{"id":1696,"date":"2016-12-18T19:17:19","date_gmt":"2016-12-18T13:47:19","guid":{"rendered":"http:\/\/www.infipark.com\/articles\/?p=1696"},"modified":"2024-01-08T15:12:30","modified_gmt":"2024-01-08T09:42:30","slug":"define-legal-right-explain-essential-elements","status":"publish","type":"post","link":"https:\/\/www.infipark.com\/articles\/define-legal-right-explain-essential-elements\/","title":{"rendered":"Define Legal Right and explain its essential elements."},"content":{"rendered":"\n

Define Legal Right and explain its essential elements. <\/strong><\/h2>\n\n\n\n

Ans. Definition of Legal Right\u2014<\/strong>The different jurists have defined legal right in different ways \u2014<\/p>\n\n\n\n

1. According to Holland, “A right is the capacity residing in one man of controlling, with the assent and assistance of the state the actions of others.”<\/strong><\/p>\n\n\n\n

2. According to Austin, “Right is a faculty which resides in a determinate parly or parties by virtue of a given law and which avails against a party or parties other than the party or parties in whom it resides.”<\/strong><\/p>\n\n\n\n

3. According to Ihering, “Right is a legally protected interest.”<\/strong><\/p>\n\n\n\n

4. According to Salmond, “A right is an interest recognised and protected by a rule of right.” <\/strong>It is an interest respect of which is a duty and disregard of which is a wrong. Paton also agrees taat one of the essential conditions of a legal right is that it should be enforceable by the legal process of the State. He, however, says that there are three exceptions to this rule \u2014<\/p>\n\n\n\n

(i) It is not necessary that the state should always necessarily enforce all the legal rights. There may be cases when instead of enforcing a right, the state may redress the wrong by; getting compensation paid to the injured party.<\/p>\n\n\n\n

(ii) There are certain rights which recognised by law but not en-forced by it. For Example \u2014In a time-barred debt, the right of the creditor to recover the debt is an “imperfect right”.<\/strong><\/p>\n\n\n\n

(iii) There are certain laws which do not confer, right of enforcement to the courts, therefore, their enforcement is not possible although they are recognised by law e.g., International Court of Justice has no power to compel enforcement of its decrees under the International Law.<\/p>\n\n\n\n\n\n\n\n

Elements of a Legal Right\u2014<\/b>According to Salmond every legal right has the following five elements or characteristics-<\/p>\n\n\n\n

1. The Person of Inherence\u2014<\/b>A legal right is always vested in a person who may be distinguished as the subject of ‘right’ known as person of inherence.<\/p>\n\n\n\n

2. The Person of Incidence\u2014 <\/b>It avails against a person upon whom lies the co-relative duty. He is recognised as the subject of the duty known as the person of incidence.<\/p>\n\n\n\n

3. Contents of the Right\u2014<\/b>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.<\/p>\n\n\n\n

4. Subject-matter of Right\u2014<\/b>It is something to which the act or omission relates that is the thing over which a right is exercised which is called the object or subject-matter of right.<\/p>\n\n\n\n

5. Title of the Right-<\/b>Every legal right has a title, i.e., certain facts or events by reason of which the right has become vested in its owner. Salmond illustrates above elements of a legal right by citing an example i.e., if A buys a piece of land from B. A is the subject or owner of the right so required. The person bound by the co-relative duty are per-sons in general because a right of this kind avails against the world at large. The contents of rights consists in non-interference with the purchaser’s exclusive use of the land. The object or the subject-matter of right is the conveyance by which it was acquired from the former owner.<\/p>\n\n\n\n\n\n\n\n

Rights and Duties are Co-relative-<\/b>Almost all the jurists agree on the point that rights and duties are necessarily co-relative with each other in such a way that one cannot exists without the other. In other words, the existence of the one depends on the existence of the other as there can be no child without a father and no father without a child. A right is always against someone upon whom the correlative duty is imposed. In the same way a duty is always towards someone in whom the correlative right vests. There are some jurists who do not agree to this view. Austin is one of them. He says that the duties may be divided into two kinds i.e., (i) Absolute, and (ii) Relative.<\/p>\n\n\n\n

Again, Austin says that absolute duties are duties without a corresponding right. The duties which arc always correlated with a right are called ‘relative duties’.<\/strong> According to Austin, there are four kinds of ‘absolute duties’<\/strong><\/p>\n\n\n\n

1. Duties not regarding person (i.e., those owed to God and the lower animals).<\/p>\n\n\n\n

2. Duties owed to persons indefinitely (i.e., towards the community).<\/p>\n\n\n\n

3. Self-regarding duties.<\/p>\n\n\n\n

4. Duties owed to the sovereign.<\/p>\n\n\n\n

The absolute duties enumerated by Austin are not duties in the legal sense, or if they are duties at all, they are not absolute. The duty towards God is not a legal duty if it is not embodied in some statute. If it is embodied in a statute then it is the duty towards the state and not towards God. Certain duties imposed on individuals towards animals are in essence the duties towards the state or the owner of the animal and not towards the animal itself. The duties towards the community in general is nothing more than a bundle of duties towards each particular individual of the community and each individual has got a correlative right. Self-regarding duties are also the duties towards the state because it is a part of the criminal law as an attempt to commit suicide.<\/p>\n\n\n\n

So far as the fourth class of absolute duties, e.g., ‘duties owed to the sovereign’ are concerned, they are based on his definition of law and his theory about state and sovereignty. If we regard the relationship between the state and the individual as the right-duty relationship where is this political superior ? In recognising any other political superior, Austin’s definition of the sovereign would be exploded. The sovereign has the power to change the law at any time. Therefore, the relationship between the state and the citizen cannot be termed as right-duty relationship.<\/p>\n\n\n\n

Thus, the view taken by Austin is not a correct one. Though it is admitted that the relationship between the state and the citizen does not stand on the same footing as the relationship between a citizen and a citizen, it depends more on the nature of the state than on anything else. In democratic countries, a citizen has rights against the state.<\/p>\n","protected":false},"excerpt":{"rendered":"

Define Legal Right and explain its essential elements.  Ans. Definition of Legal Right\u2014The different jurists have defined legal right in different ways \u2014 1. According to Holland, “A right is the capacity residing in one man of controlling, with the assent and assistance of the state the actions of others.” 2. According to Austin, “Right […]<\/p>\n","protected":false},"author":7,"featured_media":1802,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[44],"tags":[],"class_list":["post-1696","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-jurisprudence-2"],"_links":{"self":[{"href":"https:\/\/www.infipark.com\/articles\/wp-json\/wp\/v2\/posts\/1696","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.infipark.com\/articles\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.infipark.com\/articles\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.infipark.com\/articles\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/www.infipark.com\/articles\/wp-json\/wp\/v2\/comments?post=1696"}],"version-history":[{"count":8,"href":"https:\/\/www.infipark.com\/articles\/wp-json\/wp\/v2\/posts\/1696\/revisions"}],"predecessor-version":[{"id":9024,"href":"https:\/\/www.infipark.com\/articles\/wp-json\/wp\/v2\/posts\/1696\/revisions\/9024"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.infipark.com\/articles\/wp-json\/wp\/v2\/media\/1802"}],"wp:attachment":[{"href":"https:\/\/www.infipark.com\/articles\/wp-json\/wp\/v2\/media?parent=1696"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.infipark.com\/articles\/wp-json\/wp\/v2\/categories?post=1696"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.infipark.com\/articles\/wp-json\/wp\/v2\/tags?post=1696"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}