LEGAL THEORY OF RIGHTS IN THE CURRENT SCENARIO, WHAT ARE THE IMPLICATIONS?
Updated: Mar 20, 2021
Author: Saloni Jaiman, II Year of B.A.,LL.B(Hons), from
The National Law Institute University Bhopal.
This blog shall entirely deal with the concept of understanding what are legal rights and how they play a major role in the society. In a simple language, it could be clearly deduced that when the concept of legal rights is brought into the picture, it is associated with the creation of such rights which can be brought about by those people who are in authority over such rights.
For example, in India, anything can be a legal right only when it has the backing of an act or law passed to approve such a law. For example, any person can get information under the Right to Information Act and can apply for the same, however; such information is allowed to be accessed by the citizens only because of the fact that such an information is allowed to accessed under the said law, therefore people can exercise this right to obtain information from the official records because of the fact that such a law has been brought into existence and people can exercise such a right because of the fact that the authorities have brought such a law permitting the same, thus it becomes a legal right to obtain information under the RTI act. This project work shall address certain questions pertaining to the legal rights in India and other countries as well, its concepts, beliefs, ideologies etc. propounded by different authors.
CHALKING OUT THE CLARITY; DIFFERENCE BETWEEN MORAL RIGHTS AND LEGAL RIGHTS
It is a notion that moral rights do not take into consideration the legal restrictions imposed by the government and other institutions, which thus implies that moral rights exist outside the scope of legal rights. There is also a probability that what could be morally correct or appropriate could be illegal at the same time.
For example, man-eaters such as those communities who practise cannibalism might be morally correct in fulfilling the needs of their stomach, but murdering another person is per se illegal. Another situation could be that for some communities or people seeking vengeance per se might be morally correct however; killing somebody to seek vengeance in order to satisfy one’s anger. Thus, there exists a major variation between moral rights and legal rights.
Morality has a completely different notion. The definition of law however is restricted to what is defined by the state. When “morality” is used in a descriptive sense, moralities can differ from each other quite extensively in their content and in the foundation that members of the society claim their morality to have. Some societies may claim that their morality, which is more concerned with purity and sanctity, is based on the commands of God.
“Moral systems are interlocking sets of values, virtues, norms, practices, identities, institutions, technologies, and evolved psychological mechanisms that work together to suppress or regulate self-interest and make cooperative societies possible.”
-Jonathan Haidt, The Righteous Mind: Why Good People are Divided by Politics and Religion
LEGAL RIGHTS AND THEIR CONCEPTUAL RELATION WITH OTHER RIGHTS.
When a look is drawn towards the theories of Hohfeld, for example, he never explicitly spoke of mortal rights and legal rights and tried to analyse them. Rather, his theories never covered the moral aspect per se.
However, when we try to analyse the legal rights and their associated concepts with other rights, we get to know that sometimes legal rights are correlated with other rights.
For example, legal rights can be stated to be correlated with moral rights, the property of others must not be taken away and there are laws on theft related to this in other countries, but then moral rights come with a dilemma too, even when we talk about correlation, there are certain situations wherein a person might be in a dilemma to steal bread from another person’s house or to keep his family hungry.
This is not just one situation; there are several instances wherein such a conceptual understanding helps to note that, in such a scenario, if there exists a law which says that stealing would be illegal, then it would amount to snatching away the rights of another person. Hence, legal rights might in some instances overpower moral obligations.
The most simple criteria to determine who can be a legal right holder and who cannot be a legal right holder would clearly depend upon the type of system. For example, in India if the courts allow the minors to have legal rights, then; in such a situation even the minors shall have legal rights; therefore, this shall depend upon the legal system prevalent in different countries and the structure or manner which the authorities follow.
[T]here has to be a sense in which legal systems can confer rights on such entities as they please. This is because it has long been recognised that legal systems can regard as legal persons such entities as they please. In England, for example, ‘the Crown’ has, for centuries, been regarded as a legal entity although what this means in terms of office-holders, far less the actual human beings who occupied those offices, has changed greatly over that time.
Likewise, all modern societies recognise the legal existence as persons of companies or corporations and frequently of such entities as trade unions, government departments, universities, certain types of partnerships and clubs, etc.(Campbell, Kenneth, "Legal Rights", The Stanford Encyclopedia of Philosophy)
It can be clearly deduced that legal rights are all those rights which are conferred upon by any authority. Legal rights tend to take into consideration the fact that they come along with responsibilities which are sometimes vested in a moral principle.
Legal rights take into consideration the fact that to some extent they are related to moral rights and obligations. Sometimes, there could also exist a clash between legal rights and moral rights. Sometimes what could be considered legally appropriate might not be morally correct.
This implies that legal rights do not take into account the notions of morality. However, they might be used in some other scenarios. There is also a probability of modification of legality based on morality. Since law and society go hand in hand, and therefore, it is more probable for legal rights to be modified with time. If the underlying notions behind stringent laws are to curb out corruption, consider it illegal. However, if the legal rights are modified to the extent that certain work shall require a certain amount of fees to be paid, for which earlier black money was used, shall now not be considered illegal. Another important aspect is that legal rights cannot be completely related to moral rights, hence there exist differences in the practice and propagation of the same.
BOOKS AND MAJOR WORKS REFERRED
W.N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (Westport, 1978),
W. Kamba, Legal Theory and Hohfeld's Analysis of a Legal Right (19 Judicial Reviews 249 1974)
I. Kant, Critique of Pure Reason (Translated by Norman Kemp Smith) 2nd Edition (Basingstoke, 2003)
I. Kant, Metaphysics of Morals (Cambridge, 1991)
JOURNALS AND RESEARCH WORKS REFERRED
The American Journal of Jurisprudence, Volume 63, Issue 2, December 2018, Pages 295–354, https://doi.org/10.1093/ajj/auy015
Campbell, Kenneth, "Legal Rights", The Stanford Encyclopedia of Philosophy (Winter 2017 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/win2017/entries/legal-rights/>.
Darwall, Stephen, 2006, The Second-person Standpoint: Morality, Respect, and Accountability, Cambridge, MA: Harvard University Press..
A.M. Honore, Rights of Exclusion and Immunities against Divesting (34 Tulane Laws Review 1960)