In the case of positive rights, satisfaction leads to an improvement in the position of the owner, while in the case of negative rights, the position of the owner is simply maintained as it is. The right to compensation or recovery of money from the debtor are examples of positive rights. A right to reputation is a negative right because it imposes on others the negative duty not to interfere with it. A positive right aims at a positive benefit, but a negative right aims not to be violated. Positive rights have an intermediate relationship with the object, while negative rights have a direct relationship with the object. This theory is supported by Hegel, Kant, Hume and others. According to this theory, a right is an inherent attribute of the human will. The law is the will of an individual. Man expresses his will over an object through rights.
This theory extended natural rights, which stated that the state could not legally intervene in certain areas of personal life. According to Salmond, legal rights include the following essential elements: Thanks for this article 😊. That dispelled all my doubts. I would greatly appreciate the example you gave in dealing with the characteristics of legal claims, these examples gave me better ideas. Best wishes for future projects!! Salmond lists five characteristics of legal claims. Four of these features are However, rights do not need to be secured or determined. For example, a right may belong to the company as a whole; Here, the object of the right is undefined. Similarly, an unborn child has a legal right, but it is not certain whether he or she will be born alive or not. Dr. Allen tried to mix and reconcile these two theories by pointing out that the essence of a legal right does not seem to be the legally guaranteed power per se, but the legally guaranteed power to realize an interest.
Therefore, a sound theory would consider both will and interest as an essential part of the legal claim. A public figure generally refers to the State or its sovereign part, a corporation or an individual subordinate to it. The term private person refers to one or more individuals who are a unit of the State, but do not represent it in any way for any particular purpose. Therefore, it can be said that the rights transferred to the state are called public rights. A private right concerns only individuals. It is up to the law to confer certain powers on the individual or to grant certain freedoms in the form of legal rights. According to Holland, a legal claim is “the ability that resides in a man, with the consent and support of the state, to control the actions of others. Duguit disagrees with this theory and criticizes it by suggesting that the will is not an essential part of a legal right or law. The real basis of law is social solidarity.
He also calls subjective rights theory a mere metaphysical abstraction. 4. The object on which the right is exercised and which can be described as the object or object of the right, that is to say, something to which they refer or to which they refer. This thing does not have to be a physical object, but may consist of a right, a set of rights, or a person. The rights of principle are independent. Ancillary rights are opposed to other rights and have a positive effect on fundamental rights. For example, if the owner of land has a right of way over adjacent property, ownership of the land is his principal right and the right to adjacent land is the ancillary right. Depending on the type of co-relative obligation, rights are divided into positive and negative rights.
As the name suggests, with positive rights, a person is obliged to do or do something because he is bound by duty. The satisfaction of positive rights leads to the improvement of the position of the owner, whereas in negative law people are prevented from doing anything, they have negative duties that correspond to them, and enjoyment is complete without interference. According to Salmond, “a right in respect of alienation limits or departs from a more general right of another person in the same object. All other rights that are not limited are proprietary rights. The owner of the movable thing is entitled to ownership, since it is his property. The pledge is correct in aliena, since it is directed on the property of others. Substantive rights may be divided into rights of recourse and remedies. Trailblazing rights exist regardless of whether an injustice is committed or not. For example, the purchase of a good has a precursor right over that good.
A right that arises when prior rights are violated is called the right to reparation. This is compensation in the form of compensation for the violation of a prior right. The totalitarian vision completely denies the existence of any legal rights. According to this view, there are no distinct rights and an individual does not have a distinct existence of his own. Rights are granted by the States of which they are nationals, and individuals do not have independent legal rights as such. Little importance should be given to the individual, since the state is the only real thing. This theory has been rejected because it is far from the reality of the modern society of democratic welfare states, where rights are very important. Rights are the fundamental part of every state. In the modern sense of world rights, human beings have an important position. Rights and obligations should be analyzed in the context of the law under which they are created and protected. Legal rights vary and have different dimensions, depending on the diversity of legal personalities such as an individual, a child, artificial personalities such as corporations, the insane, etc.
Legal rights play a very important role in the development of the individual and have a major impact on the functioning of society as a whole. According to T.E. Holland, the definition of legal claims means “the ability that rests on one man, with the consent and support of the state, to control the actions of others.