According to Salmond, in order that an interest may become a legal right, it must obtain not merely legal protection but also legal recognition. The law, for instance, punishes cruelly to animals and thus protects, to some extent, the interests of animals.
But beasts are not for this reason possessed of legal rights. The right in question belongs really to the society as a whole which is interested in the welfare of animals.
A legal right has been defined by Holland as,
“capacity residing in one man of controlling, with the assent and assistance of the State, the actions of others.”
Professor Gray like Holland also lays emphasis upon the power or capacity. He defines legal right as,
“that power which a man has to make a person or persons do or refrain from doing a certain act or certain acts, so far as the power arises from society imposing a legal duly upon a person or persons.”
Holland lays emphasis on the element of enforcement of right, while Salmond gives prominence to its recognition.
Criticizes the definition of legal right by Salmond as wide enough to include the protection given by such absolute duties as are enforced criminally in respect of which there is no right vested in anyone.
According to Hibbert, right is one person’s capacity of obliging others to do or forbear by means not of his own strength but of the strength of a third partly; and if such third party is the State acting directly or indirectly, the right is legal.
Again, Salmond’s definition of legal right is also open to another objection. It is true that a legal right is capable of being enforced in a court of law, but this is not invariably the case and is not the essence of the true conception of right. There are rights which are not enforceable by any legal process, e.g., debts barred by time, but nonetheless they are rights.
Rights and Duties Are Correlative:
A right is any interest respect for which is a duty and the disregard of which is a wrong. There can be no right without a corresponding duty, any more than there can be a husband without a wife or a father without a child. Every duty must be a duty towards some person or persons in whom, therefore, a correlative right is vested.
And conversely every right must be a right against some person or persons upon whom a correlative duty is imposed. There can be no duty unless there is someone to whom it is due. Every right must be a right against some person or persons upon whom, therefore, a correlative duty is imposed.
Thus, when A has a right to recover a debt from owes a duty towards A to pay the same. Similarly, if X and Y have entered into any agreement and Y has broken it, in X lays the right and on the duty to make good the loss caused by the breach of the contract.
Austin divides duties into absolute and relative. In the former there is no correlative right. Such duties, according to him, are not to commit suicide or not to commit a public nuisance: they are also duties owed lo Gou. In the latter there is a corresponding right.
This distinction is clearly faulty, for every right or duty implies a legal bond by which two or more persons are bound together, and a duly alone or a right alone cannot create this bond. Even in the absolute duties the sovereign possesses the corresponding right; and in case of duties owed to God they are not legal duties. If, however, the legal system imposed some religious duties, then a legal duly is owed lo the Suite.
Duguit’s Concept of Legal Rights:
The French jurist Prof. Duguit rejects altogether the concept of legal rights. He holds that the whole theory of rights is based on the false notion of conflict of interests between the society and the individual.
A subjective right or power in one man’s will to impose his purpose as such upon one or more such wills so long as he intends something not prohibited by law implies that there are two wills face to face and one is superior to the other.
Such metaphysical system, according to him, is impossible in a realistic age. According to him, “no one has any other right than always lo do his duty.”
He contends that laws are the inevitable consequences of social solidarity and are the expressions of the discipline of the individual members composing the society. He pleads that the word ‘right’ be altogether expunged from the legal dictionary and condemns the conception as immoral, anarchical and anti-social.
A great deal of comment has been made on the positivist theory of Duguit. The enforcement of duties is undoubtedly the function of the State, but the person for whose benefit the duly is enforced, may still be regarded as having a legal right.
Dr. Jenks in his book, “The New Jurisprudence”, observes in criticism of this theory:
“If one individual can in the name of the law and by the agency of the Stale officials bring down upon another, who has committed a breach of a legal duly, the sanction attached to that duty, there exists in the first individual power to enforce with the aid of the State, a legal duty and lo that power the jurist gives the name of “legal right.”
Professor Laski has, however, compromised that position of Duguit when he remarks that Duguit’s denial of legal rights is “terminological rather than actual”, for it is the duty of man to contribute all he can to the development of social solidarity.