characteristics of legal rights and how the legal rights differ from equitable right

1.0 Introduction.

The concept of legal right is the old concept in the history of man’s life in the world; the concept legal right however differs from time to time. In the modern legal theory the concept has same fundamental significant because rights are dispensable to all societies and are recognized and enforced by the state using the prescribe laws.

The concept legal right in the modern time has been connected with state laws enacted by the parliament. The parliament which represents great number of individuals in society is vested with powers to make, amend and repeal laws on behalf of the whole members of the state.

2.0 Definition of the concept legal right. 

Hibbert defined the term legal right as one person’s capacity of obliging others to door forbear by means not of his own strength but by strength of the a  third party. If such third party is God, the Divine. If such third party is the public generally acting through opinion, the right is moral. If such third party is the state acting directly or indirect the right is legal.

According Gray, legal right is that power which man has to make a person or persons to do or refrain doing certain act or certain acts.

Salmond stated that right is the interest recognized and protected by a rule of right. It is any interest, respect for which is a duty, and the disregard of which is a wrong.

Holland defined the term right as the capacity residing in one man of controlling, the assent and assistance of the state, the action of others.

Thus, in this sense a legal right may be defined as any advantage or benefit conferred upon a person by a rule of law. Of those rights we get four kinds of rights; that is right in strict sense, liberties, powers, and immunities, each of these right has correlative function.

3.0 The concept legal rights and equitable rights.

Rights can either, be legal or moral. A moral or natural right is an interrelated aspects recognized and protected by rule of morality, violation of which would be a moral wrong ,for example when a  parent commands respect from the children it is a moral right but if a child violate such command it is amoral wrong. Contrary to that legal right is a right recognized and protected by the law. For insistence, a person ‘A’ has right to privacy in his house but if such person is interfered with this right it would be a legal wrong. So legal right is the right which is legally protected by the law, and if a man claims something as his right he claims it as his own as due to him, as once Professor Paton noted that, “one of the essential conditions of the legal right is that it should be enforceable by the legal process of the state”. He also made the following exceptions;

That the state enforce not all legal rights, under certain circumstance a state instead of enforcing a right, it may redress the wrong by getting compensation paid to the injured party.

That some rights are imperfect by nature, that is, they are recognized by the law but not enforced by by it. For example a time barred debt.

There are certain laws which do not center rights of enforcement to the court, therefore their enforcement is not possible though they are recognized by law. For example the international court of justice (ICJ) has no power to compel enforcement of its, deriver under the international law.

The legal rights are expressed by two main theories; these are will theory of legal rights and interest them of legal rights. This means a right is an inherent attribute of human will and a legal right is legally protected interest.

4.0 Equitable Rights.

Equitable right is the right derived from equity. Equity traces its origin from ancient Roman law. In England the equity courts were established and recognized new rights provide new remedies and save English legal system from stagnation.

The exclusion of jurisdiction of the chancery courts provided relief in respect of equitable rights as opposed to legal rights which were protected by the common law courts. The equitable rights however, were aimed at three objectives, named as;

One, that the interpretation of law should be based on sound logical reasons.

Secondly, that there should be generality in the application of laws.

The third objective is that the deficiencies of law should be removed through equitable principles of justice and good conscience.

Therefore the grounds stated established both legal right and the equitable rights.

5.0 Characteristics of the legal rights.

Salmond stated that every right has five essential elements.

The foremost element is the person inherentace, that a legal right is always vested in person who may be distinguished as the owner of the right of the subject or the person of inherence. Every right is owned by certain person. The right also, is owned by a society at large.

The second element of legal right is the person of incidence that a legal right is avail against a person upon whom lies the co-relative duty and distinguished as the person of incidence. That is, the person bound by duty may be described as subject of the duty.

Third element is the content of the right, that the act or omission which is obligatory on the person bound in favour of the person entitled.

The subject matter of right is the fourth element; it is something to which the act or omission relates, that is, the thing over which a right is exercised. This may be called object or subject-matter of the right.

The last element is title of the right; that, every legal right has title, that is, certain facts or events which are events by reason of which the right has become vested in its owner. Illustration; if ‘B’ buys a piece of land from ‘X’. B’ is the subject or owner of the right so required.

The person bound by the correlative duty are persons in general, for the right of this kind avails against the world at large. The content of right consists in non-interference with the purchaser’s exclusive use of the land. The object or the subject-matter of the right is the conveyance by which it was acquired from the former owners.

Having noted those elements, it is time for discussion over the characteristics as follows;

The first characteristic of legal right is that, a legal right is a legally protected interest.

 The second characteristic of a legal right is an interest or an expectation granted by the law.

 Is also a legal right which recognized and directed by the rule of right.

 Another characteristic of legal right is a legal right which in terms of recognition and protection by the legal order, it enforceable by legal process which is said to be a necessary condition of a legal right, his means the law does not always enforce aright where the injured party is guaranteed merely damages.

 The right is the will power of man applied to a utility or interest recognized and protected by a legal system. The legal right must obtain not merely legal protection, but also legal recognition. The legal right takes into consideration of both elements of will and interest.

6.0 The distinction between legal rights and equitable rights.

The distinction between legal and equitable right originates from the distinction between law and equity. Prior to the passing of the Judicature Act, 1873, there were two distinct co-ordinate systems of law in England which were called common law and the equity law. At that time, legal rights were recognized by the common law courts whereas equitable were recognized by the court of chancery which was court of equity. This distinction was, however abolished by the fusion of the two courts by the Judicature Act, but the existence of common law and equity as two distinct branches of law still persist in England. The methods of their creation and disposition are however, different.

For example, a legal mortgage must be created by a deed but an equitable mortgage may be increased by a mere written agreement or by the deposit of the title deeds.

Therefore legal rights are the right recognized by the law, whereas equitable rights are the right recognized and protected by justice, equity and good conscience.

Equitable rights have a more precarious existence than legal rights. When there two inconsistent legal rights claimed by different persons over the same thing the first in time prevails.

However were there is a conflict between legal rights and equitable rights, the legal rights shall take prevails and destroy the equitable right even if it is subsequent to the equitable right in origin. The owner of legal right however must have acquired it for the value and without notice of the prior equity. Thus the rule is that where are equal equities, the law prevails.

7.0 Conclusion.

In concluding this discussion, I wish to say that legal rights are those which enforced by the state by the use of laws enacted by authority bodies. Justice Holmes also stated that legal right is the “nothing” but a permission to exercise certain natural powers and upon certain conditions to obtain protection, restitution or compensation by the aid of public force. Legal right is power of removing or enforcing legal limitations on conduct.

The legal right however differs with the equitable right on the point of enforcement by legal process and protected by legal system

REFERENCES

Paranjape, N.V.(2004),Studies in Jurisprudence and Legal Theory,                                          Central Law Agency, Allahabad.

Sharma, G (2008), An Introduction to Jurisprudence, Deep & Deep                                         Publisher PVT Limited, New Delhi.