Law, as a social institution, regulates behavior by means of enforceable rules. These may be created by governmental authorities, such as statutes or court decisions, or by private individuals, as in contracts.
Typically, laws provide a remedy for the violation of rights by imposing remedial obligations (either restitution or compensation) on victims. These are typically secondary rights, in that they arise from a primary right that has been violated or from a conflict between rights that cannot be enforced due to incompatible practical conditions.
The nature of rights as Hohfeldian positions is unclear, but some can be active while others are passive, determining what parties may or may not do (privilege-rights; power-rights; immunities). In contrast to claim-rights, which designate a specific and definite right-object, privilege-rights, powers-rights, and immunity-rights refer to the legal status that right-holders possess in relation to other individuals or entities, typically by way of a contract, a trust, a part of a tort, or a property title.
When correlative duties are justified, a right can be both an outcome and a reason (Raz 1970: 226-227; 1986: 171). This is the normative priority of rights over duties, and it can even run backwards in the sense that a duty-right conflict occurs when both rights and duties conflict within practical reasoning.
In addition, some rights may be justified by their intersection with other reasons or underlying interests. This is particularly manifest in the correlative remedial duty justification discussed below.
Some of the most common and pervasive building blocks in the law are rights, which are generally recognized as positive (i.e., legally enforceable) legal norms that have the form (Section 3) and function (Section 4) of “right” (see Sections 1-3). The moral justification of these rights is also an important issue, with a variety of approaches and theories in use.
For instance, a right can be considered a moral imperative, that is a compelling, self-evident, and unchanging ethical principle that must govern all conduct (see Lyons 1982; 1994: 147-176). The same may be said of some legal norms, such as criminal statutes (Kamm 2002: 499-500), that have a moral dimension or an element of balancing the public good with individual liberty.
Often, however, the moral justification of a legal norm does not guarantee its legal validity (Lyons 1982: 113; 1994: 154). There is no single answer to this question, as it depends on a complex array of factors.
While most legal scholars have a broad understanding of the features that distinguish a “right” from a “duty”, there is much debate over which particular rights populate or ought to populate positive law. Some of this debate focuses on establishing the criteria by which legal rights must be assessed for their moral justification, with other efforts directed at assessing the general contours of “right”.
This entry elucidates the concepts of “right” as a general concept and discusses some salient and unique features of legal rights that should be kept in mind when writing about this topic. In addition, this entry covers some issues that cut close to the elucidation of legal rights that should not be left out.