CLAT PG Exam > CLAT PG Notes > Jurisprudence > Cheat Sheet: Rights and Duties
Cheat Sheet: Rights and Duties
1. Nature and Concept of Rights
1.1 Definition of Rights
| Jurist | Definition |
|---|---|
| Salmond | An interest recognized and protected by law, respected by others and correlating to a duty |
| Holland | A capacity residing in one person of controlling, with the assent and assistance of the state, the actions of others |
| Austin | A faculty which resides in a determinate party or parties by virtue of a given law and which avails against a party or parties |
| Gray | Not an interest itself but the means by which enjoyment of an interest is secured |
| Hohfeld | A claim of one person against another with a correlative duty |
1.2 Essential Elements of Rights
- Right-holder (subject of right)
- Duty-bearer (person bound by corresponding duty)
- Content or subject matter of right
- Object against which right is available
- Title or basis of right (source from which right flows)
1.3 Theories of Rights
| Theory | Key Features |
|---|---|
| Will Theory (Savigny, Holland) | Right is power of will; emphasis on individual autonomy and choice; criticized for excluding incompetent persons |
| Interest Theory (Ihering, Salmond) | Right is legally protected interest; broader scope including animals and incompetent persons; criticized for vagueness of 'interest' |
| Natural Rights Theory | Rights inherent in human nature; exist independent of state recognition; basis for fundamental rights |
| Positivist Theory | Rights created and recognized by state; no rights without law; challenged by natural law theorists |
2. Classification of Rights
2.1 Salmond's Classification
2.1.1 Perfect and Imperfect Rights
| Type | Description |
|---|---|
| Perfect Rights | Recognized and enforced by law; correlative duty imposed and enforceable; legal remedy available |
| Imperfect Rights | Recognized by law but not enforceable; no legal remedy; examples: time-barred debts, statute-barred claims |
2.1.2 Positive and Negative Rights
| Type | Description |
|---|---|
| Positive Rights | Correspond to positive duty of another to do something; require active performance |
| Negative Rights | Correspond to negative duty of others to abstain; require forbearance or non-interference |
2.1.3 Real and Personal Rights (Rights in rem and in personam)
| Type | Description |
|---|---|
| Rights in rem | Available against the world at large; indeterminate persons bound; examples: ownership, reputation, liberty |
| Rights in personam | Available against specific determinate persons; examples: contractual rights, trust rights |
2.1.4 Proprietary and Personal Rights
| Type | Description |
|---|---|
| Proprietary Rights | Economic value; transferable; can be inherited; examples: property rights, intellectual property |
| Personal Rights | No economic value; not transferable; examples: right to life, liberty, reputation |
2.1.5 Principal and Accessory Rights
| Type | Description |
|---|---|
| Principal Rights | Independent existence; not dependent on other rights |
| Accessory Rights | Depend on and support principal rights; example: mortgage (accessory to debt) |
2.2 Austin's Classification
- Rights in rem: available against all persons indefinitely
- Rights in personam: available against specific person or persons
- Primary rights: independent existence
- Secondary rights: arise from violation of primary rights; remedial in nature
2.3 Other Important Classifications
2.3.1 Legal and Equitable Rights
| Type | Description |
|---|---|
| Legal Rights | Recognized and enforced by common law courts |
| Equitable Rights | Recognized and enforced by equity courts; arise when common law remedy inadequate |
2.3.2 Vested and Contingent Rights
| Type | Description |
|---|---|
| Vested Rights | Presently existing; holder entitled to immediate possession or enjoyment |
| Contingent Rights | Dependent on uncertain future event; may or may not vest |
3. Hohfeld's Scheme of Jural Relations
3.1 Eight Fundamental Legal Concepts
| Concept | Definition |
|---|---|
| Right (Claim-Right) | One party's entitlement to performance or forbearance from another |
| Duty | Legal obligation to perform or forbear; correlative of right |
| Privilege (Liberty) | Freedom to do or not do something without legal obligation |
| No-Right | Absence of claim; correlative of privilege |
| Power | Ability to alter legal relations by act of will |
| Liability | Subjection to having one's legal relations altered by another; correlative of power |
| Immunity | Freedom from another's power to alter legal relations |
| Disability | Absence of legal power; correlative of immunity |
3.2 Jural Opposites and Correlatives
| Correlatives | Opposites |
|---|---|
| Right - Duty | Right - No-Right |
| Privilege - No-Right | Privilege - Duty |
| Power - Liability | Power - Disability |
| Immunity - Disability | Immunity - Liability |
3.3 Significance of Hohfeldian Analysis
- Clarifies ambiguity in legal terminology and concept of 'right'
- Distinguishes claim-rights from privileges, powers, and immunities
- Establishes precise correlatives and opposites in legal relations
- Foundation for analytical jurisprudence and rights analysis
- Criticized for excessive formalism and neglecting substantive content
4. Nature and Concept of Duties
4.1 Definition of Duty
| Jurist | Definition |
|---|---|
| Salmond | An obligatory act, the opposite of which would be a wrong; correlative of right |
| Holland | A compulsion to forbear from or perform certain acts |
| Austin | Being bound or obliged to act or forbear in a particular manner |
4.2 Essential Elements of Duty
- Duty-bearer: person on whom duty is imposed
- Act or forbearance: what must be done or not done
- Right-holder: person to whom duty is owed (may be determinate or indeterminate)
- Legal sanction: consequence for breach of duty
4.3 Relationship Between Rights and Duties
- Every legal right corresponds to a legal duty
- Rights and duties are correlatives (Hohfeld)
- No right can exist without a corresponding duty
- Duty may exist without corresponding right (absolute duties)
- Same person cannot have right and duty in same transaction (merger principle)
5. Classification of Duties
5.1 Positive and Negative Duties
| Type | Description |
|---|---|
| Positive Duties | Obligation to do some act; active performance required; examples: duty to perform contract, pay tax |
| Negative Duties | Obligation to forbear or abstain; non-interference required; examples: duty not to defame, not to trespass |
5.2 Primary and Secondary Duties (Austin)
| Type | Description |
|---|---|
| Primary Duties | Imposed by law initially; arise from legal relations or status |
| Secondary Duties (Sanctioning Duties) | Arise from breach of primary duty; remedial in nature; examples: duty to pay damages, compensation |
5.3 Legal and Moral Duties
| Type | Description |
|---|---|
| Legal Duties | Imposed and enforced by law; violation leads to legal sanction; external compulsion |
| Moral Duties | Based on morality and conscience; not legally enforceable; internal compulsion; examples: charity, gratitude |
5.4 Absolute and Relative Duties (Salmond)
| Type | Description |
|---|---|
| Absolute Duties | Not correlative to any right; owed to indeterminate persons or state; examples: criminal law duties, duty not to commit public nuisance |
| Relative Duties | Correlative to specific rights; owed to determinate persons; breach gives cause of action to right-holder |
5.5 Public and Private Duties
| Type | Description |
|---|---|
| Public Duties | Owed to state or community; breach affects public interest; examples: duty to pay taxes, obey criminal law |
| Private Duties | Owed to specific individuals; breach affects private interests; examples: contractual duties, tortious duties |
6. Special Topics in Rights
6.1 Ownership
6.1.1 Definition
| Jurist | Definition |
|---|---|
| Salmond | Relation between person and object forming subject matter of the right; includes right to possess, use, alienate |
| Austin | Right indefinite in point of user, unrestricted in point of disposition, unlimited in point of duration |
| Pollock | Entirety of powers of use and disposal allowed by law |
6.1.2 Essential Elements of Ownership
- Right to possess (jus possidendi)
- Right to use and enjoy (jus utendi)
- Right to consume or destroy (jus abutendi)
- Right to alienate or dispose (jus disponendi)
- Indeterminate duration
- Residuary character (elasticity of ownership)
6.1.3 Kinds of Ownership
| Classification | Types |
|---|---|
| By Subject Matter | Corporeal ownership (tangible objects); Incorporeal ownership (intangible rights) |
| By Object | Material ownership (things); Immaterial ownership (rights) |
| By Number | Sole ownership (one owner); Co-ownership (multiple owners with undivided shares) |
| By Duration | Absolute ownership (unlimited); Limited ownership (restricted in time or extent) |
| By Nature | Legal ownership (recognized by law); Equitable ownership (recognized by equity) |
| By Status | Vested ownership (present); Contingent ownership (dependent on future event) |
6.2 Possession
6.2.1 Definition
| Jurist | Definition |
|---|---|
| Salmond | Continuing exercise of claim to exclusive use of object |
| Savigny | Intention to possess (animus) plus physical control (corpus) |
| Pollock & Wright | Possession is a continuing relation between person and object |
6.2.2 Essential Elements
- Corpus possessionis: physical control or custody
- Animus possidendi: intention to possess and exclude others
- Both elements must coexist
6.2.3 Possession versus Ownership
| Possession | Ownership |
|---|---|
| Matter of fact | Matter of right |
| Visible | Invisible |
| Temporary | Permanent (relatively) |
| Can exist without ownership | Can exist without possession |
6.2.4 Kinds of Possession
| Type | Description |
|---|---|
| Corporeal Possession | Physical control over material object |
| Incorporeal Possession | Possession of intangible rights |
| Mediate Possession | Through another person (agent, servant) |
| Immediate Possession | Direct physical control |
| Adverse Possession | Against true owner; hostile and open; may ripen into title |
6.3 Title
- Means by which ownership is acquired
- Legal basis or source of right
- Original title: acquired independently (occupation, accession, prescription)
- Derivative title: acquired from previous owner (transfer, succession)
- Good title: legally valid and enforceable
- Defective title: vulnerable to challenge
7. Persons in Jurisprudence
7.1 Legal Personality
| Term | Definition |
|---|---|
| Person | Any entity capable of bearing rights and duties; subject of legal rights |
| Legal Personality | Capacity to have legal rights and obligations; status as subject of law |
7.2 Natural Persons
- Human beings recognized by law
- Personality begins at birth (some rights from conception)
- Ends at death
- All humans have legal personality (rejected Roman law distinctions)
- Capacity may be limited (minors, insane persons)
7.3 Juridical Persons (Legal Persons)
7.3.1 Definition
- Artificial entities recognized by law as having legal personality
- Not human but treated as persons for legal purposes
- Can own property, enter contracts, sue and be sued
7.3.2 Kinds of Juridical Persons
| Type | Examples |
|---|---|
| Corporations | Registered companies, universities, municipal corporations |
| Institutions | Hospitals, libraries, charitable trusts |
| Funds | Trust funds, welfare funds |
| Idols and Deities | Recognized in Indian law as juristic persons |
| Associations | Trade unions, clubs (limited personality) |
7.3.3 Theories of Corporate Personality
| Theory | Key Features |
|---|---|
| Fiction Theory (Savigny) | Corporation is artificial creation; exists only in legal contemplation; personality granted by state |
| Concession Theory | Corporate personality results from state concession; state grants and can withdraw |
| Realist Theory (Gierke) | Corporation has real existence; not fictional; possesses actual will |
| Symbolist Theory (Salmond) | Corporation is legal symbol; stands for complex set of legal relations |
| Bracket/Aggregate Theory | Corporation merely name for aggregate of members; no separate existence |
7.4 Status
| Aspect | Description |
|---|---|
| Definition | Legal position or condition of person determining rights, duties, capacities |
| Examples | Minor, married person, citizen, alien, insolvent, convict |
| Significance | Determines capacity to enter legal relations and exercise rights |
| Modification | Status may change by law, court order, or factual circumstances |
7.5 Capacity
| Type | Description |
|---|---|
| Legal Capacity | Capacity to have rights and duties; all persons possess |
| Capacity to Act | Capacity to exercise rights and perform duties; may be limited by status |
7.5.1 Incapacities
- Minors: limited contractual capacity; acts through guardian
- Persons of unsound mind: contracts voidable; property managed by guardian
- Insolvents: cannot dispose of property; administered by official assignee
- Convicts: civil rights suspended during imprisonment
- Aliens: limited rights in some jurisdictions (enemy aliens)
- Married women: historical incapacities now removed in most jurisdictions
8. Liability
8.1 Concept of Liability
| Aspect | Description |
|---|---|
| Definition | Condition of being bound to perform obligation or pay compensation; legal responsibility |
| Salmond | Liability is incidence of remedial right; obligation to make reparation |
| Austin | State of being bound by sanctioning duty |
8.2 Kinds of Liability
8.2.1 Civil and Criminal Liability
| Civil Liability | Criminal Liability |
|---|---|
| Arises from breach of civil duty | Arises from commission of crime |
| Remedy is compensation/restitution | Sanction is punishment |
| Action by injured party | Prosecution by state |
| Standard: preponderance of probability | Standard: beyond reasonable doubt |
8.2.2 Vicarious Liability
- Liability for acts of another person
- Master liable for servant's torts in course of employment
- Principal liable for agent's acts within authority
- Based on relationship and control
8.2.3 Strict Liability
- Liability without fault or negligence
- Arises from dangerous activities or special circumstances
- No need to prove mens rea or intent
- Examples: Rylands v Fletcher rule, motor accident cases, product liability
8.2.4 Absolute Liability
- Strict liability without any exceptions
- No defenses available
- Applied to hazardous enterprises
- Developed in M.C. Mehta v Union of India
8.3 Theories of Liability
| Theory | Basis |
|---|---|
| Fault-Based Liability | Liability arises from wrongful intent or negligence; mens rea required |
| No-Fault Liability | Liability independent of fault; based on causation and risk |
| Enterprise Liability | Business enterprises bear liability for risks created; compensatory approach |
8.4 Exceptions and Defenses to Liability
- Volenti non fit injuria: consent to harm
- Act of God: unforeseeable natural events
- Statutory authority: act authorized by law
- Necessity: act to prevent greater harm
- Private defense: self-defense or defense of property
- Inevitable accident: no negligence or intent
9. Fundamental Rights and Constitutional Rights
9.1 Nature of Fundamental Rights
- Constitutional rights guaranteed to citizens
- Judicially enforceable against state
- Based on natural rights theory
- Subject to reasonable restrictions
- Not absolute but supreme
9.2 Characteristics
- Enshrined in Constitution (Part III in India)
- Protected from legislative and executive encroachment
- Right to constitutional remedies (Article 32/226)
- Cannot be suspended except during emergency (some rights)
- Subject to judicial review
9.3 Classification
- Right to equality (Articles 14-18)
- Right to freedom (Articles 19-22)
- Right against exploitation (Articles 23-24)
- Right to freedom of religion (Articles 25-28)
- Cultural and educational rights (Articles 29-30)
- Right to constitutional remedies (Article 32)
9.4 Limitations on Fundamental Rights
- Reasonable restrictions in public interest
- Balance between individual liberty and social welfare
- Emergency provisions (Article 352, 356, 360)
- Not applicable to private persons (generally)
- Subject to constitutional amendments (within basic structure)
10. Human Rights
10.1 Concept
| Aspect | Description |
|---|---|
| Definition | Rights inherent in all human beings by virtue of humanity; universal, inalienable, indivisible |
| Basis | Human dignity; natural law; international consensus |
| Sources | UDHR 1948; International covenants; customary international law |
10.2 International Instruments
- Universal Declaration of Human Rights, 1948
- International Covenant on Civil and Political Rights, 1966 (ICCPR)
- International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR)
- Convention on Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW)
- Convention on Rights of the Child, 1989 (CRC)
- Convention Against Torture, 1984 (CAT)
10.3 Generations of Human Rights
| Generation | Content |
|---|---|
| First Generation | Civil and political rights; liberty-oriented; negative rights |
| Second Generation | Economic, social, cultural rights; equality-oriented; positive rights |
| Third Generation | Solidarity rights; collective rights; right to development, environment, peace |
10.4 Characteristics
- Universality: applicable to all human beings
- Inalienability: cannot be taken away
- Indivisibility: all rights equally important
- Interdependence: rights mutually reinforcing
- Non-discrimination: applicable without distinction
11. Important Maxims and Principles
| Maxim/Principle | Meaning and Application |
|---|---|
| Ubi jus ibi remedium | Where there is right, there is remedy; foundation of judicial protection |
| Nemo dat quod non habet | No one can give what he does not have; relates to title and transfer |
| Ignorantia juris non excusat | Ignorance of law is no excuse; liability not avoided by lack of knowledge |
| Actus non facit reum nisi mens sit rea | Act does not make guilty unless mind is guilty; basis of criminal liability |
| Salus populi suprema lex | Welfare of people is supreme law; justifies state restrictions on rights |
| Damnum sine injuria | Damage without legal injury; no remedy for harm without violation of legal right |
| Injuria sine damno | Legal injury without damage; actionable even without actual harm |
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