23 What are Rights

Dr. Aneesh V. Pillai

Table of Contents

1. Learning Outcomes

2. Introduction

3. Rights

4. Kinds of Legal Rights

4.1. Perfect and imperfect rights

4.2. Positive and Negative Rights

4.3. Rights in rem and right in personam

4.4. Proprietary and personal rights

4.5. Rights in re propria and rights in re aliena

4.6. Principal and accessory rights

4.7. Primary and sanctioning rights

4.8. Vested and contingent rights

5. Ownership

5.1. Right to possession

5.2. Right to use and enjoy

5.3. Right to consume, destroy or alienate

6. Subject matter of ownership

7. Summary

Learning Outcomes

Is to give a clear cut foundation to the study of Group Rights as group rights are one among the four generations of Human Rights and because Human Rights study itself requires the study about what are Rights Students will be able to understand the characteristics of rights so as to find out whether group rights could really exist

Introduction.

Wherever there is human beings, there is a need for an authority to protect the weaker from the mighty. We find this authority in many forms, the headmen, the king, the State etc. This authority has many folded functions to perform. One is to ensure that the weaker is protected against the mighty, and also that the subjects are protected from the abuse of power of the State itself. While the first deals with legal rights, second deals with fundamental rights or human rights. Thus, rights are always a limitation on the power of the State, either to act against the wrong doer or to not to act in a particular manner towards the subjects. In that sense, rights become the fundamental component of all rights. Thus, in order to have a discussion on group rights, it is essential first to have a deep analysis of the concept of rights.

Rights

Rights are of two types- moral or natural right and legal right. A moral right is an interest recognised and protected by a rule of morality- an interest the violation of which would be a moral wrong. A legal right is an interest protected and recognised by a rule of law. There are jurists who argue that only legal right exists, and that denied the existence of moral rights. For our discussion as to what are group rights, first, we are to be thorough with what are rights, and what are their characteristics. In a generic sense legal right is defined as any advantage or benefit conferred upon a person by a rule of law. These are four types according to Hohfield. The following table will make these kinds of rights, and their jural co-relatives clear to the reader.

They are, rights, liberty, power and immunity. When there is any one of these in one person, as a corollary, or as a consequence, there will be a correlated legal bind on the others. For example, when A has a right to enter into a premise, there will be a correlative duty on another to let him enter into the premise. Likewise, if I have a right to get legal aid, the State owes a duty to make it available to me. Similarly, corresponding to liberty, there is no-right. For illustration, if B is at liberty to express himself (freedom of speech and expression), others have no-right to prevent him. Also, I have a liberty means the absence of duty in myself. Likewise, right in me means absence of no-right in myself. Thus, jural correlatives show the presence of one in a person and the presence of the other in others. Jural opposites denote the presence of one in oneself and the absence of it in himself.

The correlative of power is- liability, and that of immunity is disability. Power is an ability conferred upon a person by the law to alter, by his own will directed to that end, the rights, duties, liabilities or other legal relations, either of himself or others. Example of power are right to make a will, alienate property, power to arrest an accused etc. These are termed as power because, as in the case of right in the strict sense, there is no co-relative duty on anyone. Also, as in the case of liberty, it is not just a corresponding no-right in others. But others are under an obligation to act. This means that when there is power in one person, others have a liability. The power of the State to prosecute is one example. This power puts a liability even on a person to be sued in a Court of law, irrespective of whether the case is won or lost. Immunity is an exemption from having a legal relation changed by another. Exemption of women (except the relatives of the husband) from the purview of the Protection of Women from Domestic violence Act, 2005 is an example. This puts a disability on others to file a complaint against, for example a mother who beat her daughter.

These are generally a discussion about rights in the strict sense, and in the wider sense.

According to Salmond, every legal right has the five following characters

• 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.
• It avails against a person, upon whom lies the correlative duty. He may be distinguished as the person bound, or as the subject of the duty, or as the person of incidence.
• It obliges the person bound to an act or emission in favour of the person entitled. This may be termed as the content of the right.
• The act or omission relates to something, which may be termed the object or subject matter of the right.
• Every legal right has a title, that is, certain facts or event by reason of which the right has become vested in the owner.

Kinds of Legal Rights

4.1. Perfect and imperfect rights: Perfect rights are the rights which are correspondent to perfect duties. Perfect duties are the duties which are enforceable. A duty is said to be enforceable when an action or legal proceeding, whether civil or criminal lie for the breach of it. The judgment will be executed against the defendant. Imperfect rights are those against which there is no perfect duty,that is the duty will not be enforceable. The duty to give alms to poor is imperfect duty, however, the duty to maintain one’s wife is a perfect duty. So, in the former there is only an imperfect right as this duty is not enforceable, while in the latter, there is a perfect right, as there is a corresponding perfect duty, which is enforceable through maintenance laws like section 125 of the Code of Criminal Procedure1.

4.2.Positive and Negative Rights: As the words indicate, positive rights are those against which there are positive duties on others, or any other person, while negative rights are that which bind the others with a duty to refrain from doing some acts. Thus, in the case of positive right, there will be benefit to the right holder, while in the case of negative right, there is only a guarantee not to be harmed. A person will always have right not to be injured. This is a negative right. If a person has a right to be treated in the case of injury , it is a positive right.

4.3.Rights in rem and right in personam: Right in rem is a right enforceable against all, while right in personam which is also called a personal right is a right enforceable against only certain persons. Thus, in the former, corresponding duty is there in general, and in the latter, corresponding duty is vested only on certain people, or person. Almost all rights in rem are negative in nature, as it puts a corresponding duty on others not to do something, while almost all rights in personam are positive in nature. If a person has a property,he has a right in rem against all, against destruction of it, whereas, if a person gives loan to another, the former has a right only against the latter, and this right is called right in personam.

4.4.Proprietary and personal rights: As the name indicates, proprietary rights pertain to a person’s properties like land, chattels, shares in company etc. Personal rights relate to one’s personal life. Proprietary rights are the elements of wealth, while personal rights are the elements of well-being. A person’s rights arising out of his being a free man, or citizen are examples of personal rights. In other words, personal rights pertain to a person’s status.

4.5.Rights in re propria and rights in re aliena: Right in re propria is a right of an owner over his own property, while rights in re aliena are rights over the property of someone else. A right subject to an encumbrance may be termed as sevient, and the encumbrance which derogates from it may be termed as dominant.

4.6.Principal and accessory rights: Rights are interrelated. Sometimes, a right of one person may affect the rights of another adversely. Likewise one right may add to the existing right. The former is a principal right and the latter accessory.

4.7.Primary and sanctioning rights: Primary rights are general rights arising from any source whereas sanctioning rights are rights arising from some wrongs. If a contract between A and B is broken by A, B has a sanctioning right in personam against A for damages.

4.8.Vested and contingent rights: A right is said to be vested when all the facts have occurred which must by law occur in order for the person in question to have the right. A right is contingent when some but not all of the vestitive facts, as they are termed, have occurred. For example a grant of land to A in fee simple will give A a vested right of ownership. If a grant of land to A for life, and then to B in fee simple if he survives A is given, B is given a contingent right.

Ownership

These are generally a categorisation of rights. But, the most important aspect is, “ownership”. Because, only the owner of a thing can exercise various rights over it. “Ownership denotes the relation between a person and an object forming the subject matter of his ownership. It consists of a bundle of rights. They are,

Right to possession: The owner has the right to possess the thing of which he is the owner, against the whole world. However, as the owner, he can hire it, as a result of which he may not be in the immediate possession of it. But he still retains the right to possess it, on the termination of the period of hire. Likewise, even if he is deprived of possession, say by a thief, he is still entitled to possession on the recovery of it.

Right to use and enjoy: This includes the right to manage the property as to how to use it, and the right to income from it. These are more like liberties- the owner is at liberty to do whatever he wants to do with it. For example, if it is a landed property, he can either build a house or keep it vacant. He can build the house in the manner he likes, he can use the paint which he likes etc.

Right to consume, destroy or alienate : The right to alienate is of prime importance because, though non owners can also possess certain things, they do not have the right to alienate it, unless law provides for it. It is also a surprising fact that, even the property can be destroyed by the owner. Here also, this power is subjected to restriction if the law provides for it. For example, if a person has excess food in his house, as the owner he can throw it away, even if his neighbour may be starving. But if there is a law which prohibits destruction of food on account of a welfare measure, then this right is limited to that extend. Likewise, even the right to alienate may be restricted. For example, in order to avoid exploitation of the tribes, there is restriction on their right to alienate the land in Kerala, through the Kerala Scheduled Tribes(Restriction on Transfer of Lands and Restoration of Alienated Lands) Act.

Indeterminate duration: An owner’s right is endures theoretically forever, whereas the non-owner who may even be in possession of the property comes to an end at a point of time. For example the interest of a bailee, of lessee.

Residuary character: If a property is given for lease to A, easement to B, and some other right to C, the owner’s right consists of the residuary rights.

These being the characteristics of ownership, then the question is, as to what all things can be ‘owned’, that is subject matter of ownership. This is because in the discussion on various group rights such as farmers’ rights, and indigenous people’s rights, whether they can be given property rights over certain things will assume importance.

The subject matter of ownership

The subject matter of ownership is not confined to material objects like land and chattels. Shares in companies, patents, copyrights and interests in trust funds are equally good subject matters of ownership. But there seems to be consensus that irrespective of the nature of the subject that is owned, what is owned is, rights. Also there are certain rights without a subject matter at all, like right to liberty, right against torture, right to privacy. These are rights, without a subject matter as in the case of a right to property. But even regarding right to property, there can be complications when it comes to property rights, what is the proportion of rights owned by each will be of practical relevance when it comes to the question of usage, enjoyment, destruction, or alienation of the property. This takes us to the discussion on different types of ownership such as sole ownership and co-ownership.

Co-ownership means two or more persons may at the same time have ownership of the same thing vested in them. Partners of firm are co-owners of the assets and liabilities of their firm. But, interestingly, they are not owners of half of the property, assets or liability. So, if two partners have one lakh rupee in their bank, or 2 lakh debt, each of them is entitled to one lakh, as well as owing to the creditors 2 lakhs. But if they decide to have separate ownership, it becomes a partition and the ownership becomes sole ownership.

Conclusion

To sum up, right in the strict sense means something that corresponds to a duty, and in the wider sense can be termed as liberty, power and immunity. Thus there need not always be a duty upon others, when there is a right. There are various rights to the owner of a thing, and holder of a right. The former relates to right over certain properties, while the latter relates to right as a right, without a thing being there over which the right to exist. This distinction is very important in the case of group rights because in the case of various group rights such as farmers’ rights, indigenous people’s rights, tribal peoples’ right, as they somehow are related to property, the characteristics of ownership also assumes importance. There are various types of rights in the strict sense as well.

Reference

• Brett, A., 1997, Liberty, Right, and Nature, Cambridge: Cambridge University Press.
• Campbell, T., 2006, Rights: A Critical Introduction, London: Routledge.
• Cruft, R., 2010, “On the Non-Instrumental Value of Basic Rights”, Journal of Moral Philosophy, 7: 441– 61.
• Edmundson, W., 2012, An Introduction to Rights, Cambridge: Cambridge University Press, 2nd edition.
• Feinberg, J., 1970, “The Nature and Value of Rights”, Journal of Value Inquiry, 4: 243–257.