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Concept of Rights and Duties
1.1 Rights
Functional working mechanism of law is that it creates rights and duties of people. Every law
empowers an individual to have a benefit while it imposes obligation on the other party to do
their duties in honoring the rights. E.g; If there is a law for providing the citizenship of a country
for the recognition of nationality of citizens then, Person has a right to citizenship and state has a
duty to provide it.
Rights exists for the protection of the necessities of an individual in human world, unlike the
struggle for existence and survival of the fittest theory in animal kingdom. Unlike animal, human
beings are believed to be born equal and they have an equitable shot at life and it's journey. It can
be presumed that Rights are necessary for protection of humane needs and desires of an
individual in society.
Definitions
Rights are the valid claims of an individual that are accepted by society as necessary for personal
growth and that of the society.
Rights can be considered as sets of facilities and privileges offered by the state to it's citizens
despite all odds.
Rights can also be defined as what is rightfully owed to an individual by the state.
What Scholars Said?
Right is one person's capacity of obliging other to do or not to do something, by means not of his
own strength but by the strength of third party. –Hibbert
If third party is god, it's divine right.
If third party is public, it's moral right.
If third party is state, it's legal right.
Rights are those conditions of social life without which no men can seek to be himself at his best.
– Professor Laski
A right is an interest recognized and protected by a rule of right (law). It is an interest, respect for
which is a duty, and disregard of which is a wrong. –Salmond
A person can be said to have a right only when another or others are bound or obliged by law to
do something or forbear in regard to his rights. It means that a right has always a corresponding
duty. –Austin
Elements of Right
In general sense, following can be the elements of a right:
a. Persons (Rights and Duty Holder)
b. Recognition (by individual, state or society)
c. Co-relative duty (Duty that others owe to right holders)
d. Enforcement Mechanism (Law, Police, Court)
e. Consequence (Remedies and Sanctions)
According to Salmond, following are the valid elements of a legal rights:
a. Person of inherence
Also known as the owner or the subject of right.
Owner of the right for whose benefit the right exists is known as the person of inherence.
They may be an fixed individual, like the person who buys a property or it may be an
indeterminate self, such as unborn child, societal and animal rights.
b. Person of Incidence
Also known as duty-holder or the subject of duty.
This is a person who has a correlative duty to fulfill the right held by the person of inherence.
Person of incidence is determinate in case of 'rights against personam' but indeterminate in
'rights against rem'.
c. Content of the right
It implies what the right actually is?
Contents of a right is the implication on what to do and what not to do by the person of
incidence such that the person of inherence could enjoy his right.
It exists in a expressed form such that of law, declarations or social customs. It usually points
out an act or omission to be done by the duty holder to fulfill the right of another person.
d. Subject matter of right
It is the object over which the right is exercised.
It may be physical objects such as the land and the building or a legal concept such as
trademark and company.
e. Title
It is the event or a fact that has vested the right in it's owner.
It can be summed up as the points of inheritance of the right, the circumstancial change that
lead to the person of inherence having a valid claim over the subject matter of the right while
at the same time person of incidence incurs the duty to do so.
Classification of Rights
Even though all rights exists to protect the interest of individuals that work for the welfare of the
society, they can be classified to various categories based on their title, nature of recognition and
enforcement. Some of these categories are as mentioned below:
a. Human Rights
Title: By virtue of birth.
Recognition: No recognition by laws or the state required.
Enforcement: International and National Framework.
Application: Universal
Human rights are moral principles or norms for certain standards of human behaviour and are
regularly protected in municipal and international law. Human Rights are those rights that a
person has valid claim to simply by the virtue of his being. They are equally available for those
born as humans.
They are commonly understood as inalienable, fundamental rights "to which a person is
inherently entitled simply because she or he is a human being" and which are "inherent in all
human beings", regardless of their age, ethnic origin, location, language, religion, ethnicity, or
any other status.These rights need not be granted or recognized by the law, for they are available
naturally to a person but the state is required to enforce them. Human Rights have an universal
jurisdiction i.e, they are same for all human beings around the globe.
They are applicable everywhere and at every time in the sense of being universal, and they
are egalitarian in the sense of being the same for everyone. They are regarded as requiring
empathy and the rule of law and imposing an obligation on persons to respect the human rights
of others, and it is generally considered that they should not be taken away except as a result
of due process based on specific circumstances.
It arises from the 'Natural Rights Philosophy' which states that all men were born equal and thus
they should be treated equal. Locke believed "Life, Liberty and Property" to be inalienable
natural rights.
National Human Rights Commission Nepal was established in 2000 to oversight the violation of
human rights in Nepal. It works in collaboration with Office of the UN High Commissioner for
Human Rights.
Recognised by International Instruments such as;
Universal Declaration of Human Rights (UDHR) 1948
International Convention on Civil and Political Rights (ICCPR) 1966
International Convention on Economic Social and Cultural Rights (ICESCR) 1966
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1981
b. Fundamental Rights
Title: By promulgation of constitution.
Recognition: Constitutionally Guaranteed
Enforcement: Constitutional and legal remedies
Application: Territorial
Those rights which are recognized by the state as the basic necessities of a minimal life and
guaranteed by the constitution such that even the underprivileged can have it is known as basic/
fundamental rights.
The idea behind constitutionally guaranteeing right is that even the government and those in
power must not be able to encroach those rights. Courts have a special duty to uphold the
fundamental rights and protect them from encroachment by the political power.
Violation of Constitutional rights are remedied by the constitution itself. People can follow the
laws made to enforce such rights to seek it's application but if the state is not able to provide it or
if the state violates such rights, writ jurisdiction can be sought.
Article 16 to 46 of Nepalese Constitution lays down the fundamental rights of a Nepali citizen
where Article 46 provides for the rights of constitutional remedies for violation of fundamental
rights.
Art 133: The Supreme Court shall, for the enforcement of the fundamental rights conferred by
this Constitution, for the enforcement of any other legal right for which no other remedy has
been provided or for which the remedy even though provided appears to be inadequate or
ineffective, or for the settlement of any constitutional or legal question involved in any dispute of
public interest or concern, have the extraordinary power to issue necessary and appropriate
orders to enforce such rights or settle the dispute. (Referred by Art. 46)
Article 47 says that: State shall make laws to enforce fundamental rights listed in constitution
within 3 years of promulgation of constitution. This sadly has not happened yet.
c. Legal Rights
Title: By promulgation of laws
Recognition: Legally Provisioned
Enforcement: Legal remedies
Application: Territorial
Legal Rights are those rights that are provisioned by the law promulgated by a sovereign
authority. Since, it is acted and passed by a national authority, it's application is also territorial.
State mechanism have a direct and indirect involvement in the provisioning of legal rights. State
makes and enforces all the public laws but rights and duties are also created by individuals
through their own interaction or contract, which is also enforceable through state.
Normal course of action is usually followed against legal wrong i.e, violation of legal rights.
Unlike fundamental and human rights, writ jurisdiction is not entertained unless there is a
immediate necessity to stop the legal wrongs.
E.g; Copyright Act 2059 legally recognizes and protects the creative right of an individual over
his work of literature, art, music, etc.
E.g; Existence of right and duties under a valid contract is the example of state indirectly
creating legal rights and duties.
Differentiate Legal and Moral Rights
Basis of differentiation Legal Rights Moral Rights
Title By virtue of law By virtue of ethical
circumstances
Recognition Recognition comes from
promulgated acts of
parliament.
Recognition comes from the
opinion of people.
Application Territorial No defined territory
Clarity Clear and consolidated Not clearly mentioned. Vague
or ambiguous
Guided by Positive Law Natural Law
Violation is Legal Wrong Moral Wrong
Enforcement Enforced by state Enforced by society through
public opinion
Theories of Rights
a. Will Theory
Propounded by H.L.A Hart
This theory says that the purpose of law is to grant the individual the means of self-expression or
self-assertion. Therefore, right emerges from the human will.
A will theorist asserts that the function of a right is to give its holder control over another’s duty.
To have a right is to have the ability to determine what others may and may not do, and so to
exercise authority over a certain domain of affairs.
Will theory implies that, "Right gives it's owner control over another person's correlative duty".
So, it depends on the will of an individual whether he wants to claim or enforce his rights or not.
Since individual has a choice whether to enforce his rights or not it is also known as choice
theory of rights.
Right holder person is seen as a 'Small Scale Sovereign' in the sense that he has an choice to
assert his will. So, he must be a competent person in order to do so.
E.g; Holding someone to a promise.
Criticism
Unwaivable Rights: These are the rights that the holder can not give away as a part of his choice.
E.g; Right against discrimination or Right against Slavery. Holder doesn't have a choice against
these rights.
Rights of Incompetents: Minors, animals and insane person can not control the other party to
perform a duty or discharge them.
Scholar Definitions
Right is a range of actions assigned to a particular will within the social order established by the
law. A right, therefore, supposes a potential exercise of power in regard to things or persons. –
Vinogradoff
Right is a capacity residing in one man of controlling the actions of another with the assent and
the assistance of state. – Holland
A party has a right when others are bound or obliged by law to do or forbear towards or in regard
of him. - Austin
A legal right is nothing but a permission to exercise certain natural powers and upon certain
conditions to obtain protection, restitution or compensation by aid of public force. – Justice
Holmes
Right is an individual power or authority, in the sphere in which his will rules, with our
concurrence. Each Jural relation is a relation between rights and person determined by rule of
rights (Law). –Savigny
Legal right is a power which is that power which a man has make a person or persons do or
refrain from doing a certain acts, so far as the power arises from the society imposing legal duty
upon others. – Gray
Legal right is power over an object which, by means of this right, can be subjected to the will of
person enjoying the right. – Puchta
b. Interest Theory
This theory was propounded by Ihering.
Right is a legally protected interest. Thus identifying the subject matter of protection as interest
of the people and not their wills. For an interest to be protected as rights, it must hold certain
degree of importance to the person and the society.
In protecting the interest of a party, right creates duties that must be followed by the others. Duty
holders obey the rights not because right holders have control but the said right serves the
purpose of social utility and benefits the society. So, it is also called utilitarian or the benefit
theory of rights.
It criticizes will theory on the basis that, right owners have rights not because they have a choice
to enforce them but because it makes them better off. It also accommodates the shortcomings of
the will theory; as the interests of incompetents are also protected and rights can not be waived
because they represent interests of people.
E.g; Property right is not protected as the will of people rather as an interest recognition of which
makes the society better off.
E.g; Promisee has an interest in performance. So, he has rights.
Criticism
Degree of importance : It is not clear as to what degree of importance an interest must carry in
order to be recognized as right.
Interests without rights : People do not have rights in everything in which their interest is
attached. E.g; A husband doesn't have an right in the lottery won by her woman, even though he
has substantial interest in it.
Rights without interests : People may not have interests in the things or topic they have rights in.
E.g; A judge has the right to sentence a convict even though he does not have a substantial
interest attached to it.
Scholar's Definition
A right is an interest recognized and protected by a rule of right (law). It is an interest, respect for
which is a duty, and disregard of which is a wrong. A legal right must obtain not merely legal
protection, but also legal recognition. – Salmond
An interest or an expectation granted by law. - Buckland
Protection of human interests is the chief purpose of social organization. Rights are legally
protected interests. – Ihering
c. Hybrid or Reconcilliaton theory
CK Allen, Jellinek and Dr. Sethna tried to reconcile the idea put forward by will theory and
interest theory. According to them, essence of legal right seems to be neither legally guaranteed
power by itself nor legally protected interest by itself.
Human wills doesn't operate in vacuum and interests are object of human desire. An interest is
the formal expression of will of individual or group. A correct theory of rights must take into
consideration both elements; wills and interests.
Human wills are always directed towards certain ends and these ends are nothing but certain
interests. So, rights represent both wills and interests of individuals.
Scholar Definitions
Right is the will power of a man applied to a utility or interests recognized and protected by a
legal system. – Jellinek
Rights are the legally guaranteed power to realize an interest – Allen
d. Social Solidarity Theory
Duguit was the main proponent of this theory.
Social solidarity means social cohesion based upon the dependence which individuals have on
each other in more advanced societies. It implies that man can not exist without interdependence
on fellow men, so social interdependence and cooperation are very important for human
existence.
The purpose of law is to promote social solidarity between individuals. Duguit claimed that any
law that doesn't promote social solidarity is a bad law. Every man has the duty to promote social
solidarity.
So, Duguit asserts that "No one has any other right but to do his duty". Furthermore, social
solidarity demands that the personal interests of the individual must align with the social interests
such that the social solidarity is preserved. Duguit said that man and society has no conflict of
interests.
If people only focus on their duty, then their right will be met by others in the form of their duty.
So, Right is a mere hypothesis and it must be removed from the legal vocabulary, said Duguit.
Criticism
Conflict of Interest: People's interest does not align with the social interest at all times. E.g;
Freedom of choice and freedom of expression may go on to clash with the social interest.
No Right: Realization of right is what makes people obey their duty. To say rights need not be
claimed or controlled by the holder is one thing but to claim that there's no right is a bit of a
stretch.
e. State theory
This theory suggests that rights come from the concession granted to them by the state. It is a
privilege offered by the state and only the state has the power to issue or redact them. Thus, right
comes with the conditions stipulated by the state known as duties.
State is the only authority that is allowed to enjoy rights originally. Other individuals and citizens
get their rights as granted by the state in the form of constitution, laws and orders. Thus,
individual has no rights independent of their state.
Legal rights however comes through parliament and government, thus it can be said to have
come from the state but the idea that only state has rights can not be entertained.
Criticism
Natural Rights: Natural rights and human rights are available equally to each individual by virtue
of their birth and can claim it against the state. In a day and age when there are various agencies
to enforce human rights, it will be naïve to apply the authoritarian idea of only state having the
rights.
Against Democracy: Since, citizens are considered the sovereign of states in democracy, it is
against this idea to claim that state gives people rights.
Features of Rights
a. Rights exist only in society. These are the products of social living.
b. Rights are claims of the individuals for their development in society.
c. Rights are recognized by the society as common claims of all the people.
d. Rights are rational and moral claims that the people make on their society.
e. Since rights are here only in society, these cannot be exercised against the society.
f. Rights are equally available to all the people.
g. The contents of rights keep on changing with the passage of time.
h. Rights are not absolute. These always bear limitations deemed essential for maintaining
public health, security, order and morality.
i. Rights are inseparably related with duties. There is a close relationship between them
“No Duties No Rights. No Rights No Duties.” “If I have rights it is my duty to respect the
rights of others in society”.
j. Rights need enforcement and only then these can be really used by the people. These are
protected and enforced by the laws of the state. It is the duty of a state to protect the
rights of the people.
Kinds of Rights
a. Positive and Negative rights
Those rights, which require the person of incidence to do something in order to fulfill the content
of the rights is known as Positive rights. E.g; Right of creditor to receive money from the debtor.
Those rights, which forbears the person of incidence from acting in certain manner in order to
fulfill the content of the rights is known as negative rights. E.g; Right to freedom, implies that
the others have the duty to not interfere.
b. Perfect and Imperfect Right
Perfect right are those rights which are recognized by the state and also enforced and remedied
by the court. E.g; Rights created by a valid contract.
Imperfect Rights are those rights which even though recognized by the law can not be remedied
and enforced by the court. E.g; Time barred debts, Cases outside court's jurisdiction.
c. Rights in rem and rights in personam
Right in rem means a right available against the whole world. In this case, The person of
incidence is the whole world, or people in general and thus indeterminate. They are always
negative rights i.e, people must not interfere with the right-holder as a part of their duty. E.g;
Right to life, Right to property.
Right in personam means a right available against a specific individual or a group. In this case,
the person of incidence is known and determinate, thus the right can not be claimed with people
other than them. This rights can be both positive and negative i.e, requiring people to do or not to
do something to honor the right. E.g; Rights under a contract, Right of Citizenship.
d. Proprietary and Personal Rights
Rights of a person over his estate, assets, property or other monetary and financial objects are
Proprietary rights of an individual. E.g; Land, Trademark, Goodwill, Debt.
Proprietary rights are the extension of power of person over physical world. - Holland
Rights of a person over his status and personal condition are personal rights of an individual.
They constitute physical body rights like health, life and liberty. It also includes personal rights
of dignity, character too. E.g; Right to live with dignity, Right to health.
e. Vested and Contingent Rights
Vested rights are those rights which have completed all the required conditions set out by the law
and involves the immediate interest of the holder. According to Salmond, a right is vested when
all the facts have occurred which, by law, must occur. It means all formalities are complete and
nothing remains to be done in order to enjoy the rights. E.g; Right of life.
Contingent rights are those rights which require the fulfillment of certain conditions in order to
be complete and thus doesn't involve the immediate enforcement. It is a conditional right
contingent upon happening of some event. E.g; Property right of an unborn child.
f. Legal and equitable rights
Those rights which are based on the acts of parliament promulgated as laws is known as legal
rights. They were recognized by the court of common law in England.
Those rights which are based on the laws of equity are known as equitable law. It is based on the
idea that words of law might not always leads to justice. It was only recognized in the court of
chancery during it's origin in England. E.g; Covenant attached to land.
g. Principal and Accessory Rights
Principal rights are those rights which exists independently of the other rights. They are
fundamental in nature. E.g; Right to property.
Accessory rights are those rights which are dependent on the principal rights. They have an
effect on the use and exercise of principal rights. E.g; Right to lease a property.
h. Primary and Sanctioning Rights
Those rights which exists independent of a wrong (violation of rights) being committed is known
as primary rights. They can be either rights in rem or rights in personam. E.g; Right to religion.
Sanctioning rights are those rights that is created when a wrong is committed. They are always
rights in personam. E.g; Right to bring a case for not allowing entry in temple.
i. Rights in re propria and rights in re aliena
Right of a person over his own personal belonging and property is known as rights in re propria.
E.g; Sell, Use, Dispose of Property.
Right of a person over the property of another person is known as rights in re aliena. These rights
create encumberance (limitations) on the property rights of another person.
E.g; Lease – When a property is leased to other person, the tenant has the right of possession.
Servitude – A person can use the property of another person to get to his house/land. It includes
right of passage of light, right of way, right to reach watershed.
Security – Right to retain possession of a object to secure the loan granted by creditor. E.g; Gold
backed Loan
Trust – It is when the property is managed not for the benefit of owner but the third parties. E.g;
Guthi.
1.2 Duties
As we have already discussed that rights of a person imposes duty upon others to act or not act in
certain manner such that the right is honored. Person of incidence must follow their duties in
order to fulfill the rights of person of inherence. Since, not acting to honor the rights of another
person is a commission of wrong, duty can be also called the opposite of wrong.
According to Salmond, there can be no right without the corresponding duty and no duty without
the corresponding right. A person owes duty by reason of his status or position in the society. A
person has a duty when he is under an obligation to do or omit to do something. Individual's duty
is respect towards the rights of another.
A person follows his duty, not for his own interest but for the interest of the other.
Article 48. Duties of citizens: Each person shall the following duties:
a. Protect nationality, sovereignty and integrity of Nepal by pledging allegiance to
the nation,
b. Abide by the constitution and law,
c. Compulsorily enlist when the state needs the service.
d. To protect and conserve public property.
Definitions
Duty is the act or omission that the person of incidence must do in order to oblige with the rights
of another person.
Duty is an act of compliance shown towards the rights of other which entitles the person to
similar compliance of his rights.
Duties are the things and activities that a person owes to other people as a part of society.
Scholar's Viewpoint
Duty is an obligatory act, that is to say, it is an act opposite of which would be wrong.
Commission of wrong is the breach of duty and the performance of duty is avoidance of wrong.
– Salmond
A duty is an act or forbearance compelled by the state in respect of a right vested in another and
breach of which is a wrong. - Keeton
Legal duty may be defined as the predicament of a person whose acts are liable to be controlled
by another with the assent and assistance of the state. – Hibbert
A duty is a species of obligation. People obey it due to indolence, deference, sympathy, fear and
reason. And due to psychological, social and moral pressures. - Dicey
Types of Duties
Various Scholars have adopted various strategies to classify duties based on their characteristics
as provided below.
Jenk's Classification
Based on the binding power of a duty, Jenk has classified duty into three categories:
a. Universal: These are the duties that is binding on all normal members of the community
and world at large. They are correlative to rights in rem.
b. General: These are duties binding on the classes of normal persons not voluntarily
formed.
c. Specific: These are duties binding on person who voluntarily undertakes to obey them.
Austin's Classification
Austin was of the belief that, "Not every duty has a corresponding right". Based on that, he
classified duties into two types:
a. Absolute: Those duties which do not have correlative rights are known as Absolute
duties. Hibbert added that absolute duties are owed only to the state and breach of that is
a crime, so it is remedied by punishment.
According to Austin, There are four classes of absolute duties:
i. Duties regarding self,
ii. Duty to indeterminate person or public,
iii. Duty to non-humans and
iv. Duty to sovereign or state. (because he believes there must be a superior to protect
and enforce it)
b. Relative: Those duties which have corresponding right vested in some person or definite
body. Hibbert added that relative duties are owed to persons and breach of it is a civil
wrong remedied by compensation.
Other Types
a. Moral and Legal Duties
An act or forbearance recognized as duty by rule of morality is moral duty. Defying moral duty
would be a moral wrong. It is demanded by the public opinion of the society and moral wrong
brings consequences such as social exclusion and boycott.
An act or forbearance recognized as duty by rule of laws is legal duty. Defying legal duty is a
legal wrong. Legal wrong brings the consequences of legal action by police and courts.
b. Positive and Negative Duties
Positive duty is when the person must do certain things or act in a certain way in order to fulfill
the duty. E.g; Duty to pay rent.
Negative duty is when a person must refrain from doing certain things or act in certain way to
fulfill the duty. E.g; Duty not to interfere with tenants.
c. Primary and Secondary Duties.
Duty that exists independent of other duty is known as primary duty. E.g; Duty to refrain from
causing injury.
Duty that has no independent existence and exists only for the enforcement of other duties is
known as secondary duty. E.g; Duty to pay the compensation for injury caused.
Case
1. Bhagwan Das Manandhar et. al Vs Division Road Office, Makwanpur
Plaintiff's house was about to be destroyed by the road division office for the purpose of
expansion of road. The division claimed that the land where the house was built was declared
a road in 2034BS itself, so there is no need to give compensation, but the family claimed that
the house was built in 2028BS itself.
The Court upholded the right to property of the plaintiff and asked the division to evacuate
them only by giving compensation and following eminent domain.
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+ +, (- *.$ / 01 2
2. Sunil Babu Panta & Others Vs Nepal Government et. al.
Petitioners filed for third gender people to be identified as such in their identity documents
like citizenship and to make laws in regard to third gender minority rights protection.
Justice Pawan Kumar Ojha and Balram KC's bench ordered to ordered government to make
necessary arrangements such that they can identify themselves as sexual minorities and also
ordered a committee to be formed in order to study the same sex marriage and it's impact in
society and make a recommendation.
Interrelation Between Rights and Duties
Rights and duties are closely interlinked subjects of the legal diaspora. Each right has a
corresponding duty. Therefore, there can be no duty unless there is someone to whom it is
due. On the other hand, Right imposes a duty on others such that the contents of the right is
honored. So, they exist together.
Various Jurists have supported their views that rights and duties are related. Some of the
jurists statement are as follows:
Every Right implies the active or passive forbearance by others of the wishes of the party
having the right. The act or forbearance on the part of other is called duty. – Holland
A duty is the act of forbearance which is enforced by the state in respect of a right vested in
another person and the breach of which is wrong. Every right implies co-relative duty and
vice-versa. – Keeton
We can not have a right without a corresponding duty or a duty without a corresponding
right. – Paton
There can be no duty unless there is some person to whom the duty is due. Every right or
duty involves a bond of obligation. – Salmond
Opposing view of Austin
Austin was of the view that every right implies a corresponding duty but every duty doesn't
necessarily imply a corresponding right. E.g; It is a duty of a judge to punish an offender, but
it can not imply that the offender has a right to be punished.
According to Austin, right-duty relationship between two individuals can only exist if there is
a political superior to protect and enforce it. If we regard the relationship between the state
and individual as the right-duty relationship, where is the political superior to enforce it.
Sovereign commands and the duty of citizen is to obey. Power of the state can not be called
the co-relative right against the citizen.
Austin's view is highly criticized:
- Duty to public/society is nothing but a bundle of duties towards each individual of the
community. So, individuals have a co-relative right.
- In a democratic state, state has rights against and duties towards citizens.
- Self regarding duties and duties towards non-human are duties towards the state.
Hohfield's Theory of Jural Co-relation
Right Liberty Power Immunity
Duty No Right Liability Disability
Right, Power, Liberty and Immunity are various forms of rights or privileges enjoyed by a
person. Whereas Duty, No right, Liability and Disability are the control imposed on a person
as a form of obligations.
Relation between them are as follows:
a. Co-relatives
Co-relatives exists together. Existence of either in one person implies the existence of other
in another person. If A has a right, then others have duty to respect A's right. If A has
Disability (not able to act), someone has immunity.
b. Jural opposite
Jural opposite doesn't exist together. They are never held by one person at the same time. If
A has a duty, then he does not have liberty (freedom/choice) in regard to the duty owed. If A
has a power to act, then he doesn't have disability (not able to act).
c. Jural Contradiction
Jural contradiction doesn't exist at the same time in related people. If a person has something,
then it can not be that the other has another of the jural contradictions. If A has liability (to
remedy others duty) then, others can not have disability (not able to act). If A has duty, then
others can't have no right.
So, if someone has right but others do not have corresponding duty, it must be that the person
either has liberty, power or immunity.
Professor Laski's Interrelation
Laski gave four relationship of rights and duties:
i. Every right of an individual involves a corresponding duty of others. (My right implies
your duty.)
ii. Every right is a duty in itself. If an individual exercises a right, he must bear in mind
that the same right belongs to others as well. (My right imply my duty to admit a
similar rights of others).
iii. A person should not abuse the right given by law/society to him and should concern
for the promotion of social good. (I should exercise my right for the promotion of
social good.)
iv. The state is the agency for social good and it is the duty of an individual to perform
one's duties honestly. (Since the state guarantees and maintains my right, I have the
duty to support the state.)
Differences between Rights and Duties
Basis of
differentiation
Rights Duties
Definitions Rights are legal, social or ethical
principles of freedom that are entitled
for by the governing body.
Duties are responsibilities or
obligations of an individual, by
governing body, that are required to
be done by the said individual.
Based on It is based on privileges granted by the
state.
It is based on accountability of
performance or forbearance of an
act.
Objective Rights granted to a person is aimed to
expand or promote the freedom of a
person.
Duties of a person is aimed to limit
the freedom of the person while it
promotes the freedom of others.
Nature of
enjoyment
Enjoyment of right may be an optional
matter for a subject of right.
Fulfillment of duty is a must for the
subject of duty.
Fundamental
rights and
duties
Fundamental rights are the rights of
individual and obligations of the state.
Fundamental duties are the duties
of an individual and rights of the
state.