ASA University Bangladesh

Term Paper
On

Legal Rights

Submitted to:
Md. Nurul Huda
Lecturer
Department of Law
ASA University Bangladesh

Submitted by:
Khaled Bin Mosarof
ID: 18-01-21-0031

Date: 08 December 2018

 ASA University Bangladesh

Acknowledgment
I am grateful to the God for the good health and wellbeing that were necessary to
complete this paper.

I wish to express my sincere thanks to Md. Saiful Alam, Dean in-Charge, Faculty
of Law, for providing me with all the necessary facilities for the research.

I am also grateful to Mr. Md. Nurul Huda, lecturer, in the Department of Law. I
am extremely thankful and indebted to him for sharing expertise, and sincere and
valuable guidance and continuous encouragement extended to me.

I take this opportunity to express gratitude to all of the Department faculty

members for their help and support. I also thank my parents for the unceasing
encouragement, support and attention. I am also grateful to my friends and batch
mate who supported me through this venture.

Khaled Bin Mosarof

ID: 18-1-21-0031
Batch: 33
Department of Law
ASA University Bangladesh
 Legal Rights

Table of Contents
S.l No. Topic Page No.
1. Abstract 1
2. Aim of the Study 2
3. Scope of the Study 2
4. Research Methodology 2
5. Limitations 2
6. Introduction 3
7. What is Right? 4-5
8. Theories of Legal Rights 6-7
9. Elements of a Legal Right 8
10. Kinds of Legal Rights 9-12
11. Enforcement of Legal Rights 13
12. Institutional Mechanism 14
13. Conclusion 15
14. Reference and Bibliography 16
 Legal Rights
Abstract:

This term paper is focusing on the term “Legal Rights”. It’s tries to analyses critically few
theory of legal rights and various types of legal rights. Also, study some cases regarding these
rights in this paper. Finally, some recommendations have been placed.

Rights are conditions important for development of character of man. According to Laski,
rights are those state of affairs of social life without which no man can be at his best.1 The
theory of natural rights is the essential. Locke is the main exponent of this theory. According
to this theory, men have certain natural rights that are inherent in man and cannot be taken
away from him. These rights are relied on natural reason.

According to Locke, rights of person, liberty and property are natural and lead the state and are
an obligation on the state. But, this does not offer a proper basis of rights. These are not the
only rights that man needs. In fact, right of property in absolute terms may become an anti-
social organization. The concept of natural reason is ambiguous. Another theory is the
historical theory. According to this theory man should be guaranteed rights that he enjoyed in
the past like the right of property. It is also scarce theory. Rights in the present cannot be relied
on the past. Some of the rights enjoyed in the past may become outdated and may not be
required.2

Keywords: Conditions, inherent, liberty, natural rights, past, property.

1
A Grammar of Politics, 1925, Harold Joseph Laski
2
Locke's Political Philosophy, Nov. 2005, Stanford Encyclopedia of Philosophy
Aim of the study:
To deal with various spheres of Rights.

Scope of the Study:

The project will be covering the meaning of rights, the peculiarities of rights, elements of legal
rights, classification of rights, kinds of legal rights, relationship between legal liberty and legal
right and so on.

Research Methodology:

For this project the research is doctrinal. The information and data for the project will be from
various books, articles and other online resources. The research will include publication
research, and other relevant sources, and will include both present and historical information
related to topic. The case study of various past cases related to the topic will be referred in this
project. Articles and laws related to the topic and also if there is an amendment in the previous
law will also be taken into consideration.

Limitations:

The important limitation of this study is the reliance on secondary data. As the study is not
empirical so the information and research is confined to books, online resources, articles in the
newspapers and magazines.
Introduction:
The development of society is credited to the constant evolution of law. When people come
into contact with each other, everyone has certain rights and duties obligated towards one
another. A right and duty are the pillars of law, and are hence consequently protected by it.
Both these concepts are intertwined. The concepts of legal rights in Jurisprudence are described
below.

Law consists of certain types of rules regulating human conduct and that the administration of
justice is concerned with enforcing the rights and duties created by such rules. The concept of
a right is accordingly one of fundamental significance in legal theory. Two terms which are
closely connected with Right are, wrong and duty. A wrong is simply a wrong act, an act
contrary to the rule of right and justice divisible into two kinds, being either moral or legal. A
moral or natural wrong is an act which is morally or naturally wrong, being contrary to the rule
of natural justice. A legal wrong is an act which is legally wrong, which is contrary to the rule
of legal justice and a violation of the law. In all ordinary cases the legal recognition of an act
as a wrong involves the suppression or punishment of it by the physical force of the state, this
being the essential purpose for which the judicial action of the state is ordained. A duty is
roughly speaking an act which one ought to do, an act the opposite of which would be a wrong.
What is Right?
Before understanding legal rights are should have idea about rights.

Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the
fundamental normative rules about what is allowed of people or owed to people, according to
some legal system, social convention, or ethical theory. Rights are of essential importance in
such disciplines as law and ethics, especially theories of justice and deontology.
Rights are often considered fundamental to civilization, for they are regarded as established
pillars of society and culture, and the history of conflicts can be found in the history of each
right and its development. According to the Stanford Encyclopedia of Philosophy, "rights
structure the form of governments, the content of laws, and the shape of morality as it is
currently perceived".3

The definition of legal rights have been propounded by several famous legal philosophers.
Some definitions are as follows –
1. John Austin – According to Austin, “A party has a right when another or others are
bound or obliged by law to do or forbear towards or in regard of him”.4 This definition
was not widely accepted. It was stated by John Stuart Mill that the act referred by Austin
should be in the interest of the person who can be said to have the right. He illustrated
with an example by stating that when a prisoner is sentenced to death, the jailer is bound
to execute him. Does this mean that the convict has the right to be hanged?
2. John Salmond – Salmond defines right as an interest recognized and protected by a
rule or justice. He says, for an interest to be regarded as a legal right, it should obtain
not merely legal protection but also recognition. The law protects cruelty against
animals, and to some interest the interest of animals, but animals do not possess any
legal rights.5
3. Holland – Legal rights were defined by Holland as the “capacity residing in one man
of controlling, with the assent and assistance of the state the actions of others.” He
followed Austin’s definition.6
4. Gray – He defined a legal right as “that power which a man has to make a person or
persons do or refrain from doing a certain act or certain acts, so far as the power arises
from society imposing a legal duty upon a person or persons.” He states that the “right
is not the interest itself, it is the means to enjoy the interest secured”.7

Rights mean a claim of some interests adverted by an individual or a group of individual which
has either moral or legal basis and which is essential for his development in the society8. In a
sense right not created by law it originates itself as an obvious result of mutual interaction
between man and society.

3
Stanford Encyclopedia of Philosophy, Stanford University, July 9, 2007
4
Ibid
5
The Theory of the Law, 1902, Sir John William Salmond
6
The Elements of Jurisprudence,1880, Sir Thomas Erskine Holland
7
Political Frontier of Jurisprudence: John Chipman Gray on the State, Cornell Law Review, Volume 66, June 5 1981
Rights are primarily divided in to two categories- natural rights and legal rights.

1. Natural rights, are rights which are "natural" in the sense of "not artificial, not man-
made", as in rights deriving from human nature or from the edicts of a god. They are
universal; that is, they apply to all people, and do not derive from the laws of any
specific society. They exist necessarily, inhere in every individual, and can't be taken
away. For example, it has been argued that humans have a natural right to life. These
are sometimes called moral rights or inalienable rights.9
2. Legal rights, in contrast, are based on a society's customs, laws, statutes or actions
by legislatures. An example of a legal right is the right to vote of citizens. Citizenship,
itself, is often considered as the basis for having legal rights, and has been defined as
the "right to have rights". Legal rights are sometimes called civil rights or statutory
rights and are culturally and politically relative since they depend on a specific societal
context to have meaning.10

Some thinkers see rights in only one sense while others accept that both senses have a measure
of validity. There has been considerable philosophical debate about these senses throughout
history. For example, Jeremy Bentham believed that legal rights were the essence of rights,
and he denied the existence of natural rights; whereas Thomas Aquinas held that rights
purported by positive law but not grounded in natural law were not properly rights at all, but
only a facade or pretence of rights.

9
Stanford Encyclopedia of Philosophy, Stanford University, July 9, 2007
10
Ibid
Theories of Legal Rights:
There exist two main theories of legal rights –

1. The Will Theory and

2. The Interest Theory.

The Will Theory of Legal Rights:

The Will Theory states that right is an inherent attribute of the human will. It says that the
purpose of the law is to allow the free expression of human will. This theory was advocated by
scholars like Hegel, Kant, and Hume and so on. The subject matter is derived from human will.
Austin, Holland and Pollock define rights in terms of will. According to the famed French
Jurist, John Locke “the basis of the right is the will of the individual.” Puchta defined the legal
right a power over an object which by means of right can be subjected to the will of the person
enjoying the right. This theory has been widely accepted by the jurists in Germany.

Despite its wide acceptance, there were many scholars who disagreed with it. Some of the
criticisms were from Duguit who is opposed to the “will” theory. According to him 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”. He calls the theory of
subjective right a mere metaphysical abstraction.11

The Interest Theory of Legal Rights:

The Interest Theory was proposed by the German Jurist, Rudolf von Jhering. Jhering defined
rights as legally protected interest. Jhering does not emphasize on the element of will in a legal
right. He asserts that the basis of legal right is “interest” and “not will”. The main object of law
is protection of human interests and to avert conflict between their individual interests. These
interests are not created by the state, but they exist in the life of the community itself. Salmond
supported it but mentioned that enforceability is also an essential element. He says, “Rights are
concerned with interest, and indeed have been defined as interests protected by rules of right,
that is by moral or legal rights”.12

Salmond has criticized Jhering’s theory on the ground that it is incomplete since it completely
overlooks the element of recognition by the state. A legal right should not only be protected by
the state but should also be legally recognized by it. Gray stated that the theory was only
partially correct. He emphasized that a legal right is not an interest in itself but it is only a
means to extend protection to interests. He considers legal right as that power by which a man
makes other persons do or refrain from doing a certain act by imposing a legal duty upon them
through the agency of law “state”.

11
The Concepts of Law,1961, Herbert L.A. Hart
12
Traités de législation civile et pénale, 1802, Jeremy Bentham
Both these theories are not opposed to each other, it is rather a combination of both that is
correct. Dr. Allen has tried to blend these two theories by pointing out that the essence of legal
right seems to be, not legally guaranteed power by itself nor legally protected interest by itself,
but the legally guaranteed power to realise an interest. Thus, it would be sensible to say that
both “will” and “interest” are essential ingredients of a legal right.
Elements of a Legal Right:
According to Sir John Salmond, each legal right has 5 essential elements –
1. The Person of Inherence – It is also known as the subject of right. A legal right is always
vested in a person who may be distinguished, as the owner of the right, the subject of it
or the “person of inherence”. Thus, there cannot be a legal right without a subject or a
person who owns it. The subject means the person in whom the right is vested or the
holder of the right. There can be no right without a subject. A right without a subject or
a person who owns it is inconceivable. The owner of the right, however, need not be
certain or determinate. A right can be owned by the society, at large, is indeterminate.13

2. The Person of Incidence – A legal right operates against a person who is under the
obligation to obey or respect that right. He is the “person of incidence”. He is a person
bound by the duty or the subject of the duty.14

3. Contents of the Right – The act or omission which is obligatory on the person bound in
favour of the person entitled. This is called the context or substance of right. It obliges
a person to act or forbear in favour of the person who is entitled to the right. It may also
be known as the substance of the right.15

4. Subject matter of Right – It is something to which the act or omission relates, that is the
thing over which a right is exercised. This may be called the object or subject-matter of
the right. Some writers, although argue that there are certain rights which have no
objects.16

5. Title of the Right – Salmond has given the fifth element also, that is, “title”. He says
that “every legal right has a title, that is to say, certain facts or events by reason of which
the right has become vested in its owner”.17

Hence, it can be observed every right involves a three-fold relation, in which it stands
I. It is a right against some person or persons.
II. It is a right to some act or omission of such person or persons.
III. It is a right over to something to which that act or omission relates

The terms of ‘person’, ‘act’, and ‘thing’ are connected with the term ‘Right.’

A popular illustration that was quoted by Salmond satisfies all the above mentioned elements
of legal rights. It is as follows –

“If A buys a piece of land from B, A is the subject or owner of the right so acquired. The persons
bound by the correlative right are persons in general, for a right of this kind avails against all
the world. The context of the right consists in non-interference with the purchaser’s exclusive
use of the land. The object or subject-matter of the right is the land. And finally, the title of the
right is the conveyance by which it was acquired from its former owner.”18

13
The Theory of the Law, 1902, Sir John William Salmond
14
Ibid
15
Ibid
16
Ibid
17
Ibid
18
Ibid
Kinds of Legal Rights:
Jurists have classified legal rights in the following ways19 –

1. Primary and Secondary Rights

2. Public and Private Rights
3. Positive and Negative Rights
4. Vested and Contingent Rights
5. Perfect and Imperfect Rights
6. Principal and Accessory Rights
7. Legal and Equitable Rights
8. Proprietary and Personal Rights
9. Rights in Rem and Rights in Personam
10. Rights in re Propria and Rights in re Aliena

These are described briefly below:

1. Primary and Secondary Rights - Primary Rights are also called antecedent rights. It is
vested within a person by law or any other legal manner. These are the bundles of
those rights which are the privileges enjoyed by any person e.g. a person’s rights
to Liberty. A violation or breach of the primary rights, on the other hand, gives rise to
a sanctioning right or remedial right. These are also known as secondary rights. It is
also called the remedial or adjectival rights. It is called so as it is a mode of legal
enforcement, for the loss of the primary right. It is subdivided into two kinds – 1. Right
to exact and receive a pecuniary penalty from the defendant for loss of right and 2.
Right to exact and receive damage for the injury caused to the defendant. It can be said
that primary rights exists independently whereas secondary rights have no separate
existence and arise only on violation of primary rights.
2. Public and Private Rights - Legal rights can be considered as both public and private.
Public rights are those vested with the state. The state enforces such right as a
representative of the subjects in public interest. A public right is possessed by every
member of the public. For example, a right that is concerned with the Government may
be termed as a public right such as the right to vote. A private right, on the other hand,
is concerned with individuals, that is both the parties connected with it are private
persons. For example, owning a vehicle is a private right.

19
An Introduction to Jurisprudence & Legal Theory, April 2008, Dr. Md. Ahsan Kabir
 3. Positive and Negative Rights - A right is considered as positive or negative depending
upon its correlative duty. A positive right exists when the owner of it is entitled to
something to be done by the person of incidence. A person possessing a positive right
can compel the person with the duty to perform a positive act. For instance, a right to
receive a compensation is a positive right. A negative right corresponds to a negative
duty and is a right that the person bound shall refrain from some act which would
operate to the prejudice of the entitled; in other words, a negative right, corresponds a
negative duty. It is a right of the person and the person bound shall restrain from doing
some act which will be prejudicial to the person entitled, such as when a person owns
a land, it is the duty of others to not trespass.20

Every person is entitled to negative rights, but only a few get positive rights. The
number of negative rights is larger than the positive rights. The difference between
these rights is illustrated below -
i. A positive right corresponds to a positive duty whereas a negative right corresponds
to a negative duty.
ii. A positive right involves a positive act while a negative right involves some kind of
forbearance or not doing.
iii. A positive right entitles the owner of it to an alteration of the present position to his
advantage whereas a negative right seeks to maintain the present position of things.
iv. A positive right aims at some positive benefit but a negative right aims at not to be
harmed.
v. A positive right requires an active involvement of others but a negative right
requires only positive acquiescence of other persons.
vi. A positive right receives something more than what one already has whereas a
negative right seeks to retain what one already has.
vii. A positive right has a mediate and indirect relation to the object while a negative
right is immediately related to the object.

4. Vested and Contingent Rights - A vested right is a right in respect of which all events
essential to vest the right in the owner have happened; while a contingent right is one
in respect of which only some of the events necessary to vest the right have happened
and the vesting can be complete only on the happening or non-happening of a specified
uncertain event. A vested right is not dependent upon the fulfilment of any condition
and a right becomes contingent only on the fulfilment of any condition that may either
be subsequent or precedent. Vested rights are transferable and inheritable, this is not
possible in contingent rights.

5. Perfect and Imperfect Rights - A perfect right is one which corresponds to a perfect
duty and a perfect duty is one which is not only recognized by the law but is enforced
also. Perfect right means the complete right, which signifies the right for which there is
remedy also. This is explained by the Latin maxim “ubi jus ubi remedium” which
means, where there is a right, there is a remedy. When in case of the breach the right is
not enforceable in a court of law then it is known as imperfect right. This was stated in
the case of Allen v. Waters & Co. [(1935) 1 KB 200].21 The Directive Principles of the
State Policy that is present in the Indian Constitution is an example of imperfect rights.

20
The Theory of the Law, 1902, Sir John William Salmond
21
Allen v. Waters & Co. [(1935) 1 KB 200]
 6. Principal and Accessory Rights - A principal right is a primary right of a person vested
in him by the law of the land, or through any other legal method. An accessory right is
a right which is connected with the principal right. Principal rights exist independently
while accessory rights are dependent upon principal rights. They are beneficial on the
principal right.

7. Legal and Equitable Rights - These type of legal rights cannot be found in India. It is
found only in England. Legal rights are those which were recognized by the Courts of
Common Law in England and Equitable rights are those which were solely recognized
in the Court of Chancery. The underlying principle in regards to equitable rights is that
when there are two inconsistent equitable rights claimed by different persons over the
same thing, the first in time shall prevail. Although, where there is a conflict between a
legal right and an equitable right, the legal right shall take precedence over equitable
right even if it is subsequent to the equitable right in origin. The Privy Council in Chatra
Kumari Devi v. Mohan Bikram [(1931) 58 I.A 279]22 observed that the Indian law does
not recognized legal and equitable estates.

8. Proprietary and Personal Rights - Proprietary Rights are rights that are related to a
person’s property whilst personal rights relate to one’s body. Proprietary rights are
transferable and personal rights are not. If the breach of a right can be measured in terms
of money or it has money value than it is said that the person has proprietary right but
if the breach of a right cannot be measured in money or it has no money value that that
right is known or called as personal right. A personal right is uninheritable and dies
with him.

9. Rights in Rem and Rights in Personam - These are also called real and personal rights.
The modem terms right “in rem” and right “in personam” have been
generalized, somewhat inaccurately, from Roman sources. A right in rem means a right
available against the whole world whereas a right in personam is a right that is available
only against specific number of people.

22
Kumari Devi v. Mohan Bikram [(1931) 58 I.A 279]
10. Rights in re Propria and Rights in re-Aliena - Rights in re Propria and Rights in re
Aliena are a classification of proprietary rights. Right in re Propria is the right in his
own thing and if he has a right in the property belonging to another than he is said to
have a right in re Aliena. A right in re-Aliena has been defined by Salmond as one,

Which limits or derogates from some more general right belonging to some other
person in respect of the same subject-matter. Salmond refers to four classes of
encumbrances, namely,

i) Leases; ii) Servitudes; iii) Securities iv) Trusts.

i) Leases – A lease is an encumbrance of property vested in one person by a right

to the possession and use of it vested in another person.

ii) Servitude – A servitude is a right to the limited use of a piece of land

unaccompanied either by the ownership or possession of it.

iii) Security – Security is an encumbrance vested in a creditor over the property of

his debtor for the purpose of securing the recovery of the debt.

iv) Trust – A trust is an encumbrance in which the ownership of property is limited

by an equitable obligation to deal with it for the benefit of someone else. The owner
of the encumbered property is called the trustee and the owner of the encumbrance
is the beneficiary of tire trust.
Enforcement of Legal Rights:
A legal right may be enforced through a Court of Law that has been established by the State.
A legal right is generally enforced by awarding damages in civil cases. IF damages don’t
suffice, the object itself may be restored. Specific performances may also be ordered by the
court. Alternatively, the court may grant an injunction for the enforcement of a legal right. The
law of injunction is mentioned in Specific Relief Act, 1877 (Act No. I of 1877).23 It is a
prohibitive writ which restrains a party from doing an act that affects the plaintiff from enjoying
his legal right.

A legal right is commonly defined as an interest recognized and protected by law. Law cannot
recognize and protect all the interests of the people. Thus it selects some interests as worthy
for legal protection. Inhering regards legal rights as such of these interests which have obtained
legal protection. According to him, one can be said to have a right only when there exists for
one some advantage, which is protected by the state. In every case, the existence of a legal right
is dependent upon the circumstance that some human interest has secured the protection of the
state.24

23
Specific Relief Act, 1877 (Act No. I of 1877)
24
N.H. Jhabvala, The elementsof Jurisprudence, C. Jamnadas and Co., 2013, P.140
Institutional Mechanism for the Protection System of Legal Rights in
Bangladesh:

1. National Human Rights Commission (NHRC)

The National Human Rights Commission (NHRC) was established in 2009 under the
National Human Rights Commission Act 200925 with aim to contribute to the embodiment
of human dignity and integrity as well as to the safeguard of the basic order of democracy.
NRHC consists of three members, one chairman and other two members. However, the
2009 Act itself may not inspire confidence in the efficacy, independence or transparency
of the institution. The reasons are to be found in formation of the selection committee, the
size of the Commission, in restraints on its investigative powers, and limited mandate to
try perpetrators.

2. Anti-Corruption Commission (ACC)

Anti-Corruption Commission Act 200426, established an Anti-Corruption Commission, in

2004. The Act sought to establish an independent agency for combating corruption with
legal authority to conduct inquiries and investigations, file and conduct cases, review legal
measures for preventing corruption, demand statement. It has been observed not to make
the desired impact, but following its reconstitution in February 2007, the Commission
began working with renewed vigor and impetus duly acceding to the United Nations'
convention against corruption that was adopted by the General Assembly away back on 31
October 2003.

3. National Legal Aid Organization (NLAO)

Recognizing inherent difficulties that impede marginalized and poor people’s access to
justice, the government enacted the Legal Aid Act in 2000 under which a National Legal
Aid Organization has been set up to provide legal aid services to the poor and the
disadvantaged, of assets and liabilities, and seize property in excess of known sources of
income27.

25
National Human Rights Commission Act 2009
26
Anti-Corruption Commission Act 2004
27
The Legal Aid Act 2000
Conclusion:

To conclude, I can say, that legal rights are those which are conferred by the state on certain
individuals and imposes corresponding duties on others. It is enforced by the physical force of
the state. It is been classified into different kinds according to their scope by various authors.

We have been observed that The Constitution of Bangladesh28 has included all the basic
attributes of legal rights. But practically sometimes the government is compelled to violate the
rights of the people in Bangladesh due to some unavoidable circumstances. The ruling class
should be truly respectful to the legal rights of the people. There should not be any international
barrier Created by government for political interest and to oppress the opposite. It is the
responsibility of the government to limit the events to violate the legal rights of the people. In
addition, try their best respond these rights in some very rare cases, where there is no other
alternative. Which is truly done for the sake of the country’s overall benefit with no purpose of
self-interest of the ruling party, some more restriction and controlling can be developed in the
constitution of our country to regulate and prevent the indiscriminate and whimsical violation
of the rights by the ruling power furthermore, the consciousness rights. Therefore, the ruling
class for their self-interest can’t violate their rights.

28
The Constitution of People’s Republic of Bangladesh
 Reference and Bibliography
1. A Grammar of Politics, 1925, Harold Joseph Laski
2. Allen v. Waters & Co. [(1935) 1 KB 200]
3. An Introduction to Jurisprudence & Legal Theory, April 2008, Dr. Md. Ahsan Kabir
4. Anti-Corruption Commission Act 2004
5. Kumari Devi v. Mohan Bikram [(1931) 58 I.A 279]
6. Locke's Political Philosophy, Nov. 2005, Stanford Encyclopedia of Philosophy
7. Political Frontier of Jurisprudence: John Chipman Gray on the State, Cornell Law
Review, Volume 66, June 5 1981
8. National Human Rights Commission Act 2009
9. N.H. Jhabvala, The elements of Jurisprudence, C. Jamnadas and Co., 2013, P.140
10. Specific Relief Act, 1877 (Act No. I of 1877)
11. Stanford Encyclopedia of Philosophy, Stanford University, July 9, 2007
12. The Concepts of Law,1961, Herbert L.A. Hart
13. The Constitution of People’s Republic of Bangladesh
14. The Elements of Jurisprudence,1880, Sir Thomas Erskine Holland
15. The Legal Aid Act 2000
16. The Theory of the Law, 1902, Sir John William Salmond
17. Traités de législation civile et pénale, 1802, Jeremy Bentham