INTRODUCTION:

Right generally means an interest or facility or a privilege or immunity or a freedom. In this way
right for the purpose of jurisprudence is called legal right. Austin in his theory has separated the
subject matter of jurisprudence from morality or materiality. He gave the concept of positive
law. So here also right means positive law right only, which is term of legal right. Legal right is
recognised by law. It is different from moral right. Moral right if violated is called moral wrong.
The violatin of natural right is called natural wrong. But these wrongs are not remedial under
law while if a legal right is violated then it will be legal wrong which is remedial under law. The
different jurists have defined legal right in different ways:According to Austin : Right is a faculty which resides in a determinate party 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.
According to Salmond :- Right is an interest recognised and protected by the rule of right.
Here rule of right means rule of law or law of country. When an interest of a person is protected
by the rule of law then it is called right. Salmond definition involves two points, firstly that right
is an interest and secondly it is protected by rule of right. It means that it relates to his (person)
interest i.e., life liberty, heath and reputation etc. Grey has criticised the interest theory
propounded by Salmond, Ihering and Heck and he has supported the view that right is not an
interest but that means by which the interest is secured.
According to Holland, right is as a capacity residing in one man of controlling, with the assent
and assistance of the state the action of others.
According to Paton : That 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 :1.
It is not necessary that the state should always necessarily enforce all the legal rights.
2.
There are certain rights which recognised by law but not enforced by it for example : In a
time barred debt, the right of the creditor to recover the debt is an imperfect right
3.
There are certain laws which do not confer right of enforcement to the courts, for
example : International Court of Justice has no power to compel enforcement of its decrees under
International Law.
THEORIS OF RIGHT :- There are two theories of right :
1.
WILL THEORY : This theory is based upon the will of human beings. It says that a right
reflects the inner will of a human being. Austin, Holland, Halmes and Dov recognised this theory
of right. According to them a person wants o remain in the world freely and according to his
own choice because a man is born free.
2.
Interest Theory:- This theory says that interest is the base of the right. It is only interest
which is recognised by law. This theory reflects the external nature of the human beings.
Supporter of this theory say that there are many interests in the world. These interest which are
protected and recognised by law are called right.
ELEMENTS OF LEGAL RIGHT:- Following are the elements of Rights :1.
Subject: here means a person who has right. So there must be a person for rights

2.
Act of Forbearance :- Right means some standard of action permitted by law. In a right
either an act is done or an act is forbidden. This is also called as content of right.
3.
Object:- There must be a object upon which the right is exercised. Mainly there are three
essential elements of right e.g. Lives in a house. Here : (i) A has the right to live in the house. (ii)
A is subject, house is object and (iii) His living in the house is act content. But some writers give
some more elements of right.
4.
Correlative duty: For right there must be a correlative duty. In the above example A has
the right to live in the house but other persons have correlative duty not to disturb him. Almost
all jurists agree on the point because one cannot exists without the other. Here Austin is not agree
to this He says that the duty may be divided into two kinds i.e. (1) Absolute and (ii) Relative.
5.
Title: Salmond gives one more element of rights in the form of title. He says that a right
has got also a title. Title may be in the form of the owner or co-owner or mortgager or leaser or
buyer etc.
ILLUSTRATION: 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 is persons in general because a right of this
kind avails against the world at large. The right consists in non-interference with the purchasers
exclusive use of the land.
KINDS OF RIGHTS :- The following are the kinds of rights :1.
Primary right and secondary right : Primary right is an independent right while secondary
right means dependent right. They are also called as principal right and helping right or remedial
right. ILLUSTRATION:- A has right of reputation which is his primary and independent right.
If any person defames A then A has the right of damages against the defamer. This right of
damages is called secondary right or remedial right.
2.
Positive and Negative Right:- Positive right is linked with negative and negative right is
linked with duty. Positive right permits to do an act while negative right prohibit doing an act.
ILLUSTRATION:- A has the right of reputation. This is his positive right and any person
should not defame him. The defaming his reputation called negative right.
3.
Right Rem and Personam:- Right in Rem means right against the whole world while right
in persosnam means right against a definite person.
ILLUSTRATION: A has not to be harmed by any person. This is right in rem. On the other
hand, A has entered into a contract with B and B has broken +ve contract. A can enforce
this right against B. This is known as right in personam.
1.
LEGAL AND EUITABLE RIGHT (NATUAL JUSTICE):- The division of right has its
origin in England. Legal ight is recognised by Law. While equitable right has been recognised by
natural justice. In England there were two types of courts: (i) Legal courts (ii) Chancery courts
Chancery Courts recognised the conquerable rights on the basis of justice, equity and good
conscience.
4.
Vested & Contingents Right:- These rights is of permanent nature that depends upon the
happening of an uncertain event. Thus contingents right becomes full right only when such
uncertain events happen according to the condition.

5.
Proprietary and Personal Right:- Proprietary rights which are concerned with property. A
person possessing any property has the proprietary right over it, and personal right means the
right related with a person or a body. Every person has a status. He should not be injured or
defamed. If any person injures or defames another person then the wrong doer infringes the
personal right of a person.
6.
Perfect or Imperfect Right:- These rights which are enforceable by law are perfect and
which law does not enforceable are imperfect rights.
7.
Right of Re-propia and Right in re-alena:- Right in re-propia means the right in ones
own thing whereas right in re-aliena means the right in the things of others.

There can be on duty without a right and According to Hibbert a right is one person capacity of
obliging others to do or forbear by means not of his own strength but by the strength of a third party.
If such third parts is God, the right is Divine. If such third parts is the public generally acting though
opinion, the right is moral. If such third parts is the stale acting directly or indirectly, the right is
legal.

Definition Of Legal Right

The term legal right has been used in two senses:
Restricted Or Popular Sense:
According to Gray: A legal is that powers which a man has to take a person or person do or refrain
form doing a certain act or certain acts, so far as the power arises form society imposing a legal duty
upon a person or persons.
Wider Sense:
In a wide sense, legal right include any legally recognized interest whether it corresponds to a legal
duty or not. It is an addition or benefit conferred upon a person by a rule of law.

Kinds Of Legal Rights:

Following are the kinds of legal rights:

Perfect right

Imperfect right

Real And Personal Rights

Rights In Rem And Rights In Personam

Proprietary And Personal Rights

Inheritable And Uninheritable Rights

Rights In Repropria And Rights In Re Aliena

Principal And Accessory Rights

Legal And Equitable Rights

Primary And Secondary Rights

Public And Private Rights

Vested And Contingent Rights

Perfect right:
According to salmond, a perfect right is one which corresponds to a perfect duty I .e., which is
enforced by law.
Example:
A contract specically enforceable through the Court of law is an example of perfect right.

Imperfect right:

An imperfect right is that which is recognized by law but cannot be enforced by law due to some
impediment. These may be turn into perfect rights.

Positive right:
A positive right corresponds positive duty and the person subject to the duty is bound to do

something.
Negative right:
Negative right corresponds to negative duties. The enjoyment of negative rights is complete
unless such interference takes place.

Real And Personal Rights:

Real right:
According to salomond, a real right corresponds to a duty imposed upon persons in general. It
available against whole word. Real rights are generally a negative rights as the duties which can
be expected form the whole world are of a negative character.
Example:

I have a right to be deprived of my life is a real right as it is available against the whole world.
Personal right:
A personal right corresponds to a duty imposed upon determinate individuals. It against a
particular person. Personal rights are generally positive right as it imposes a duty on a particular
person to do something.
Example:
I have a personal right to receive compensation form any individual who is any harms me.

Rights In Rem And Rights In Personam:

Rights in Rem:
It is derived form the Roman term action in Rem . It is available the whole world Examples are

rights of ownership and possession. My right of possession and ownership is protected by law
against all those who those may interfere with the same.
Rights in Personam:
It is derived form the Roman term action in personam, Right in personam corresponds to duty
imposed upon determinate persons.
Example:
Rights under a contract are right in Personam as the parties to the contract alone are bound by it.

Proprietary And Personal Rights:

Proprietary Right:
The proprietary rights of a person include his estate, his assets and his property in many forms.
They have some economic or monetary value. They possess both judicial and economic
importance.
Example:
The right to debt, the right to goodwill etc.

'

Personal right:
Personal right pertain to man, s status or standing in the law. They promote the man, s well being.
Personal rights possess merely judicial importance.
Example:
Right to life, reputation etc are personal rights.

Inheritable And Uninheritable Rights:

Inheritable Rights:
Inheritable rights are those which survives its owners.
Example:

A dies leaves his property him B his legal heir becomes owner of such property. This is an
inheritable right.
Uninheritable right:
A right is uninheritable if it dies with its owners e. g. personal rights die with its owner and cannot
be inherit.

Rights In Repropria And Rights In Re Aliena:

Rights in Re Propria:
Rights in Re propria are rights in one, s own property. These are complete rights to which other
right can be attached.
Example:

The owner of a chattel has a right in re propria over it.

Right in Re aliena:
Rights is Re aliena are rights over the property of another person. These rights derogate form the
rights of another person and add to the rights of their holder.
Example:
My right of way across the land another person is a right re aliena.

Principal And Accessory Rights:

Principal rights
Principal rights exist independently of other rights. Accessory rights are appurtenant to other
rights and they have a beneficial on the principal rights.
Example:
X owes money to Y and he executes a mortgage deed in favour of Y. the debt is the principal
right and the security in the form of mortgage is the accessory right.

Legal And Equitable Rights:

Legal Rights:
Legal rights are those which were recognized by common Law Court e. g., right to vote etc.
Equitable Rights:
Equitable rights are those which were recognized by the Court of chancery.
Example:
The right of the mortgagor to redeem the property is regarded as a creation of the Courts of equity
and is an equitable right knows as the equity of redemption.

Primary And Secondary Rights:

Primary Rights:
Primary rights are also called antecedent, sanctioned or enjoyment rights. These are those rights
which are independent of a wrong having been committed. They exist for own sake. They are
antecedent to be wrongful act or omission.
Example:

Right of reputation, Right to life etc.

Secondary Rights:
Secondary rights are also called sanctioning, restitutory or remedial rights. Secondary rights are a
part of the machinery provided by the state of the redress of injury done to the primary rights.
Their necessity arises on account of the fact that primary rights are very often violated by the
persons.
Example:
Rights to obtain compensation for defamation to person.

Public And Private Rights: Public rights:

Public rights:
A public right is possessed by every member of the public. It is between a state and the private

individual e. g. , right to vote etc.

Private right:
A private right is concerned only with the individuals. Both the parties connected with the right
are private persons e.g., contract entered into by two individuals.

Vested And Contingent Rights:

Vested right:
A vested is a right in right in respect of which all events necessary to vest it completely in the
owner have happened. No other conditions remains to be satisfied.

Example:
If a valid deed of transfer is executed by ;A; in favour of B, B acquires a vested right.
Contingent right:
According to paton when part of the in vestitive acts have occurred, the right is contingent until
the appening of all the facts on which the title depends.
Example:
A executes a deed in favour of B according to which he entitles to the possession of certain
property when attains the age of 21, the right is contingent right and it will be vested only when
he attains the age of 21.s

Hohfeld presents us with an analytical scheme which splits rights into four different categories of
jural relationships and exemplifies a number of analytical distinctions between various legal
positions. Importantly, Hohfeld's analysis of rights lies in the descriptive exercise of the legal
positions which are connected with each other by means of logical relations of entailment and
negation. Hohfeld's analysis is engaged in an analytical and definitional enterprise and does not
concern itself with substantive or empirical enquiry into the concept of a right. It follows that
Hohfeld's ambition was to provide a conceptual understanding for our use of right, duty etc in
practice, thus facilitating a better understanding of the nature of our rights. It was not, however,
to inform us what rights, duties etc are or should be or what their moral foundation is or what is
necessary for something to count as a right, duty etc. He does not, therefore, say anything about
the justification of rights. Hohfeld's presents a distinction between four different sets of juridical
relationships. This method of splitting the notion of a right into its constituent elements has many
important benefits. It is this clear and precise method that makes Hohfeld's analysis of rights not
only elegant and attractive but also fundamental to anyone wishing to make an informed and
intelligible assessment of the legal position between the parties involved.
This essay argues in support of Hohfeld's analysis of rights. It contends that his approach is
highly plausible and helps us to gain a clear understanding of what rights we have in various
circumstances and allows us to see clearly what the consequence of holding a particular
Hohfeldian entitlement or burden is. It will be argued that Hohfeld's precise exposition of jural
relations is essential to jurisprudence and an understanding of our practices involving rights.
Hohfeld's analysis has attracted much criticism from his fellow jurists, so, to provide a balanced
view, in arguing in favour of Hohfeld's work, I will consider those criticisms, in order to show
that the majority of them are unfounded because the critics have misconceived the nature of
Hohfeld's work. Others are simply not criticisms at all in that they simply state rival theories of
rights. As far as the critics go, it is pertinent to distinguish between anti-Hohfeldians and nonHohfeldians. The former are critics who directly oppose Hohfeld's analysis, holding that it is not
necessary, or even flawed, in that it does not depict our true conventional practices in relation to
rights and does not account for an adequate conception of our rights. The latter are those who do
not rely on Hohfeld's analysis per se but seek to offer an intelligible account of the conception or
use of our rights. Such an account may linguistically appear to be in conflict with Hohfeld's
analysis. But given, as I will argue in this essay, that Hohfeld's analysis, possesses a high degree
of clarity and a remarkable analytical force, it must represent a highly accurate depiction of the
nature of our jural relations. It follows that a non-Hohfeldian without directly acknowledging it,
will tacitly rely on Hohfeld's analytical framework if he is to provide a coherent account of his
position. The significance of this distinction will become apparent when the critics are
discussed.
It is also important to note that since Hohfeld's analysis is definitional or stipulative and not a
product of empirical enquiry, arguably it is nonsusceptible to disproof by means of empirical or
moral refutation. Therefore, critics who try to disprove the validity of Hohfeld's analysis by
resorting to such means must be misconceiving Hohfeld's intention behind the stipulative nature
of his project. It follows that a critic who tries to show the invalidity of Hohfeld's analysis by
engaging in empirical refutation must, in effect, be putting forward an alternative conception
which is capable of application in a different way, but which does not refute Hohfeld's analysis in
any way. Conversely, it must be true that we also cannot validate Hohfeld's analysis of rights by

finding flaws in rival analyses, given the stipulative nature of Hohfeld's work. If this is so, then
what would be the point in tackling the criticisms put forward against his work, since they cannot
either disprove or confirm the validity of his work? We could simply accept Hohfeld's analytical
approach for its clarity, elegance and analytical precision without having to trouble ourselves
with building a response to his critics. Indeed, it could be argued that there is no such need and
Hohfeld's stipulative analysis should be left to stand as it is unless one argues that his analysis is
more than merely stipulative and perhaps one that can be taken to embody necessary truths about
rights, in which case Hohfeld's analysis may serve to establish falsities in rival analyses and be
validated itself. To prove this would require an argument which would call into doubt the general
view of conceptual analysis on which Hohfeld's project is based (merely stipulative) but it is
beyond the scope of this paper to argue that his work is more than merely stipulative and that it
can serve as a finder for the necessary truths about rights and present a ground revealing falsities
in rival analyses etc.
Despite the fact that criticisms of Hohfeld's enterprise, given its stipulative nature, may not be
criticisms at all, it would be insular and narrow to ignore all attempts at criticizing his work.
Such criticisms will therefore be extensively examined and confronted.
Figure 1: Hohfeld's Table of Entitlements and Burdens:

Right(Claim-Right)

Liberty

Power

Immunity

Duty

No-Right

Liability

Disability

The table above represents four sets of various Hohfeldian jural relations. The top row contains
four types of Hohfeld's legal rights, while the bottom row indicates the legal position entailed for
the other party in each of the types of right. These are jural correlatives. On the other hand, pairs
of diagonally opposite elements in the first two columns (duty/liberty and right/no-right) and
those in the last two columns (liability/immunity and power/disability) are jural opposites, i.e.
two legal positions that negate each other. Before venturing to discuss each type of right and
showing the importance of their relationship in modern jurisprudential thinking and our practices
involving rights, it needs to be stated that all of the Hohfeldian rights (in the top row) necessarily
represent entitlements against a specific person. Thus, each Hohfeldian right resolves only one
issue between two specific parties.
Right
To say that X has a legal claim-right means that he is legally protected from interference by Y or
against Y's withholding of assistance with respect to X's project Z. Conversely, Y, who is to
abstain from interference, or is required to provide assistance in connection with X's project Z, is
under a correlative duty to do so. The correlativity stipulation commands that if X has a claimright against Y, this entails Y owing a duty to X, for example, if X has a claim-right that Y should

deliver him goods, this entails Y having a duty to deliver goods to X. One has to be very specific
here. He who has the right must be able to pinpoint another person with a correlative duty either
in terms of shield or assistance. Hohfeld's insistence that every right is a relation between no
more than two persons attracted criticism from James Penner who criticizes Hohfeld's analysis
because it does not account for the distinction between rights in personam and rights in rem. This
is a very weak line of argument because Hohfeld, in defence, can insist, as he does, that a right
held against the whole world is, in reality, a set of various rights ad infinitum and each of those
rights is held against a particular person. The importance of grasping Hohfeldian rights cannot be
overestimated. For instance, in ordinary parlance we refer to an individual having a right not to
be tortured. This is not a 'right' in the strict Hohfeldian sense because the state (or any other
person) is under no correlative duty to abstain from torturing people. Instead, the person's 'right'
not to be subjected to torture is protected by the array of normative protections guaranteed by the
state through the general laws against assault, trespass etc. Therefore, the general right not to be
assaulted sets the protective perimeter within which a person's legal 'right' to be free from torture
can exist.
Liberty
In short, liberty is merely an absence of a duty to abstain from the action. The correlativity of this
jural relationship shows that the person against whom the liberty is held has a no-right
concerning the activity to which the liberty relates. This, however, does not mean that he himself
does not have a liberty to interfere in the activity. Suppose that I am irritated by people who
smoke in my vicinity. I meet S (smoker) in a public place, who starts to smoke in my presence. I
ask him to stop, but S tells me he has a 'right' to smoke here (given the absence of any legal
prohibitions). S is confusing his entitlement. He does not have a right (in the Hohfeldian sense)
to smoke, but merely a liberty (a weaker right). Although I have a no-right concerning his
activity of smoking, I do have a liberty myself (within the constraints imposed on me by S's
genuine rights) to impede his smoking, say, by raising my voice or encouraging other people to
make fun of S for his smoking habit, which may make him stop. The important point is that in
almost every circumstance outside the Hobbesian state of nature, a person who acts in line with
his liberty, such as S, would effectively be shielded, albeit imperfectly, from the encroachment
on his liberty by possession of some basic legal Hohfeldian rights such as the rights against
assault, battery, trespass etc. Hohfeld's analysis therefore provides a clear understanding as to
what the legal position of S is (i.e. what rights he has). As we can see, had it not been for
Hohfeld providing us with a precise vocabulary, S would mistake his liberty for a right, and
accordingly would be unable to accurately report the effect of his entitlement. He would be
wrong in saying to me that I cannot stop him from smoking because he has a right to smoke in a
public place, since it puts me under no duty not to interfere with his smoking. This once again
shows the practical benefit of Hohfeld's elegant and clear analysis. A problem may arise when
two competing liberties arise in the arena of jurisprudence. A good illustration of this is media
law in the United Kingdom whereby freedom of expression and the right to privacy are often
conflicting interests. The courts try to balance these interests, but the state traditionally is under

no duty to provide for either interest. Therefore, it tends to be the consideration of moral and
social norms and principles which governs the judiciary's favour of one interest over the other.
Hohfeld points out that it is the mixing up of value-driven ideals that has confused the meaning
of rights; instead, the clarification of rights should aid the judiciary to balance interests without
letting a possible bias intrude.
Power
In short, a power is one's ability to alter legal (or moral) relations. For instance, I can have the
power to enter into a contract with S whereby he agrees (for a consideration) to refrain from
smoking in my presence. Thus, I have the power to change our legal relations in that I make S
contractually bound (as well as myself). S, thus, has a liability, which is correlative to power, in
that he is liable to having his legal relations altered by my exercise of power. Hohfeld's analysis
clears the practical meaning of the term power; on myriad occasions, lawyers have created
confusion by referring to a 'right' to do something when, in fact, they mean a Hohfeldian power
to do something. Suppose X steals my car. Does he have a 'right' to sell it on to Y? If X sells it to
Y, who is the bona-fide purchaser for value, he can pass good title on to him. Thus, X has a
Hohfeldian power to perform the sale of my car. However, he is not at liberty (in Hohfeld's
sense) to do so, because liberty is the absence of a duty not to do the act, whereas here, X's sale
of the stolen car to Y is a legal wrong and he thus clearly breaches his legal duty by selling it.
Although he has effective power to transfer the title, he does not have a liberty to do so. How
confusing would it be to say that X has a right to sell the car, but he does not have a right to sell
the car in the absence of Hohfeld's precise vocabulary? Hohfeld's analysis indeed helps to clarify
the legal position of the parties and is able to more accurately predict the effect of the alterations
in their respective legal positions.
Immunity
If X has an immunity against Y, it means that Y has no power to change X's legal position with
respect to any entitlements covered by the immunity. For instance, if the state has no power to
place me under a duty to wear a hat when I go out, I have immunity in that respect, and the state
a disability (a correlative to immunity). Simmonds notes that 'Constitutional Bills of Rights
frequently confer extensive and very important immunities, in so far as; they disable the
legislature from enacting certain types of law'. This shows that adopting Hohfeldian analysis of
rights is very important given its clarity and precision to ensure that the state does not overpower
the individual. I have shown so far how useful Hohfeld's analysis can be in getting a clear sight
of the jural relations of the parties involved and their legal positions. Indeed, as has been
suggested, Hohfeld's work has become important, not only in the classification and clarification
of rights elements themselves, but also in the relationship between the non-Hohfeldian uses of
the term right, for instance when a privilege (a non-absolute right) can co-exist with another
privilege. I will further illustrate how Hohfeld's analysis helps to clarify legal relationships and
the meaning of 'rights' by using the case of Quinn v Leathemin part II. One needs to note that the
stipulative nature of Hohfeld's analysis of rights presents an analytically clear scheme which
manages to steer clear of the confusion and complexities which are usually present in theories of
rights which seek to justify rights, bringing into the equation various justificatory factors. In

contrast to Hohfeld, consider, for example, theorists such as Dworkin, Kymlicka, Kant and
MacKinnon who seek to justify rights, mainly in terms of the various values they serve.
Arguably, this adds unnecessary complexity to the nature of rights.