• Ms. Vanshika Jaiswal

Concepts of Rights and Duties in Jurisprudential Aspect

The article is about all the areas of rights and duties. In this article we are dealing with the jurisprudential aspects of rights and duties. Kinds and classification of right and duties.


Introduction:

The concept of Rights and Duties form an important part of Legal Jurisprudence. The concept has been severally elaborated by various jurists and scholars. Rights are inevitable essentials for human existence. Human beings cannot sustain without basic human rights which are naturally embodied in them by being humans. Legal systems all around the world recognize the importance of Rights. All legally permitted actions are rights whereas duty refers to no wrong. Respect to the right of the holder of such rights is the duty and thus they are correlated. These legally permitted actions find a place in the general interests of the society and hence need legal protection. In contemporary society, a broader view has been adopted in the interpretation of rights and duties and they have been recognized to serve as the ultimate purpose of the law.


In general word, it means that the action which is permitted by the law is called legal right or the act which is recognized or protected by the state is called legal right. A legal right is “that power which the man has, to make a person or persons to do or restrains from doing a certain act or acts so far as the power arises from society imposing a legal duty upon the person or persons.

The law protects the legal right of every citizen. By being a citizen of the country, the people are given the legal right. It is the duty of every individual to protect the rights of each individual. In common usage, Right means a moral or legal entitlement to have or to do something. It can also be defined as a just claim or title, whether legal, prescriptive, or moral or that which is due to anyone by just claim, legal guarantees, moral principles, etc. The popular element in these definitions is the distinguishing principle between moral and legal rights. In a legal sense, the right can be understood as a standard of permitted action by law. Such permitted action is backed by the authority of law and violation of them may invite legal sanctions. Further moral rights are based on moral reasons and virtue of righteousness. They are not backed by law but by society and may attract social admonition.


RIGHTS:

Professor Holland distinguishes legal rights from moral rights and rights. He says for might that if a man by his force or persuasion can carry out his wishes, either by his acts or by influencing the acts of others, he has the ‘might’ to do so. And about moral rights, he says, that if society or public opinion views something as correct or shows no disapproval to the wishes of a man, then he has the moral right to carry out his wishes. On legal rights, Holland opines, “irrespective of his having or not having, either the ‘might’ or ‘moral right’ on his side, the power of the state will protect him in so carrying out his wishes, and will compel such acts or forbearance on the part of other people, as may be necessary so that his wishes may be so carried out.” He states the relation of law to morality as follows: “There are certain classes of actions which affect directly and the welfare of the individual and the community. These are governed by a few simple rules which every man may know. These are the rules of morality.


Mill , whilst endorsing Bentham’s overall Utilitarian position, thought that analytically moral and legal rights were closely connected — “When we call anything a person’s right, we mean that he has a valid claim on society to protect him in the possession of it, either by the force of law or by that of education and opinion.” Those things which ought to be so protected were those which concerned the fundamentals of human well-being and were, therefore, a sub-set of those things which a person ought to have on grounds of utility. Many contemporary writers agree that the core concept of a right is something common to law and morality.


Meaning of Rights:

In general word, it means that the action which is permitted by the law is called legal right or the act which is recognized or protected by the state is called legal right. The definition is given by the number of jurists like Holland, Austin, Pollock.


According to Kelsen, the word Right has multiple uses.

  • Firstly, it is used to refer to an action that is not legally forbidden or that is legally permitted in a negative sense.

  • Secondly, it is also used to refer to the fact that an express authorization to an individual is granted by a certain organ of the community, i.e., an action permitted in a positive sense or the legal order governs the performance of a certain activity.

  • Thirdly, the term “right” is the correlation of the (active or passive) obligation of another agent.

  • Fourthly, at times it is used to designate a private right in a technical sense or right in personam to enforce the compliance of his right in front of the redressal authority.

  • Fifthly, it is also used to refer to political rights such as influencing the formation of the will of the state, to participate directly or indirectly in the making of legislation, and through representations in the form of elections or voting.

  • Finally, it also refers to the fundamental rights or liberties, commonly granted by the constitutions of modern States, which determine the content of the laws negatively and establish the procedure by which non-compliance invalidate the laws and declared as unconstitutional.


According to Salmond: A legal right is an “interest which is protected and recognized by the rule of law. It is an interest which has its duty and disregard of which is wrong”.


According to Gray: A legal right is “that power which the man has, to make a person or persons to do or restrains from doing a 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”.


In the case of State of Rajasthan Vs Union of India, the Supreme Court stated that “Legal rights in the strict sense are correlatives of legal duties and legal rights are defined as the interests which the law protects by imposing duties on other persons. But the legal right in the strict sense means right is the immunity from the legal.


Essential conditions of legal right:

According to Salmond, there are five essential conditions that need to be fulfilled:

  • The person of inheritance/ Subject of right:

He shall be the person who is the owner of the right. He is the subject of the legal right. Such a person is called a person of inheritance. Example:-Y purchase a van for Rs 20,000. Here Y is the subject of the right

power of another. Immunity is no subjection at all”.

Even in the case when the property is bequest to the unborn child, the unborn child is the owner of the property even though he is uncertain.

  • The subject of duty/ the person of incidence:

It is the duty of another person or persons to respect and recognize the right of the person. Such a person who has a legal duty is called a person of incidence. Example- If A has a legal right against B, then it is the duty of B to respect the right of A.

  • Contents or Subject Matter of legal right:

The subject matter of legal right is an essential element. It deals with the subject matter of the legal right. It is related to do something or to refrain from doing certain acts or forbearance. It obligates the person to forbear or act in favour of the person possessing a legal right. Example-Y purchase a van for Rs 20,000. Here Y is the subject of the right. The subject matter ( Y) has a legal right and he can exc

  • The object of the legal right:

The object of the legal rights is a thing or object over which the legal right is exercised. Example- A purchases the car for Rs 1,00,000. Here the car is the object.

  • Title of the legal right:

The title is the process by which the right is vested or conferred on the person. It is certain events by which right is acquired from its previous owner. Example- By purchase or gift or will etc.


Theories of Rights:

  • Will theory:

The will-theory of rights says that the right emerges from the human will. It upholds that the very objective or purpose of the law is to grant the widest possible means of self-assertion i.e. the maximum of individual self-assertion, therefore, on this notion rights are nothing but only inherent attributes of the human will. The mental attitude of the claim or demand is the historical basis of rights. Even states cannot interfere because the man is sovereign in the personal assertion of the individual’s will in the form of rights. The exponents of this theory are Pollock, Vinogradoff, Austin, Holland, and H.L.A. Hart.


The definitions of right given by Austin and Holland lay down that the “will” is the main element of a right. According to Austin, the right of a person means that others are obliged to do or forebear from doing something about him. The Austinian conception of right is based on the sovereign power of the state. Likewise, Austin defines the duty of an obligation the breach of which is punishable because of the penal sanction attached to it.


Criticisms: Duguit strongly criticizes the “will” theory as he opines that the basis of law is the objective fact of “social solidarity” and not the subjective will. The law is to protect only those acts or rights which further “social solidarity”. The idea of an individual will is anti-social. Secondly, the law respects the wills of the individuals but curtails them to the extent to which it is in conflict with the wills of the other individuals or is in conflict with the social interest in general. It is due to these reasons that Paton says that “will is an essential element in the general conception of legal right, but it is not the only element”.


  • Interest Theory:

The main proponent of this theory is Ihering; a scholar of the Sociological School of Jurisprudence which considers Law is made to serve the Social Purpose and propounded the concept of Social Engineering. In his “spirit of Roman law”. Ihering defined rights as a legally protected interest. Interests are created by the community; not by the state. The basis of a legal right interest and not will. Law always has a purpose and the purpose of the law is to protect a certain interest and not the individual wills. Salmond also supported Interest theory but added to it an element of recognition by the state. He viewed that a legal right only exists when it is recognized and protected by the state. Thus it should attract enforceability.


Roscoe Pound also believed that legal rights are essential 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 to secure a legal order.


Dr.Allen has attempted to reconcile the two theories by pointing out that the absence of legal right seems to be, not legally guaranteed power by itself nor legally protected interest by itself, but the legally guaranteed power to realize an interest. Thus, a sound theory would be to consider both the elements of “will” and “interest” as essential ingredients of a legal right.


  • Protection Theory:

All rights are granted by the state in the form of law. So, rights are the actions permitted by the state authority. Thus the most characteristic feature of a legal right is the recognition granted by a legal system and its enforceability by a legal process.


Some concepts related to Legal Rights:

  • Injuria Sine Damnum:

This Latin legal maxim refers to legal injury without damage or infringement of a legal right which calls for legal action without any damage being caused. Courts provide a remedy for the infringement of Legal Rights. The liability is imposed upon the person who violates such rights. Under the law of torts, this maxim emerged from the famous case of Ashby v. White. In this case, the defendant, a returning officer restrained a qualified voter that is the plaintiff to cast his vote for the candidate whom he wanted to win in elections. Though the candidate got elected and no damage was caused to the plaintiff as such but his legal right to vote his favorite candidate and participate in the political process got infringed. Hence the defendant was liable and this legal injury is actionable.

  • Damnum Sine Injuria:

This phrase is the reverse of the above maxim. It means damage caused without any legal injury. Thus the harm suffered is not caused due to violation of any legal right and as such, no action lies under law. Case of Gloucester Grammar School can be referred to in this regard.

  • Ubi Jus Ibi Remedium:

This Latin maxim is a general principle of law which means ‘where there is a right, there is a remedy’. The existence of a right implies the existence of a remedy for the enforcement of that right or redressal on its infringement. The law gives this remedy to protect it or damages in case of loss


Classification of legal rights:

  • Right in rem and Right in Persona

The right in rem is the right available against society at large. For Example:- a crime committed under I.P.C because it is a crime committed against the state.


Right in Persona means right that is available against an individual. Example breach of Contract. When there is a breach of contract, the party who has performed the act files the suit against the breaching party. Right in Persona is temporary in nature, which can be converted into right in rem. Right in rem is a permanent in nature.

  • Positive Rights and Negative Rights

A positive right is a right when some action needs to be done by the person who has the corresponding duty. The person on whom the duty lies must perform some positive acts.


The negative rights are the rights which omit the person from performing certain acts. Negative rights correspond to negative duty. The person on whom such duty is imposed is restrained from performing certain acts.

  • Personal and Proprietary Rights

Personal rights are the right to respect the owner of the right. The personal right has no economic value and this right is related to personal status or well being. Example : the right to live with dignity, the right to freedom of speech and expression.


The proprietary right is given in respect of the owner of the property. These rights are rights which has some monetary value or economic value and constitute the estate of the person. Example-patent rights, right to land, debt etc.

  • Perfect and Imperfect right

Perfect rights are protected and recognized by law and the suit can be instituted in the court against the wrongdoer for the breach of it. Example: A has taken the loan from B. B has the duty to pay the loan and A has the perfect right to claim the loan amount. If B fails to pay then A has the right to file the suit in the court. Perfect rights seek perfect duty whereas imperfect rights seek conditional duty. Perfect rights have direct enforcement whereas imperfect rights have indirect enforcement. “Perfect right” means the complete right i.e. the right for which there is remedy also. If a breach is made to a right of a person then if the aggrieved party has remedy left to get his right enforced is a perfect right and when in case of a breach the right is not enforceable in a court of law then it is known as “imperfect right”


Imperfect rights are those rights which are neither recognized nor protected by law. Example: if the loan becomes time-barred, then he can claim his money back but it cannot be enforced by law

  • Principal and Accessory Rights

The principal right is the most important rights. They are the basic right that is vested on an individual. Principal rights are apparent or main rights whereas accessory rights are petty rights like servitude and lease etc.


When one right is available to a person because of the existence of another right than one right is principal right and another right is an accessory right. The accessory right is the consequential or incidental right. They are not important but they are ostensible to basic right.

  • Right in Re-aliens and Right in Re-propria

Right in Re-aliena is the right available against the property of another person. Example- The right of easement. It is the result of jurisprudence concept of dominant heritage and servient heritage.


Right in Re-Propria is the right available in respect of one’s own property. It results in absolute ownership. This is the result of jurisprudence concept of ownership.


“Re” means thing; “propria” means of his own and “aliena” means of others. If a person has a right in his own thing or property he is said to have a right in “re propria” and if he has a right in the property belonging to another than he is said to have a right in re-aliena, also known as encumbrance

  • Corporeal and Incorporeal right

Both the rights are protected by law. The corporeal right is the rights over tangible objects or material objects. Corporeal rights are having the rights over the objects which can be seen, touch or perceived. Example: I purchase the watch. The watch has physical existence so I have a corporeal right over it.


The incorporeal right is the right over the object which cannot be seen or touched. Example : right to reputation.

  • Legal and Equitable Right

Legal rights are protected by the common law i.e Court of England. Common law depends upon the usage and custom.


Equitable rights are protected by the equity court or the court of chancellor. The basic principle is natural justice, equity, justice and good conscience.

  • Public and Private Rights:

The public right is the right that is exercised by the State. Example- right to vote, right to use road etc.


The private right is exercised by an individual for his personal benefit. Example: right to sleep, right to clean water. A right vested in the state is called a public right.


The state enforces such right as a representative of the subjects in the public interest. A public right is possessed by every member of the public. A private right, on the other hand, is concerned with only private individuals, that are both the parties connected with it are private persons.

  • Vested and Contingent Rights

A vested right is a right which is vested on the person from the very beginning. No events are required to take place for conferring the rights of an individual. It depends on the present situation. Vested rights are direct rights in respect of which all events essential to vest the right in the owner have happened.


In the case of Contingent rights, it depends upon the happening of condition precedent the contingent right then it will become a vested right. The former is not dependent upon the fulfilment of any condition and it creates an immediate proprietary right. Also, a vested right is inheritable and transferable, a contingent right is un-inheritable and non-transferable. Contingent rights are rights which are conferred on the happening or non-happening of certain acts. This right depends upon future acts.

  • Fundamental and legal rights:

The legal rights are protected by an ordinary law, but they can be altered or taken away be the legislature by changing that law. Fundamental Rights are protected and Guaranteed by the Constitution and they cannot be taken away by an ordinary law enacted by the legislature.


If a legal right of a person is violated, he can move to an ordinary court, but if a fundamental right is violated the Constitution provides that the affected person may move to High court or Supreme Court.


Here we should note that the Rights to Property was a fundamental right before 1978. The Constitution (Forty-fourth Amendment) Act, 1978, taken away the Right to property (Article 31) as a Fundamental Right and was made a legal right under new Article 300 A.

  • An ordinary right generally imposes a corresponding duty on another individual (and, state in some cases) but a fundamental right is a right which an individual possess against the state.

  • Fundamental rights are protected against invasion by the executive, legislature and the judiciary. All fundamental rights are limitations on legislative power. Laws and executive actions which abridge or are in conflict with such rights are void and effective.

  • Our constitution guarantees the right to move the Supreme Court for the enforcement of fundamental rights. Thus the remedy itself is a fundamental right. This distinguishes it from other rights.

  • The Supreme Court is the guardian of fundamental rights. Further, all constitution rights not fundamental rights e.g. right not to be subjected to taxation without authority of law (art. 265), right to property (art. 300a), and freedom of trade (art. 301). A fundamental right cannot be waived. An ordinary legal right can be waived by an individual which is prescribed take place then only the right will be conferred on the person.

Concept of Rights in India:

The concept of Rights has found a place in the Fundamental Rights embedded in Part III of the Constitution of India. The Farsightedness of the makers of the Constitution and the zeal of members of the Constituent Assembly resulted in the formation of an all-inclusive and comprehensive Constitution which encompassed such features from every constitution in the world and took its present form. The concept of fundamental rights was taken from the British Constitutionalism and the pioneering idea of enshrining them in a constitution was borrowed from the U.S.A.


The Fundamental Rights are perceived as basic human rights which are essential for human existence, that distinguish humans from other living beings; they exercise the authority of law and are backed by enforceability. The Judiciary of our nation guarantees the

protection of our Fundamental Rights and these rights act as a watchdog on the use of arbitrary powers of the state. These rights are negative in this sense and put an obligation over the state not to infringe on these rights of citizens by way of any law, action, order, rule, etc. Along with guaranteeing these rights, the constitution has provided remedies for the enforcement of the same in the form of Articles 32 and 226. Thus these rights can be justified against the state and put an obligation over the latter to ensure its protection.


It was held by the apex court in the case of Bandhua Mukti Morcha v. Union Of India & Others that “any member of the public acting bona fide can move the court for relief under Article 32 and also under Article 226, so that the fundamental rights may become meaningful not only for the rich and the well-to-do who have the means to approach the court but also for the large masses of people who are living a life of want and destitution and who are because of lack of awareness, assertiveness, and resources unable to seek judicial redress.


How Legal Right is Enforced:

  • Ubi jus ibi remedium which means where there is a right there is a remedy. If the person’s right is violated that can be approached to the court. They can get relief in the form of compensation. When the compensation does not satisfy the claim of the plaintiff then the court may order for the specific performance of the Contract. It is governed by the Specific Relief Act.


  • Jus Ad Rem: A right to a right is called jus ad rem. The person of inherence has a right to have some other right transferred to him. It is always a right in personam. Jus ad rem is a Latin term of the civil law, meaning "a right to a thing." It is a personal right to possession of property that usually arises from a contractual obligation (as a lease). Jus ad rem is a mere imperfect or inchoate right. It is a right exercisable by one person over a particular article of property in virtue of a contract or obligation incurred by another person in respect to it and which is enforceable only against or through such other person. The right a man has in relation to a thing; it is not the right in the thing itself, but only against the person who has contracted to deliver it. Jus ad rem is descriptive of a right without possession. On the other hand jus in re is descriptive of a right accompanied by possession. It is thus distinguished from jus in re which is a complete and absolute dominion over a thing available against all persons.


DUTIES:

When the right is given to the person then it is assumed that certain duties are also imposed on the person. The right has its correlative duties. There are two kinds of duties when it is the obligation of the person to perform his duty when he has a legal duty but in case of moral duty he has no obligation. It is on the discretion of an individual. The duties are classified into absolute and relative duty, positive and negative duty and primary and secondary duty.


According to Austin, Duties can be divided into two types:

  • Relative Duty – There is a corresponding right to such duties.

  • Absolute Duty – There is no corresponding right as such.

Austin considers the essence of a right is that it should be vested in some definite person and be enforceable by some form of legal process instituted by him against the violator.

Thus, Austin assumes that a right cannot vest in an indeterminate or a vague entity like the society or the people. The second assumption 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.


Austin stated 4 kinds of absolute duties:-

  1. Duty towards God that is not towards human beings;

  2. Duties towards indeterminate persons or the public at large, such as the duty not to commit a nuisance.

  3. Self-regarding Duties, such as the duty not to commit suicide or duty not to become intoxicated.

  4. Duty towards State or sovereign

  5. It obligates a certain person to perform certain acts or to refrain from certain acts for the sake of the others.

Duties can be characterized by:

  • · Root idea of obligation to give or serve something in return.

  • · Ought but not a must.

  • · Moral commitment to someone or something.

  • · Restriction of free will through the prescription of law.


According to Salmond:

A duty is an act which one ought to do, an act opposite of which is wrong. There are two kinds of Duties:

  1. Legal Duties: A legal duty is the one of the opposite of which is legal wrong. It is an act which is recognised by law as duty and is treated as such for the administrative justice. This kind of duty enforced by law and if enforced by law and if person fails to perform it he will be punished. Example: the duty of public servant is a legal duty.

  2. Moral Duties: An act the opposite of which is natural or moral wrong. A duty may be moral but it is not necessary that such duty must be legal duty.

If the person does not perform this duty, he will not be punished.

Example: To save water is our moral duty but it is not a legal duty.


Classification of duties

Legal duties may be classified as follows:


  • Positive and Negative duties:

When the law obliges us to do an act the duty is called positive, when the law obliges us to forbear from doing an act, the duty is called negative. If A has a right to a land, there is a corresponding duty on persons generally not to interfere with A’s exclusive use of the land. Such a duty is negative duty. If A owes a sum of money to B, the former is under a duty to pay the sum when due. This is a positive duty. In positive duties performance extinguishes both duty and right. A negative duty can never be extinguished by fulfilment.

  • Primary and Secondary Duties:

A primary duty is that which exists per se and independent of another duty. The duty not to cause personal injury to another is a primary duty. A secondary duty is one which has no independent existence but exists only for the enforcement of other duties. The duty to pay damages for the injury already done, is a secondary duty.

  • Absolute and Relative Duties:

Austin distinguished between absolute and relative duties. According to him, while every right is relative and has a correlative duty, every duty need not necessarily have a correlative right. In Austin’s opinion some duties are absolute duties to which no corresponding rights are attached. According to Austin’s analysis, there are four kinds of such duties:

  1. duties not regarding persons (those owed to God and the lower animals),

  2. duties owed to persons indefinitely (duties towards the community eg. Duty not to commit nuisance),self regarding duties (duty owed to one self eg. Duty not to commit suicide or duty not to become intoxicated.)

  3. duty towards State.

As indicated above absolute duties are those which have no corresponding or correlative rights. Relative duties are those to which there is a corresponding right in some person or definite body of persons eg. duty to pay one’s debt to the creditor.


According to Salmond, all duties are relative and there can be no absolute duties, for there must be a right in another when one is under a duty.


All these four kinds of absolute duties as mentioned by Austin are really reducible to one head – Duties towards the State. Man’s relation to God is a matter of religion and not of law. If the legal system protects certain religious duties with a sanction, then that duty is part of the law and amenable to same analysis as other legal duties. So far as duties towards animals are concerned, if the law prohibits cruelty, one may owe a duty to the State. In case of duties towards the community or the public, duty is merely the correlative of the right inhering in each member of the community. As for self-regarding duties, there cannot be a legal duty owed to oneself. The duty not to commit suicide is not a duty I owe to myself but is part of the criminal law and subject to the same analysis as any other duty imposed by the criminal law. In Austin’s view, the duties of the subjects towards the State are absolute. This argument leads to the rejection of the notion that there can be a right-duty relationship between the subject and the state. Austin maintained that when the state imposes a duty on a subject, it is a misuse of language to say that the State has a corresponding legal right. The state has physical power. The exercise of a legal right is regulated, whereas the power of the sovereign is not.


Austin’s thesis of ‘absolute duties’ is generally rejected in modern times. However, Prof. C.K.Allen supported Austin’s view. He was of the view that where the State imposes duties in virtue of its sovereign character, the duties are absolute without correlative rights in the State. For example, a State compels children to go to school, or to be vaccinated, prohibits the sale of liquor. In these cases there are no corresponding rights. According to Allen, the duties imposed by the criminal law are absolute duties.


Concept of Duties in India:

The concept of Duties as understood in India is provided under the Indian Constitution in the form of Fundamental Duties under Part IV- A. It was added by the 42nd Constitutional Amendment Act, 1976 by which Article 51- A came into existence. It prescribes 11 Fundamental duties for every citizen of India that they need to abide by. It states the foremost duty of citizens to obey the Constitution and respect its ideals and institutions, and the National Flag and National Anthem. The citizens must always uphold and protect the sovereignty and integrity of our nation, moreover, every citizen must defend the country when called for, to promote harmony and fraternity, to preserve our rich heritage and culture, to protect the environment and natural resources, to develop a spirit of humanism, strive towards excellence and opportunity of education to the children between the age of six to fourteen years should be provided by their parents or guardian. These duties through fundamentals are not enforceable in the court of law. But the legislature may embody these duties in the form of legislation and can impose fines and penalties for its non-compliance. The era of Judicial Activism and the filing of Public Interest Litigations have further contributed to the proactive role of Judiciary and citizens in recognizing and enforcing these duties.


Correlation between Rights and Duties:

  • Legal Right – These are the rights which are conferred by the law of the land to the people. Salmond defines rights as “A right or an interest recognised and protected by a rule of right. It is a right, respect for which is a duty and disregard of which is a wrong.” Rights are an indispensible unit in a society. It is something which you do or abstain yourself from doing in order to favour some other person’s right.

  • Legal Duty – It is termed as an obligation which arises out of some law. These are the responsibilities which ask us to act according to law.


Correlation of rights and duties has always been a debatable topic. There are different theories propounded by different scholars.


The two most important views regarding whether the rights and duties are correlated or not are Salmond’s view and Austin’s view.


According to Salmond “no right can exist without any corresponding duty and vice versa.” He believed that every duty which is being performed is in respect of a correlated right attached to it.


On the Contrary what austin has to say is that all the types of duties are not similar and they are divided between relative and absolute duty. Relative duties are the one which have corresponding rights whereas Absolute duties are the one which are independent and have no rights correlated to them. For example not to commit suicide, is one of your absolute duty, there is no corresponding right here.


According to Austin there are a bunch of duties which fall under absolute duties. Such as duties to self, duties to sovereign etc. These are certain duties which are to be followed and have no corresponding relations with rights. But austin’s view has been criticized a lot lately. Salmond has concluded that duties towards self becomes part of criminal law and thus becomes legal duty and duties to sovereign/state are always corresponding to the rights which are granted to us by the states.


And The most accepted view regarding rights and duties over the time is that they are necessarily correlative. They are the two most inevitable components existing together in present day society.

  • As we can describe a right as a power or privilege conferred by law which people enjoy and on the other hand duty is a burden imposed by law which commands obligeance for the good of society. And in order to enjoy a right properly there is a need for other people to consider and respect it. Hence in this way we can say that enjoyment of right by one person grants duty on another person to respect it. Thus they work in corollary. They act as two phases of a single coin. For example if the state has guaranteed right to life, the

  • Rights act as an interest and legal rights become legal interests and these legal interests are backed by law and in this case a duty is imparted on law to protect these rights.

  • The state guarantees certain rights to all of its individuals to promote welfare of the society and protection of such rights is the state’s duty. Also when state is guaranteeing rights it becomes a corresponding duty of the citizens to respect the state and do not create hindrance in the functioning of state. It becomes an individual’s duty to serve the state in his whole capacity.


Thus in different forms Rights and Duties are correlated. To define the correlativity, Professor Laski has created a four fold connection between Rights and Duties.

  1. My rights implies your duty: Individuals have their rights given to them and these rights involve corresponding duties from others. For instance, if I have the right to life then every other individual is duty bound to protect my life. Another example is that I have the right to live in a safe and clean environment and every other person has a duty to respect that right of me.

  2. My right imply my duty to admit a similar Right of others: The way others are duty bound to respect and protect my rights. I am also duty bound to do the same for others because others also have the same rights.

  3. Rights should be exercised to promote better good: The way of exercising my rights should be in a way that it does not violate the laws and conventions of the society. Thus it becomes the duty of an individual towards the entire society. For example my right to practice religion freely cannot be used by me to incite communal hatred.

  4. State has guaranteed us rights, so we have duty towards state too: The individuals are ultimately under the duty to protect and respect the interests of the state as the state is the agency which has provided all the rights to the individuals.

Thus from the entire analysis that we have done in this article we can conclusively say that both rights and duties always go hand in hand and it is impossible to exist in a society where they cannot coexist. Thus, correlation of rights and duties is a very important for holistic and entire development in any society.

Conclusion

We can conclude that rights and duties are co-existent. In the words of Salmond, it can be said that no right exists without the corresponding duty. Every duty of the person must be the duty towards some person, in whom the right is vested and conversely every right must be against some persons upon whom a duty is imposed. Thus the concept of rights and duties holds an important place in every legal system of the world. Without the existence of rights and duties, the citizens have no more than an animal existence. Merely granting of rights and duties by the state holds no good until and unless they are backed by the rule of law that is legal protection is granted to them and they are enforceable in the courts of law. The concept and coverage of rights and duties have been broadened in modern times and even the rights of non-humans are recognized. Various trends have been visible in the jurisprudence and application of these rights and duties and the courts have been adaptive to the changing needs of the society.





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