All people have rights, which the law will protect, and they also have duties which the law will enforce. A duty is often the converse of a right. The concept of rights may also be contrasted with wrongs, but law is concerned only with legal wrongs and not moral wrongs just in the same manner as it is concerned with legal duties and not moral duties. Apart from the distinction of legal and moral duties, duties could also be divided into positive and negative. While positive duties require the performance of certain functions, negative duties demands refraining from carrying out certain functions.
Duties could also be classified as:
- Common – general to all persons
- Special – arising from special relationships e.g. contract.
- Status – arising from status of persons concerned e.g. Employer/Employee relationship.
A legal right is that which the law protects. Interest is not protected except to the extent that it corresponds with rights. Because of the often-conflicting interests of persons generally it is not possible to protect all interests. A right in the legal sense can therefore be said to be some interests protected by law and no general rules can be laid down as to which interests should or should not be protected by law. As with duties and wrongs, rights may be moral or legal. The law is only concerned with legal recognition. It is obvious for example that a person has an interest in his property and that, that interest is protected by law. By contrast, it is not so obvious whether an unborn child has rights. Although some other system gives legal personality to things, English Law in general recognizes only the rights of persons. Animals for instance have no legal right. The only reason why cruelty to animal is regarded as crime is simply because it is offensive to people generally and not because they posses any right.
A perfect right is that which can be enforced. The great majority of legal rights are perfect rights. An imperfect right on the other hand are those which cannot be enforced e.g. statute barred rights of action or rights what are incapable of enforcement due to absence of certain formalities e.g. contract of Marine Insurance.
Consequent upon the controversy surrounding whether or not there is always correlation between duty and rights, the need to distinguish between absolute and relative duties has become necessary.
- Absolute duties are those without a corresponding right e.g. the duty of manufacturers not to pollute the atmosphere. It is a duty towards persons generally.
- Relative duties on the other hand, are the duty vested in some other person(s) with corresponding duty and not towards the public in general.
It must be noted that this distinction is not completely logical in view of the fact that duty against the public generally could also be enforced by the appropriate authorities.
Characteristics of legal rights and the common terminologies in use
- Every right is vested in a person
- A right involves a duty on the part of some other person
- Every duty involves either an act or an omission on the part of a person bound
- The content of the rights refers to some things (subject matter).
- The subject matter of a right may be a thing, a person or an immaterial thing.
A contingent right is that which will not become vested until certain conditions are fulfilled while on the other hand vested right is that which is definite. Property owner has a vested Interest/Right in his property since both are definite and not dependent on any conditionality.
Liberties, Powers and Immunities
The general assumption that rights are correlative or duties do not seem to have taken account of liberties, power and immunities which are also sometimes called rights.
- Liberties: Legal liberties are also called licenses or privileges. They are the benefit derived from absence of legal duty imposed upon a person. Every person has the liberty to do anything, which fall into the sphere in which the law permits. A good example is liberty to move freely about, which may be curtailed by imprisonment. Liberties are in ordinary languages often described as rights, but in the strict legal sense they do not qualify to be treated as such, as there as no corresponding duties, for example, the right to do whatever one wishes with one’s own property does not impose duty on some other person(s). In addition, the so-called right to work is a mere liberty as English Law has never recognised that a person has a right to work in legal sense in spite of government’s efforts in providing full employment.
- Power: A power is defined as the ability which a person has to alter the rights, duties and liabilities either of himself; or of others. It can be construed as Authority or Permission to do something. For example, every adult has a power to make a Will. A power is usually not always combined with liberty to exercise it. For instance a thief has the power to sell the property he has stolen but no lawful liberty to exercise the power. The correlative of a power is a liability. If a power is vested in a person, any other person against whom the power may be exercised is said to have a liability. Liability in this context must be understood as capable of being to the advantage or disadvantage of the person who has it.
- Immunities: Immunity is a dispensation from having a legal relationship altered by another; the most common example is diplomatic immunities. It is a dispensation which certain representatives of foreign powers and international bodies have from legal liabilities, which are commonly imposed on people generally. Diplomats are immune from normal process of law. They are however at liberty to waive their immunity.
The division of rights into perfect and imperfect has been examined. The most important of imperfect right being the one individual has against the state; the imperfection of the right stem from the absence of means of enforcement. It is however generally accepted that the state will always comply with an award of the courts thus reducing the importance of this imperfection. The division of right as well as duties into positive and negative have also been examined. Most legal rights are negative in character, that is, the bulk of the law consists of the prohibition of acts, which cause harm. One practical reason why negative rights and duties are so much more numerous than positive rights and duties is that they are more easily enforceable e.g. the law can deal with a person who assaults another, but it is very unlikely that a parent will be forced to feed his ward adequately.
Rights in rem & Rights in personam
- Rights in rem or real rights are rights which correspond with duties, which are imposed on, people generally. A right in rem in available against persons in general, e.g. a person’s right in respect of his person, land, house and properties are rights in rem as they correspond with duties owed him by people as a whole. They are always of greater value than rights in personam. With very few exceptions right in rem are negative.
- Right in personam or personal rights on the other hand are rights, which correspond with duties imposed upon a particular or determined person or persons. The right of a person to recover money which he has lent out is a personal right, so also is the right to interests in bank deposit. Duties are imposed on only the debtors and banks respectively. Right in personam is of lesser value as it is always more fragile and difficult to enforce. Most rights in personam are positive e.g. the debtor has a positive duty to pay his debt.
The distinction between rights in rem and rights in personam applies not only to rights in the strict sense, but also to liberties, powers and immunities. The right to one’s reputation for example is a right in rem and the right to walk over the land of another is a right in personam.
Proprietary and Personal rights
- Proprietary rights are those, which can be given a monetary value. The total of a man’s proprietary right is known as his estate. This may include his right in his house, furniture, credit balance in Bank Account and right of action against another which may result in award of damages. It may be either a right in rem or a right in personam.
- Personal rights on the other hand are those, which are not easily quantifiable in monetary terms. They are mainly concerned with the status of individuals which confer on him certain rights and privileges. Examples include, citizenship of a country, possession of certain qualification, right to vote and be voted for. Status may be looked at in three different ways, viz:
- All a person’s legal relationships, i.e. all rights, duties and liabilities under the law.
- It may be used to describe anyone of the many statuses a person possess e.g. landowner, husband.
- It may also be used to describe a person’s legal capacities or incapacities e.g. major, minor, adult and children.
Rights in re propria and Rights in re aliena
Rights in re propria are rights, which a person has in his own properties. Conversely, his right in the properties of others is referred to as rights in re aliena or encumbrance. An encumbrance is anything which limits the more general rights possessed by another. For instance, a landowner has a general right over his land, but another person may be given the right of way over it; such right of way is known as encumbrance, which takes from servient right, is termed dominant.
One encumbrance can also be subject to another. Mr. ‘A’, a landowner may lease his land to Mr. B and B is then the encumbrancer of A’s land; B’s right is dominant and A’s servient. B may in turn sub-lets part of his land to C; in respect of this part of the land, B’s right are still dominant to those of B. there is no encumbrance unless dominant and servient rights are concurrent. If this is not the case, there is no encumbrance but a personal right vesting on someone.
- Lease: A lease exists where one man has the use and possession of the land of another.
- Servitude: A limited right to use land without either right of possession or ownership e.g. right of way.
- Security: the right of creditor in the property of debtor until such debt is paid.
- Trust: This occurs where the right of the legal owner of property is restricted by his obligation to use it for the benefit of the beneficiary; the legal owner is the trustee while the owner of encumbrance is the beneficiary.
Principal and Accessory Rights
The main right is known as principal right while the right added to the main right is known as accessory right. For instance where a secured loan is made, the lender has a principal right against the debtor and accessory rights in respect of the property on which the loan is secured.
A person has right in his property, person and reputation. All these are primary rights. In certain circumstances, it is possible to enforce the primary rights while in others, it is not possible and the victim may have recourse to sanctioning right only. Primary rights may be either rights in personam or rights in rem.
Legal rights are those which were originally recognised only in the common law courts and equitable rights are those which were recognised only in the court of chancery. Both are now recognised and enforceable in all courts. Where two persons claim the same legal right, the first to have it is entitled to retain it. The same rule applies to equitable rights. However, where there is a conflict between legal and equitable rights, the legal right takes precedence except in few exceptional cases where the general rule have been altered by certain statutory provisions.
