Law and You> Jurisprudence > Theories of Legal Rights
The concept of legal rights is of fundamental significance in modern legal theory. Legal rights are the common claims of people which every cultured society recognizes as essential claims for their development, and which are therefore enforced by the state. Thus, legal rights are those rights that are recognized and enforced by the state. Any violation of any legal right is punished by law. Law courts of the state enforce legal rights. These rights can be enforced against individuals and also against the government. In this way, legal rights are different from moral rights. In this article, we shall study two important theories of legal rights.
Legal rights are equally available to all citizens. All citizens enjoy legal rights without any discrimination. They can go to the courts for getting their legal rights enforced. Learned authors of Jurisprudence have defined the term in different ways.
- According to Salmond “A right is an interest recognized and protected by a rule of law.”
- According to Austin right is a “Faculty which resides in a determinate party or parties by virtue of a given law and which avails against a party or parties. Or answer to duty lying on party or parties, other than the party or parties in whom resides”.
- According to Holland “Legal right is the capacity residing in one man of controlling, with the assent and assistance of the state, actions of others”.
- According to Laski, “Right is those conditions of social life without which no man can seek in general, to be himself at his best.”
- T. H. Green explained that “Right is a power necessary for the fulfillment of man’s vocation as a moral being.”
- Beni Prasad stated that “Rights are nothing more nor less than those social conditions which are necessary or favourable to the development of personality”
- According to Pollock ”right is freedom allowed and power conferred by law”.
- According to Holmes ” a legal 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.”
- According to Buckland “A legal right is an interest or expectation guaranteed by law.”
- According to Kant“ right is an authority to compel”.
- Note: According to Prof.Duguit and Kelson, there is no such concept called legal right.
Theories of Legal Rights:
There are two main theories of legal rights: the will theory and the interest theory. Each theory presents itself as capturing an ordinary understanding of what rights do for those who hold them. Let us discuss these theories of legal rights in detail.
The Will Theory:
Herbert L.A. Hart (1907-92), a British legal scholar, is credited with developing the will theory of rights. He cited Kant as inspiring his thinking about the importance of human freedom, or liberty. Freedom is the most basic right, according to will theory. According to this theory, the purpose of the law is to grant to the citizen the means of free expression of his will. Limiting anyone’s freedom always requires the authorization of others’ rights, and the subjects of rights remain free to “claim” them or not. The will theory, also known as the “choice theory,” allows rights-holders free choice to insist upon their rights, or to waive them. Thus according to this theory right emerges from the human will. Austin, Holland, Pollock, Vinogradoff, and Holmes define legal rights from will perspective as “a capacity residing in one man of controlling with the assent and assistance of the state, the action of others”.
The will theory captures the powerful link between rights and normative control. 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. For example, your right to some land is your freedom to do with it as you wish. Everyone is wrong to interfere with your freedom unless they have a right. If someone uses your land without having a right, you are free to allow it or to choose to prevent it by claiming the protection of your right to legal authorities.
Criticism:
- No inalienable rights: The freedom protected by rights includes the freedom to waive any right, including freedom to accept payment for waiving rights. Rights-holders could bargain away any of their rights.
- Right-holders’ cognitive capacities: Some persons have a legal rights even though they may not have a will to protect the right such as infants or lunatics. Having a right requires understanding how to claim or waive it, which infants or lunatics cannot understand, so, like animals, they cannot have rights. Counter argument to this criticism is that even though infants and lunatics do not have a will to protect their rights, their guardians or trustees have the will to do so.
The Interest Theory:
Jeremy Bentham (1748-1832) initiated the interest theory. This theory was propounded by the German jurist, Rudolf von Ihering (1818-1892) and further developed by John Salmond. As a utilitarian, Bentham was critical of the idea of moral rights but conceded that the rights could be useful in legal systems. Someone would have a right to something (x), against a second person, if that person had a legal duty to provide the first person with x. For example, on Bentham’s interest theory, you have a right to vote if someone is legally required to provide you with the opportunity to vote, and count your ballot, and so on.
According to Ihering, the purpose of the law is to protect the interest and not the ‘wills’ of the citizens. According to Salmond, a right is an interest recognized and protected by the rule of law but not necessarily, one that is enforceable. Most legal rights are enforceable but enforceability is not essential to the conception of a right. For example in time-barred debt, the remedy is barred but the right is not extinguished.
In Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625 case, the Court observed: “The law may provide a mechanism for enforcement of obligation (right) but the existence of obligation (right) does not depend on the creation of such mechanism. The obligation (right) exists prior to and independent of the mechanism of enforcement.”
More recent philosophers developing the interest theory, also known as the “benefit theory,” think that basic moral duties to respect others’ essential interests, such as life, and liberty, serve as the basis of moral rights. According to Joseph Raz, a recent interest theorist: “X has a right if and only if X can have rights, and other things being equal, an aspect of X’s well-being (his interest) is a sufficient reason for holding some other person(s) to be under a duty.”
The interest theory is more capacious than the will theory. It can accommodate both unwaivable rights (the possession of which may be good for their holders) and the rights of incompetents (who have interests that rights can protect). The interest theory also taps into the deeply plausible connection between holding rights and being better off.
Criticism:
- Limiting interests: Specifying the set of interests that are sufficient reasons for rights is nearly impossible. The proliferation of interest based rights continues: welfare rights; healthcare rights; women’s rights; animal rights; etc.
- Third-party interests: If you promise to tend a neighbour’s child, you have a duty, and the child has an interest in your doing your duty; so the interest theory says the child has a right to your care. But only the neighbour has the right.
Hybrid or Synthetic Theory:
To remove the demerits of will theory and interest theory, jurists C. K. Allen and Dr. Sethna suggested the synthesis of the two theories of legal rights as the best approach. According to them, the human will is always directed towards certain ends; and these ends are nothing but certain interests. Hence, C. K. Allen defines a legal right as “the will power of man applied to a utility or interest recognized and protected by a legal system.”
Distinguishing Between Will Theory and Interest Theory:
| Will Theory | Interest Theory |
| Herbert L.A. Hart developed the will theory of rights. | Jeremy Bentham (1748-1832) initiated and the German jurist, Rudolf von Ihering propounded Interest Theory. It is further developed by John Salmond. |
| According to this theory, the purpose of the law is to grant to the citizen the means of free expression of his will. | According to Ihering, the purpose of the law is to protect the interest and not the ‘wills’ of the citizens. |
| It does not support any inalienable rights. It does not accommodate the rights of incompetents. | It can accommodate both unwaivable rights and the rights of incompetents. |
Distinguishing Legal Rights and Moral Rights:
| Legal Rights | Moral Rights |
| Legal rights are the common claims of people which every cultured society recognizes as essential claims for their development. | Moral Rights are those rights that are based on human consciousness. |
| They are recognized and enforced by the State. | They may be or may not be recognized and enforced by the State. |
| There are legal sanctions behind legal rights | There are moral, social, or disapprobatory sanctions behind moral rights. |
| Example: Right to contract, Right to legal counsel, Right to free speech | Examples: Right to life, Right to worship, Right to equality |
Some concepts related to Legal Rights:
Ubi Jus Ibi Remedium
This Latin maxim is a general principle of law which means ‘where there is a right, there is a remedy’. The existence of a right implies the existence of a remedy for the enforcement of that right or redressal on its infringement. The law gives this remedy to protect it or damages in case of loss.
Injuria Sine Damnum
This Latin legal maxim refers to legal injury without damage or infringement of a legal right which calls for legal action without any damage being caused. Courts provide a remedy for the infringement of Legal Rights. The liability is imposed upon the person who violates such rights.
Damnum Sine Injuria
This maxim is the reverse of the above maxim. It means damage caused without any legal injury. Thus the harm suffered is not caused due to violation of any legal right and as such, no action lies under law.
Conclusion:
Legal rights are those rights that are recognized and enforced by the state. Any violation of any legal right is punished by law. Law courts of the state enforce legal rights. There are two main theories of legal rights: the will theory and the interest theory. Each theory presents itself as capturing an ordinary understanding of what rights do for those who hold them. According to will theory, the purpose of the law is to grant to the citizen the means of free expression of his will. According to Ihering, the purpose of the law is to protect the interest and not the ‘wills’ of the citizens. To avoid criticism of these theories of legal rights, C. K. Allen and Dr. Sethna proposed a synthesis of these two theories of legal rights.