economic
importance.
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Personal rights possess merely judicial importance.
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Salmond’s Classification of
Inheritable and Uninheritable Rights
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Inheritable Rights
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Uninheritable Rights
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A right is inheritable if it
survives the owner.
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A right is uninheritable if it
dies with the owner.
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Ownership
Salmond on Ownership
Ownership
denotes the relationship between a person and an object forming the
subject-matter of his ownership. It consists in a complex of rights, all of
which are rights in rem, being good against the entire world and not merely
against specific persons[4].
Incidence of
Ownership
1. The owner has
the right to possess things that he owns.
2. The owner
normally has a right to use or enjoy the thing owned, the right to manage it,
the right to decide how it shall be used and the right of income from it.
However, Right to possess is not a right strictu sensu because such
rights are in fact liberties as the owner has no duty towards others and he can
use it in any way he likes and nobody can interfere with the enjoyment of his
ownership.
3. The owner has
the right to consume, destroy or alienate the things. The right to consume and
destroy are again straight forward liberties. The right to alienate i.e. the
right to transfer the existing rights involves the existence of power.
4. Ownership has
the characteristic of being ‘indeterminate in duration’ and Ownership
has a residuary character. Salmond contrasted the rights of the owner
with the lesser rights of the possessor and encumbrancer by stating that “the
owner's rights are indeterminate and residuary in a way in which these other
rights are not”.
Austin’s
Concept of Ownership
Ownership or
Property may be described accurately enough, in the following manner: ‘the
right to use or deal with some given subject, in a manner, or to an extent,
which, though is not unlimited, is indefinite’.
Now in this
description it is necessarily implied, that the law will protect or relieve the
owner against every disturbance of his right on the part of any other
person. Changing the expression, all
other persons are bound to forbear from acts which would prevent or
hinder the enjoyment or exercise of the right.
Austin further
said that “Ownership or Property, is, therefore, a species of Jus in rem.
For ownership is a right residing in a person, over or to a person or thing,
and availing against other persons universally or generally. It is a right
implying and exclusively resting upon obligations which are at once universal
and negative”.
Dias on
Ownership
After referring
to the views of Salmond and other Jurists, Dias came to the conclusion that a
person is owner of a thing when his interest will outlast the interests of
other persons in the same thing. This is substantially the conclusion
reached by many modern writers, who have variously described ownership as the
‘residuary’, the ‘ultimate’, or ‘the most enduring interest’.
According to
Dias, an owner may be divested of his claims, etc., to such an extent that he
may be left with no immediate practical benefit. He remains owner
nonetheless. This is because his interest in the thing, which is ownership,
will outlast that of other persons, or if he is not presently exercising any of
his claims, etc., these will revive as soon as those vested in other persons
have come to an end.
In the case of
land and chattels, if the owner is not in possession, ownership amounts to a
better right to obtain the possession than that of the defendant. It is
'better' in that it lasts longer. It is apparent that the above view of Dias
substantially agrees with that of Salmond. According to Dias it is the outlasting
interest and according to Salmond, ownership has the characteristic of being
indeterminate in duration and residuary in nature[5].
Types of Ownership
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Corporeal Ownership
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Incorporeal Ownership
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1. Corporeal Ownership signifies ownership in a physical object.
2. Corporeal things are things which can be perceived by senses.
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1. Incorporeal Ownership is a right or an interest.
2. Incorporeal things cannot be perceived by senses and are in tangible.
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Sole Ownership
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Co-Ownership
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When an individual owns, it is sole ownership
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When there is more than one person who owns the property
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Trust Ownership
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Beneficial Ownership
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1. There is no co-ownership.
2. The person on whom the responsibility lies for the benefit of the
others is called the Trustee.
3. The trustee has no right to the beneficial enjoyment of the property.
4. Ownership is limited. A trustee is merely an agent upon whom the law
has conferred the duty of administration of property.
5. Trusteeship may change hands.
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1. There can be co-ownership.
2. The person for whom the trust is created is called the Beneficiary.
3. The Beneficiary has the full rights to enjoy the property.
4. Ownership is complete.
5. Beneficial Owners remain the same.
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Legal Ownership
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Equitable Ownership
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Legal ownership is that ownership which has its basis in common law.
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Equitable ownership comes from equity divergence of common law. Thus,
distinction between legal and equitable ownership is very thin.
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Vested Ownership
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Contingent Ownership
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1. Ownership is vested when the title is perfect.
2. Vested ownership is absolute.
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1. Ownership is contingent when it is capable of being perfect after
fulfilment of certain condition.
2. Contingent ownership becomes vested when the conditions are
fulfilled.
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Absolute Ownership
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Limited Ownership
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Ownership is absolute when possession, enjoyment, disposal are complete
and vested without restrictions save as restriction imposed by law.
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Limited Ownership is subjected to the limitations of use, disposal or
duration.
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Possession
Salmond on Possession
Salmond said that in the whole of legal theory there is no conception more
difficult than that of possession. The legal consequences which flow from the
acquisition and loss of possession are many and serious. Possession, for
example, is evidence of ownership; the possessor of a thing is presumed to be
the owner of it, and may put all other claimants to proof of their title. The
transfer of possession is one of the chief methods of transferring ownership.
Salmond also said that possession is of such efficacy that a possessor may
in many cases confer a good title on another, even though he has none himself.
He also made a distinction between possession in fact and possession in
law.
1. Possession may and usually does exist both in fact and in law. The law
recognizes as possession all that is such in fact, and nothing that is not such
in fact, unless there is some special reason to the contrary.
2. Possession may exist in fact but not in law. Thus the possession by a
servant of his master’s property is for some purposes not recognized as such by
the law, and he is then said to have detention or custody rather than
possession.
3. Possession may exist in law but not in fact; that is to say, for some
special reason the law attributed the advantages and results of possession to
someone who as a matter of fact does not possess. The possession thus
fictitiously attributed to him is termed constructive.
In Roman law, possession in fact is called possessio naturalis, and
possession in law as possessio civilis.
Corporeal and Incorporeal Possession
Corporeal Possession is the possession of a material object and Incorporeal
Possession is the possession of anything other than a material object.
Corporeal possession is termed in Roman law possessio corporis.
Incorporeal possession is distinguished as possessio juris, the
possession of a right, just as incorporeal ownership is the ownership of a
right.
Salmond further said that “corporeal possession is clearly some form of
continuing relation between a person and a material object. It is equally clear
that it is a relation of fact and not one of right”.
What, then, is the exact nature of that continuing de facto relation
between a person and a thing, which is known as possession?
According to Salmond, the possession of a material object is the
continuing exercise of a claim to the exclusive use of it.
It involves two distinct elements, one of which is mental or subjective,
the other physical or objective.
The mental element comprises of the intention of the possessor with respect
to the thing possessed, while the physical element comprises of the external
facts in which this intention has realised, embodied, or fulfilled itself.
The Romans called the mental element as animus and the subject
element as corpus. The mental or subjective element is also called as
animus possidendi, animus sibi habendi, or animus domini.
The Animus Possidendi - The
intent necessary to constitute possession is the intent to appropriate to
oneself the exclusive use of the thing possessed. It is an exclusive claim to a
material object. Salmond made following observations in this regard.
1. It is not necessarily a claim of right.
2. The claim of the possessor must be exclusive.
3. The animus possidendi need not amount to a claim of intent to use
the thing as owner.
4. The animus possidendi need not be a claim on one’s own behalf.
5. The animus possidendi need not be specific, but may be merely
general. It does not necessarily involve any continuous or present knowledge of
the particular thing possessed or of the possessor’s relation to it.
The Corpus Possessionis – The claim
of the possessor must be effectively realized in the facts; that is to say, it
must be actually and continuously exercised. The corpus possessionis
consists in nothing more than the continuing exclusion of alien interference,
coupled with ability to use the thing oneself at will. Actual use of it is not
essential.
Immediate and Mediate Possession
The possession held by one man through another may be termed mediate,
while that which is acquired or retained directly or personally may be
distinguished as immediate or direct.
There are three kinds of Mediate Possession:
1. Possession that is acquired through an agent or servant who claims no
interest of his own.
2. The direct possession is in one who holds both on the actual possessor’s
account and on his own, but who recognizes the actual possessor’s superior
right to obtain from him the direct possession whenever he choose to demand it.
3. The immediate possession is in a person who claims it for himself until
some time has elapsed or some condition has been fulfilled, but who
acknowledges the title of another for whom he holds the thing, and to whom he
is prepared to deliver it when his own temporary claim has come to an end.
Concurrent or Duplicate Possession
1. Mediate and Immediate Possession co-exist in respect of the same thing
as already explained above.
2. Two or more persons may possess the same thing in common, just as they
may own it in common. This also called as compossessio.
3. Corporeal and Incorporeal Possession may co-exist in respect of the same
material object, just as corporeal and incorporeal ownership may.
Incorporeal Possession
In Incorporeal Possession as well, the same two elements required, namely
the animus and the corpus. In the case of incorporeal things,
continuing non-use is inconsistent with possession, though in the case of
corporeal things it is consistent with it.
Incorporeal possession is commonly called the possession of a right, and
corporeal possession is distinguished from it as the possession of a thing. The
distinction between corporeal and incorporeal possession is clearly analogous
to that between corporeal and incorporeal ownership.
Corporeal possession, like corporeal ownership, is that of a thing; while
incorporeal possession, like incorporeal ownership, is that of a right. In
essence, therefore, the two forms of possession are identical, just as the two
forms of ownership are.
Hence, Possession in its full compass and generic application means the
continuing exercise of any claim or right.
Paton on Possession
Paton said that even though Possession is a concept of law still it lacks a
uniform approach by the jurists. Some jurists make a distinction between legal
and lawful possession. Possession of a thief is legal, but not lawful. In some
cases, where possession in the popular sense is meant, it is easy to use some
such term as physical control. Possession is also regarded as prima facie
evidence of Ownership.
According to Paton, for English law there is no need to talk of mediate and
immediate possession. The Bailee and the tenant clearly have full possession:
Salmond's analysis may he necessary for some other systems of law, but it is
not needed in English law.
Oliver Wendell Holmes and Von Savigny on Possesion
Savigny with other German thinkers (including Kant and Hegel) argued that possession,
in the eyes of the law, requires that the person claiming possession intend to
hold the property in question as an owner rather than recognize the superior
title of another person, so that in providing possessory remedies to lessees,
Bailees, and others who lack such intentions, modem law sacrifices principle
to convenience.
To this Holmes responded that he “cannot see what is left of a principle
which avows itself inconsistent with convenience and the actual course of
legislation. The first call of a theory of law is that it should fit the facts.
It must explain the observed course of legislation. And as it is pretty certain
that men will make laws which seem to them convenient without troubling
themselves very much what principles are encountered by their legislation, a
principle which defies convenience is likely to wait some time before it finds
itself permanently realized[6].”
Holmes also criticised Savigny and other German theorists by saying that
“they have known no other system than the Roman”. In his works, Holmes proved
that the Anglo-American Law of Possession derived not from Roman law, but
rather from pre-Roman German law.
One of Holmes's criticisms of the German theorists, signally including
Savigny, is that they "have known no other system than the Roman, ' .6 and
he sets out to prove that the Anglo-American law of possession derives not from
Roman law, but rather from pre- Roman German law.
Complete List of Jurisprudence Notes
5. Jurisprudence- Legal Concepts
6. Jurisprudence- Theories of Juristic Personality
7. Jurisprudence- School of Thoughts
6. Jurisprudence- Theories of Juristic Personality
7. Jurisprudence- School of Thoughts
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