January 27, 2022

Theories of Legal Rights


Historically when most of the world was under monarchy, theory of divine right was followed when one divine Supreme Being was the source of the rights of individuals. Among other philosophers John Locke considered rights as inalienable and naturally possessed by every man by birth, in his opinion every man has three natural rights; right to life, right to liberty and right to estate. It is to a great extent agreed by philosophers that rights are derived from law and in order to determine the origin of rights, one must find the origins of law.

According to the Supreme Court of India legal right has been defined in the case of State of Rajasthan v. Union of India AIR (1977) as: “In strict sense, legal rights are correlatives of legal duties and are defined as interests whom the law protects by imposing corresponding duties on others. But in a generic sense, the word “right” is used to mean an immunity from the legal power of another, immunity is exemption from the power of another in the same way as liberty is exemption from the right of another, immunity, in short, is no subjection.” Legal rights are, clearly, rights which exist under the rules of legal systems or by virtue of decisions of suitably authoritative bodies within.


1. Protection theory of right – it is the law which creates, protects and recognizes the rights so created. Thus, one of the characteristics feature of a legal right is its recognition. It is recognized by a legal system and is enforced by a legal process. However, this theory is subject to certain qualifications-

  • The law will not always enforce a right, but grant the injured party damages by providing remedy.
  • Sometimes law itself creates a disability in so far as the enforcement of a legal right is concerned.
  • Sometimes a legal system lacks machinery for the enforcement of its decisions.

So, in view of the above difficulties it would be better to define a legal right in terms of recognition and protection by the legal order.

2. Will theory of right:-“rights are inherent attribute of human will.” The right to self – expression and self – assertion is a part of individual’s freedom which is inseparable of man and his individuality. Man would feel helpless in the absence of such natural freedom and liberty. All-natural rights are essential for the development of man in his life provided, man would not use these rights for illegal things. Will theory was extended by the doctrine of natural rights, which declared that there were certain spheres of personal life with which the state could not legally interfere. Supporters of this theory are Hegal, Kant, Locke and Hume. On the other hand, Duguit criticized that will is not an essential element in law. He says that there is over emphasis on the right of the individual rather than on his obligations. He calls this theory of subjective right as a mere physical abstraction.

3. Interest theory of right

There are some jurists who say, that fundamental basis of right is an “interest”. For example- a baby who is born and is one year old has certain rights according to law because it is known that a person is given right from the day when he/ she is in their mother’s womb. But it cannot be said that they have a “will”. What a right protects is not a will or choice, but some interest for the benefit of the person who holds that right. An interest may be said to be “a claim or want of an individual or group of individuals which that individual or group wishes to satisfy. According to C.K Allen, “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 realize an interest”.


1) Primary and Secondary rights

Primary rights are those rights which are vested on any person by law and therefore it exists independently whereas, secondary rights have no separate existence, it arises 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 rights which is vested within the state, that means every individual is subject to such right. For Example- right to vote. Whereas, private rights are concerned with individual, that is both the parties connected with it are private persons. For Example- owing a bike is a private right.

3) Positive and Negative rights

A positive right involves a positive act and it corresponds to a positive duty whereas, negative right involves some kind of forbearance or not doing and it corresponds to a negative duty.

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; it totally depends on the happening and non-happening of the events because there is no condition for it and also it is inheritable and transferable in nature. Whereas, contingent rights are not inheritable and transferable in nature and a vested right becomes contingent only upon the fulfillment of condition that may either be subsequent or precedent.

5) Perfect and Imperfect Rights

A perfect right corresponds to a perfect duty and it is only recognized by law but also enforced. Perfect right means a complete right which signifies when there is a right, there is a remedy. This is explained in the maxim “ubi jus ibi remedium” which means, where there is a right, there is a remedy. Whereas, in the case of Allen v. Waters & Co. it is stated that the breach of right is not enforceable in a court of law then it is known as imperfect right.

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. Whereas, accessory right is a right which is connected with the principal right.

7) Legal and Equitable right

The Privy Council in Chatra Kumari Devi v. Mohan Bikaram, it was observed that the Indian Law does not recognized legal and equitable estates. 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.

8) Proprietary and Personal rights

Personal rights are related to a person’s property whereas personal rights related to one’s body. Proprietary rights are transferable and the breach of such rights can be measured in terms of money. Whereas, personal rights is inheritable and dies with him and such rights cannot be measured in terms of money.

9) Rights in Rem and Rights in Personam

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. These are also called real and personal rights.

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.


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 which is vested in a person and which may be distinguished as the owner of the right, the subject of it or the “person” of “inherence”. Hence, there cannot be a legal right without a subject or a person who owns it. Here, subject means the person in whom the rights are vested. Therefore, a right without a subject or a person who owns it is inconceivable. The owner of the right need not be certain or determinate. A right can be owned by the society, at large, is indeterminate.

2) The person of incidence

A person who is bound by the duty or the subject of the duty is known as the person of incidence.

3) Contents of the right

The act or omission which is obligatory on the person bound in favor of the person entitled is known as contents or substance of right.

4) Subject matter of right

It is something over which the acts or omission relates, over which a right is exercised. This is termed as subject matter of right.

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”.

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”.


A legal right may be enforced by a court of law that has been established by the state. It is generally enforced by awarding damages in civil case, specific performance may also be ordered by the court if damages do not suffice. It may also grant injunction which is mentioned in Specific Relief Act, 1963.


So, there are various rights available to a human being since its birth. It is totally dependent on the humans to how to use that right in respect of his welfare. As we have seen there is 3 kinds of rights according to jurisprudence. And also, there are various kinds of legal rights upon which person can take remedy when there is violation of the same. The need of the hour is to educate the people and inform them about their rights and with the view of the government, it is time when government should do certain changes in their mechanism so that there can be speedy remedy given to plaintiff.

For more notes on Jurisprudence, click here.


1. Www.papers.ssrn.com/sol3/papers.cfm?abstract_id=3369653.

2. Www.core.ecu.edu/phil/mccartyr/1175docs/TheoriesofRights.pdf.

3. Www.blog.ipleaders.in/concept-of-rights-and-duties-under-jurisprudence/.

4. Www.jstor.org/stable/2376739?seq=1#metadata_info_tab_contents.

5. Www.subodhganga.inflibnet.ac.in/bitstream/10603/71969/3/03_chapter%201.pdf.

Author Details: Shanu chandwasia (3rd year student of B.A. LL.B. (Hons.) at Amity University, Kolkata)

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