What Is Law?


Law is the body of written or tacit rules that govern people, communities and societies. It includes the legal rules that govern human interaction, such as contracts and laws on criminal and civil rights, as well as a set of principles and values that guide the creation and enforcement of those rules.

Law’s primary functions are to shape social and economic structures, protect the interests of its beneficiaries, and ensure the fair treatment of those it serves (Raz 1970: 221). It also provides a framework for social control, governing relationships between individuals or groups of people and their governments, institutions, businesses, and other entities.

Generally speaking, there are two types of legal systems: common law and civil law. In the former, decisions by courts are explicitly acknowledged as “law” on equal footing with statutes adopted through the legislative process and regulations issued by the executive branch. In the latter, decisions by courts are less explicit and may be based on limited factual information.

A key feature of legal systems is the notion of “rights.” These are formalized rules of conduct that individuals or groups have a right to enforce against others. They vary in stringency and are shaped by normative jurisprudence, political and constitutional theory, and judicial practice.

The most stringent legal rights are typically those the law deems “fundamental,” or that are particularly protective of significant interests or values, including civil and human rights. The degree of stringency and the legal doctrines that determine it are matters of normative jurisprudence, civil law, and judicial practice.

These rights are preemptory; that is, they have a measure of qualitative precedence over certain competing reasons for deciding whether to ph or not. This is a characteristic that allows legal rights to be rebutted by other even weightier reasons, such as the overall good or utility of the action or process in question.

While this preemptory quality is commonly rooted in natural law or deontological principles, some have argued that this quality is more accurately understood as setting normative “thresholds”—excluding many but rarely all possible conflicting considerations (Lyons 1994: 152; Griffin 2008: 76).

This theory is often referred to as the demand theory of rights. It has been defended by Joel Feinberg and Stephen Darwall, who argue that the capacity or power of a right-holder to claim a legal right is the most fundamental feature of the concept.

Another prominent defender of this theory is Richard Wilkins, who argues that rights are not only capable of correlating to duties but that they are also able to bestow them. He argues that these rights can be established by either legal rules or judicial decisions directly giving rights, or they can be established by a combination of the former and the latter.

Other legal scholars, such as Michael Hart and Jeremy Rifkin, have argued that there are other ways to establish a legal right, other than through direct rule-making or judicial decision. For example, it is often possible for a legal right to be established by other kinds of actions, such as by voluntary agreements or gifts.