Jurisprudence and Legal Theories · Chapter 5
Study notes aligned to the official NEB syllabus.
Rights and duties are the two most basic ideas in all of law. Almost every legal relationship works the same way. One person has a right. Another person has a matching duty. Jurisprudence studies what rights and duties are. It studies how they are grouped into kinds. It also studies how a legal right differs from a mere moral claim of conscience, and from the special class of fundamental rights that the Constitution guarantees.
A right (अधिकार) is an interest that the law recognises and protects. The law will enforce it. The word is not used for every wish or desire. It is used only for an interest that the legal order backs with its authority. When the law backs your right, it puts another person under a matching duty.
Salmond gave a classic account of a legal right. He said a legal right has five elements. There is a person who holds the right (the subject). There is a person who bears the matching duty. There is an act or forbearance that forms the content of the right. There is an object over which the right is used. And there is the title, which is the fact from which the right arises.
A simple example shows all five at work. Suppose A lends Rs 50,000 to B under a loan. A is the person who holds the right. B is the person who owes the duty. The content is the act of repayment. The object is the money owed. The title is the loan agreement from which the right springs. So every right of one person creates a matching duty on another. This is why we say rights and duties are correlatives (they go together as a pair).
Rights are grouped into several kinds. The kinds are easiest to learn in pairs.
A perfect right is recognised by law and can also be enforced by the courts. An imperfect right is recognised but cannot be enforced. The usual example is a debt that has passed its time limit (हदम्याद). The creditor still has a right. But the court will no longer enforce it.
A positive right asks another person to do some act. For example, a buyer has a right that the seller deliver the goods. A negative right asks another person not to do something. For example, you have a right that others not trespass on your land.
A real right (right in rem) works against the whole world. The right of ownership is like this. Everyone is under a duty not to interfere with it. A personal right (right in personam) works only against one particular person. A creditor's right is like this. It works only against his own debtor.
Rights are also divided into proprietary and personal. A proprietary right relates to a person's property and estate, such as ownership of a house. A personal right relates to a person's status and body, such as the right to reputation or bodily safety. Rights are also divided into principal and accessory. An accessory right exists only to support a main right. A mortgage that secures a loan is an accessory right. The loan is the principal right.
A legal right is an interest that the law of the state recognises and protects. If someone breaks it, that is a legal wrong. The person wronged has a legal remedy that a court will enforce.
A moral right is an interest that morality or conscience recognises. The law does not always recognise it. If someone breaks it, that is a moral wrong. The only sanction (consequence) is conscience or the disapproval of society. No court will act.
Examples make the difference clear. A creditor lent Rs 50,000. His right to be repaid is a legal right. The court will enforce it by a decree (court order). Now take a beggar's claim to charity. Or take a friend's claim that a promised social favour be kept. These are at most moral rights. No court will give a remedy for them.
Here is another example. A man walks past a stranger drowning in a shallow pond. He does nothing, though he could easily have helped. He has broken a plain moral duty. Society will condemn him. But he has committed no legal wrong, unless some specific legal duty bound him to act.
Legal and moral rights often overlap. This is because much law is built on morality. But they are not the same. Some legal rights are morally neutral. A few are even criticised. And many moral rights are never given legal force. The real test that separates the two is enforceability by the state.
Fundamental rights (मौलिक हक) are the basic human rights that a constitution guarantees to people. A constitution places them beyond the ordinary reach of government. In Nepal they are guaranteed in Part 3 of the Constitution of Nepal 2015. They include the right to equality, the right to freedom, the right against untouchability and discrimination, the right relating to justice, and the right to constitutional remedies, among others.
Ordinary legal rights are rights given by ordinary statutes (laws passed by Parliament). Examples are the rights of a buyer, a tenant or a creditor under the Muluki Civil Code 2074.
An illustration shows the difference best. Suppose Parliament passed an ordinary law that barred women from inheriting property. A person affected could challenge it directly. She could file a writ in the Supreme Court or a High Court. She would argue that the law breaks the fundamental right to equality. The law would then be void to the extent that it clashes with the Constitution. An ordinary legal right is different. The next ordinary law can simply change it or take it away.
From this, the main differences follow.
(a) Fundamental rights are guaranteed by the Constitution, the supreme law. Legal rights flow from ordinary legislation.
(b) Fundamental rights are superior and more secure. An ordinary law that clashes with them is void to the extent of the clash. They can be enforced directly by writ. Ordinary legal rights are enforced through the ordinary courts. They can be altered by ordinary law.
(c) Fundamental rights can usually be changed only by amending the Constitution. Legal rights can be changed by an ordinary Act.
(d) Fundamental rights mainly act as limits on the state's power. Many legal rights act between private individuals.
A duty (कर्तव्य) is an act or forbearance that the law requires of a person. It is the obligation that answers to another person's right. Duties, like rights, come in kinds. A duty may be positive (to do an act, such as to perform a contract you have made). A duty may be negative (to hold back, such as not to trespass on another's land). A duty may be legal (enforced by the state) or moral (enforced only by conscience).
A legal duty is one whose breach is a legal wrong that draws a sanction. For example, a person has signed a contract to deliver goods. He is under a positive legal duty to deliver them. Everyone is also under a negative legal duty not to steal or damage another's property. If you break either duty, you can be taken to court.
An obligation (दायित्व) has a strict meaning in law. It is a legal tie (vinculum juris) that binds one person to do or not do something for another. So an obligation matches a personal right (right in personam). Obligations arise mainly from three sources.
(a) From contract, by the agreement of the parties. For example, A agrees to build a house for B.
(b) From delict or wrong, by committing a civil wrong. For example, one person injures another by negligence and must pay compensation.
(c) From the operation of law itself. Examples are the duty to maintain certain family members and the duty to pay tax.
In Nepal, these sources of obligation appear in the Muluki Civil Code 2074. That Code governs contracts, liability for wrongs, and family maintenance. The link between the ideas is simple. Every right has a matching duty. An obligation is a special kind of duty. It is owed to a particular person and can be enforced by law.