QUESTIONS AND NOTES ON RIGHTS AND DUTIES 1

QUESTIONS AND NOTES ON RIGHTS AND DUTIES 1

1.      Who said “Jurisprudence is concerned not so much which law subserves, as with the means by which it subserves them”?

Holland

2.      What are Positive and Negative duties?

When law obliges a person to do an act, the duty is called positive. When the law obliges him/her to refrain from doing an act, it is a negative duty.

3.      What are Primary and Secondary Duties?

A primary duty is one which exists per se and is independent of any other duty, e.g. duty to forebear causing injury to another. A secondary duty is one which has no independent existence but exists only for the enforcement of other duties. E.g. duty to pay damages for injury done to a person.

4.      What are Absolute and Relative duties?

Hibbert said that absolute duties are owned to the State breach of which is generally called crime and remedy is punishment. Relative duties are owned to any person other than the one who is imposing them, the breach of which is called a civil injury and remedy is by compensation.

5.      Who said that certain duties, like duties towards God and State are absolute?

Austin

6.      Who said “Duty is an act or forbearance compelled by the State in respect of a right vested in another and the breach of which is a wrong”?

Keeton

7.       Who said |”There can be no duty without a right any more than there can be a husband without a wife or parent without a child”?

Salmond

8.      Who defined Right as “An interest recognized and protected by a rule or justice? It is an interest in respect of which there is a duty and the disregard of which is wrong”?

Salmond

9.      Who said “A party has a right when another or others are bound or obliged by law to do or forbear towards on in regard of him”?

Austin

10.  Who said “Right is a capacity residing in one man of controlling with the assent and assistance of the State the actions of others”?

Holland

11.  Who defined right as “A legally protected interest”?

Ihring

12.  Who said “An individual is said to have a right if he by his own force or persuasion can carry out his wishes, other by his own acts or by influencing the acts of others, he has the right to carry out his wishes. It is on this analogy that `right` is called a `legally protected interest`”?

Holland

13.  Who said “Right is a range of action assigned to a particular will within the social order established by law, a right, therefore supposes a potential exercise of power in regard to things or persons, when a man claims something as his right, he claims it as his own or as due to him”?

Vinogradoff

14.  Who said “Right is nothing but a permission to exercise certain natural powers and upon certain conditions to obtain protection, restitution or compensation by the aid of public force”?

Holmes

15.  Who said “A right is that power which a man has to make a person do or refrain from doing a certain act or certain acts, so far as the power rises from society imposing a legal duty upon a person or persons”?

Gray

16.  Who opined that the basis of a right is human will?

Duguit

17.  Who denied the existence of right?

Duguit

18.  Who said “Right as a physical power, which through the commands of authority, is not only morally strengthened, but also can protect its power against a transgressor by the application of compulsion or evil”?

Kirchmann

19.  Who said “Right is a freedom allowed and power conferred by law”?

Pollock

20.  Who said “Rights are powers which it is for general well being that the individual should possess”?

Green

21.  Who said “Right is the authority to compel”?

Kant

22.  In which case the Supreme Court defined legal right as “In a strict sense legal rights are co relative of legal duties and are defined as interests which the law protects by imposing corresponding duties on others”?

State of Rajasthan v Union of India

23.  Describe the `Will Theory of Legal Right`

Supported by Hegel, Kant, Hume, and others. A right is an inherent attribute of the human will. The subject matter of right is derived from human will. The theory suggests that it is through a right that a man expresses his will over an object.

24.  Who said “A legal right is a power over an object which by means of his right can be subject to the will of the person enjoying the right”?

Putcha

25.  What is the interest theory of right?

It was propounded by Ihring. He asserts that basis of legal right is not will but `interest`. The main object of law is protection of human interests and to avert a conflict of their individual interests.

26.  What are the essential elements of a legal right as per Salmond?

a.      Person of inherence. The person in whom right is vested, who is the owner of right.

b.      Person of incidence: The person against whom right is availed of, who has a co relative duty. He is also called subject of duty.

c.       Content of right. The act or omission which is obligatory on the person bound in favor of the person entitled.

d.      Subject matter of right: Something to which the act or omission relates the object over which a right is exercised.

e.      Title of right. Every legal right has a title. For certain facts or events which are events by reason of which the right has become vested in its owner. Salmond added this 5^th element of right.

27.  Who said that there are certain rights which have no objects?

Holland

28.  Who said that there are only four elements of right and did not consider title as the fifth element of right?

Keeton

29.  Brief on Right and Liberty:

Right is the benefit which a person derives from the absence of legal duty. It may be called liberty. Liberty or privilege denotes absence of restraints. Liberty of a person consists in his freedom to do or not to do an act as he pleases.

30.  Who said “The liberty of acting according to one`s wish would be illusory if it were not protected from obstruction”?

Austin

31.  Brief on Power and Subjection:

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 of other persons…. Fitzgerald.

32.  Brief on Immunity and Disability:

Exemption from the power of another is called `immunity`.

33.  What are perfect and imperfect rights?

Salmond: A perfect right is one which corresponds to a perfect duty. It is not only recognized by law but also enforced by it. Imperfect right is one which though recognized, is not enforceable by law.

34.  What are positive and negative rights?

The difference depends upon the nature of co relative duty it carries with it. In case of a positive right, the person subject to the duty is bound to do something whereas in case of negative right, others are restrained from doing something. The positive right is a right to be positively benefitted but a negative right is merely a right, not to be harmed.

35.  What are Antecedent and Remedial rights?

Antecedent right is one which exists irrespective of any wrong having been committed. A right which accrues when an antecedent right is violated is called a remedial right. Antecedent right may either be a right in rem or right in personem.

36.  What are Rights in Rem and Rights in Personem?

A right which is enforceable against the world at large is right in rem, while a right which is enforceable against a particular person is right in personem.

37.  What re Proprietary and Personal Rights?

The aggregate of a man`s proprietary rights constitutes his estate, his assets, his property and has monetary value. Personal rights are elements in one`s well being and have no monetary value.

38.  What are rights in re propria and rights in aliena?

Salmond: A right in aliena is one which limits or derogates from some more general right belonging to some other person in respect of same subject matter (right to some other`s property). All other rights which are not thus limited are jura in re propria (right to one`s own property).

39.  What are Principal and Accessory rights?

The existence of principal rights is independent of any other rights but accessory rights are ancillary to principal rights and have a beneficial effects on the principal right.

40.  What are Primary and Sanctioning Rights (Antecedent and Remedial Rights)?

Primary rights are also called antecedent or substantive rights. Sanctioning rights are called remedial or adjectival rights. Sanctioning rights originate from some wrong, i.e. from violation of other`s rights, whereas primary rights have source other than wrongs, like Fundamental Rights under Constitution.

41.  What is jus ad rem?

A right which originated from other right. It is always right in personem.

42.  Who criticized Hohfelds jural postulates on the ground that there is no justification for a co-relative of a legal right?

Stone

43.  Hohfeld`s Tables. Memorize the following in sequence.

I.                    Table `A`

                                                              i.      Right/Claim

                                                            ii.      Liberty/Privilege/No Duty

                                                          iii.      No Claim/No Right

                                                           iv.      Duty

Arrange them in as four corners of a square, in clockwise direction. Right/Claim as the top left corner, Liberty/Privilege/No Duty as top right comer, No claim/No Right as lower right corner and Duty as the lower left corner.

II.                  Table `B`

a.      Power

b.      Immunity

c.       Disability

d.      Liability

Arrange them in as four corners of a square, in clockwise direction. Power as the top left corner, Immunity as the top right corner, Disability as the lower right corner and Liability as the lower left corner.

The `Vertical Arrows` show jural co relatives, horizontal arrows show jural contradictories and the diagonal arrows show jural opposites.

QUESTIONS AND NOTES ON RIGHTS AND DUTIES 1

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