Understanding the Basics of Law
Law is the study of the system of rules that a particular country or community recognizes as regulating the actions of its citizens. Its study is a wide-ranging discipline that includes criminal, tax and social security, human rights, and international law. Oxford Reference offers authoritative, accessible information on the major terms and concepts across this broad field.
“Right”
Legal rights are a normative category with both preemptory and conclusory legal validity (Lyons 1982: 113; 1994: 154). The former has the form of a claim, privilege, power, or immunity, while the latter has the function of defining what right-holders must or may do in relation to others.
The moral justification of a right is not itself self-evident, and it must be found from reasons other than the interests that rights protect. Such reasons can include the utilitarian considerations of utility and policy; or they can be deontological in nature.
A right’s legal validity is determined by its recognition by the courts or legislature, and by whether it is deemed enforceable or not. If it is deemed enforceable, then it will be enforced by the state or by private parties through enforcement actions such as lawsuits, arbitration, and judicial decisions.
Those who argue that a legal right is merely a vessel for public policy are sometimes referred to as “legal realists.” They hold that law is determined by internal, rational, and objective rules without reference to or reliance on extra-legal reasons.
Some theories of law, particularly those influenced by natural law and deontology, see legal rights as essentially reflective of natural moral rights. In such a view, they are not subject to enforcement or social convention, or recognition by others (MacCormick 1977: 189; Raz 1986: 168).
But this approach is also susceptible to criticism from those who advocate formalism. They hold that law is governed by a rational internal logic, such as a rule of reason (Lyons 1982: 113).
Hohfeldian Rights
According to the Will Theory, rights provide right-holders with small-scale sovereign control over certain domains. For instance, rights allow a right-holder to annul or waive certain duties owed to them by others; to forgo remedial rights; and, to transfer claims and powers (Lyons 1970: 183-4).
Other Hohfeldian positions that right-holders enjoy passively are privileges, immunities, and powers, which determine what a right-object must do or may do in relation to other right-objects (MacCormick 1977: 193-194).
A right’s legal justification depends on its recognition by the courts or legislature, and on its statutory or common-law basis of law (Raz 1980: 231). Justification often involves the grounding of other legal norms.
Moreover, a right’s legal justification can be contingent on a factual condition, such as the state of affairs that will give rise to a duty correlating with the right (MacCormick 1980: 164). For example, a law that grants children a right in the estate of their decedent only vests once all debts and existing claims are satisfied.