What are the main theories of Legal Rights ? Explain in brief.


Q. 18 (e). What are the main theories of Legal Rights ? Explain in brief.

Ans. Theories of Legal Rights —There are following three main theories of legal rights-

1. Protection Theory of Rights —It is to be noted that the source of all legal right is Law. It is a fact that it is only law which creates, protects and recognises the rights so created. Thus, one of the characteristic feature of a legal right is its recognition. It is recognised by a legal system and is enforced by a legal process. In other words, the essential condition of a legal right is its recognition and enforcement by law only. It is so because the rights that are recognised by the rules of morality, cannot be enforced. However, this theory is subject to certain qualifications-

(i) The law will not always enforce a right, but grant the injured party damages by way of remedy. Thus, For Example—where it is not possible for me Court to grant a specific performance of a contract, it will award damages to the injured party.

(ii) Some times law itself creates a disability in so far as the enforcement of a legal right is concerned. Thus, For Example—a time barred debt cannot be enforced in any Court of law. According to Paton, such rights may be termed to be imperfect rights which law recognises but not enforce directly. It is not that a time barred debt is without any legal significance. A promise made for the payment of time barred debt is a good Promise.

(iii) Sometimes a legal system lacs machinery for the enforcement of its decisions. Thus, in International law there is no power in the Court to enforce its decrees. In view of the above difficulties it would be better to define a legal right in terms of recognition and protection by the legal order.

2. Will Theory of Right —Will theory is upheld by many on the ground that the very purpose of the law is to grant the widest possible means of self-expression-the maximum of individual self-assertion. To the advocates of this theory, “rights, therefore, are inherent attribute of human will.” The right to self-expression and self-assertion is a part of individual’s freedom which is inseparable of man and his individuality.

Man would be reduced to a commodity in the absence of such natural freedom and liberty. All rights are, therefore, supported to be derived from the intrinsic and inviolable human will which is essential for the development of man and his liberty against the arbitrary acts of other individuals and state. Will theory was extended by the doctrine of natural rights, which declared that there were certain spehres of personal life with which the state could not legally interfere.

Supporters of this theory are Hegal, Kant, Locke and Hume. To them an individual’s right expresses his self-assertion or will. Thus, the right is an attribute of human will. Supporters of will theory lay more stress on the fact that in the field human will has played a great role. All rights are the products of will. There can be no right without will. In other words, we can say that where there is no will there is no right at all.

Duguit has criticized that will is not an essential element in law or in the right which flows from it, for the real basis of law lies in the objective lact of ‘social solidarity’. He says that there is over emphasis on the right of the individual rather than on his obligations. He calls this theory of subjective right as a mere physical abstraction.

It must, however, be remembered that will is the `mam spring’ of a man’s personality and for law to attempt to create any system by ignoring it, would be meaningless. “The aim of the law is not primarily to create a new life for society and new desires for men, but rather to regulate such life and such desires as already exist.” Will may be an essential element in the conception of legal right.

3. Interest Theory of Right —There are some jurists who say, that fundamental basis of right is an “interest” and not They argue, that a person may not have a will but still he has rights. Thus, “a baby of one day old, and irrational idiot, a corporation or a foundation” cannot be said to have a will, but in law they have right. What a right protects is not a will or choice, but some interest for the benefit of the person who holds the right. Ihering, advocated the “jurisprudence of realities”, and said that it should be based on practical needs and not merely on logical deduction as in the case of analytical positivism. He insisted upon interest which legal system secures rather than upon the right. According to him, rights are means for securing interest.

The “essence of the legal right”, says C.K. Allen, “Seems to me to be not legally guaranteed power by itself, nor legally protected interest by itself, but the legally guaranteed power to realize an interest.” A “right is the will-power of man applied to a utility or interest recognised and protected by a legal system.” A human will does not operate in vacuum but it desires certain ends “and interests are but objects of human desire.” Then, a natural question arises for consideration as to what are interests ? An interest may be said to be “a claim or want of an individual or group of individuals which that individual or group wishes to satisfy” in society through a continuous process of adjustment and change with the chang-ing objects, goals and values of each society.