Salmond on rights and duties, and the quarrel about correlativity

Everyone agrees that a right and a duty usually go together. The question that divides the jurists, and that the examiner asks, is whether they must — whether there can be a duty with nobody to claim its performance, and whether there can be a right with nobody bound.

Austin. Legal rights are creatures of law, strictly so called; natural and moral rights are not armed with legal sanction and cannot be enforced judicially. Duties are of two kinds:

• absolute duties, which have no corresponding right; and
• relative duties, which have one.

Austin conceives it to be of the essence of a right that it be vested in a determinate person and be enforceable by legal process instituted by him. He starts from two assumptions: that a right cannot vest in an indeterminate or vague entity such as society or the people; and that the sovereign creates rights and may impose or change them at will, from which it follows that the sovereign cannot himself be the holder of such rights.

Salmond. A legal right is an interest recognised and protected by a rule of law, the violation of which would be a legal wrong. A legal duty is an act which obliges a person to do something, the opposite of which would be a legal wrong. Whenever law ascribes a duty to a person a corresponding right also exists, and no right can exist without a corresponding duty.

Every right or duty involves a bond of legal obligation binding two or more persons together — vinculum juris, a bond of the law, the tie that legally binds one person to another. Three consequences follow, and they are worth learning as a set:

1. There can be no duty unless there is someone to whom it is due.
2. There can be no right unless there is someone from whom it is claimed.
3. There can be no wrong unless there is someone who is wronged — someone whose right has been violated.

Pound. Legal rights are essentially interests recognised and administered by law, and belong to the science of law rather than to law. Rights are conceptions by which interests are given form in order to secure a legal order.

Duguit, at the far end of the range: there is only one right, to serve the people; persons have only duties and not rights.

Where the argument stands. Every claim implies a correlative duty, since a claim has no content apart from the duty. Whether every duty implies a correlative claim is doubtful. Austin admitted absolute duties, drawing his examples from criminal law; Salmond thought every duty must have a correlative claim somewhere; Allen supported Austin; and Professor Glanville Williams treats the dispute as verbal. Some jurists hold that a right may not necessarily have a correlative duty at all — legal rights being legal concepts whose correlatives need not be duties. That is the doorway into Hohfeld's scheme, and the two studies should be read together.

The list that answers state the characteristics of a legal right:

| | The characteristic | The term of art | |---|---|---| | 1 | It is vested in a person, who may be distinguished as the owner of the right, the subject of it, or the person entitled. | Person of inherence | | 2 | It avails against a person on whom the correlative duty lies, distinguished as the person bound or the subject of the duty. | Person of incidence | | 3 | It obliges the person bound to an act or omission in favour of the person entitled. | The content of the right | | 4 | The act or omission relates to something, in the widest sense of that word. | The object or subject-matter | | 5 | Every legal right has certain facts or events by reason of which it became vested in its owner. | The title |

A perfect right is one which corresponds to a perfect duty, and a perfect duty is one which is not merely recognised by law but also enforced by it.

In a fully developed legal system there are rights and duties which, though recognised by law, are not perfect. They are important, but no action is taken to enforce them: the rights form a good ground for defence, but the duties do not form a good ground for action. In some cases an imperfect right is sufficient to enforce equity.

The eleven divisions, each with the single distinction that matters:

1. Positive and negative. A positive right entitles its owner to have something done for him, without which his enjoyment is imperfect; a negative right is complete unless interference takes place. In the first the duty falls on one or a few; in the second on a large number, most negative rights being available against the entire world. Satisfaction of a positive right betters the owner's position; a negative right only maintains it.
2. Real and personal. A real right corresponds to a duty on persons in general and avails against the whole world; a personal right corresponds to a duty on determinate individuals. All real rights are negative — a real right is no more than a right to be left alone, a right to passive non-interference. Most personal rights are positive.
3. Right in rem and right in personam. From the Roman actio in rem, an action for the recovery of dominium, and actio in personam, an action for the enforcement of an obligation. Jus in rem is a right against or in respect of a thing, available against the whole world; jus in personam is a right against a person, available against a particular individual only.
4. Proprietary and personal. Proprietary rights are a person's rights in relation to his own property and have economic or monetary value; they are valuable, transferable, elements of wealth, and possess economic as well as judicial importance. Personal rights arise out of contractual obligation or relate to status; they are not valuable, not transferable, are merely elements of well-being, and are residuary — what remains after proprietary rights are subtracted.
5. Perfect and imperfect — above.
6. Vested and contingent. A right vests when all the facts have occurred which by law must occur for the person to have it; it is contingent when some but not all of the vestitive facts have occurred. The vested right creates an immediate interest and is transferable and heritable.
7. Primary and sanctioning. Primary rights arise from something lawful; sanctioning rights originate in the violation of primary rights. A primary right may be in rem or in personam; a sanctioning right is only in personam.
8. Principal and accessory. The accessory right is the secondary right connected to or arising out of the principal right.
9. Rights in re propria and in re aliena. A right over one's own property; and a right over the property of another, that is an encumbrance.
10. Private and public. Private rights are vested in individuals; a public right is vested in the State and possessed by every member of the public.
11. Legal and equitable. Legal rights are recognised by the courts of common law and exist under the law or a substitute for law; equitable rights are recognised solely in the Court of Chancery and exist under the grace or supplement of law. Where the two coincide the legal right prevails and defeats the equitable right.

• The definition question. Give Salmond's definition, then the five characteristics with the terms of art, then the vinculum juris and its three consequences.
• The correlativity question. Set the four positions in order — Duguit, Austin, Salmond, and the Hohfeldian answer that the correlative of a right need not be a duty at all — and then say which you follow and why.
• The classification question. Do not simply list eleven pairs. Take three or four and show the distinction doing work: real and personal explains why a trespass claim lies against anyone and a contract claim only against the promisor; proprietary and personal explains what passes on assignment.