Law is a set of rules that can be created and enforced by social or governmental institutions to regulate behavior. The precise definition of law has long been a matter of debate, with different theories developed over time and across cultures.
Law can serve a wide variety of functions, including to keep the peace and maintain status quo; preserve individual rights; protect minorities against majorities; promote social justice; and provide for orderly social change (Fitzgerald 1966: 333-440; Paton 1972: 319-320 & 433-485). In some nations, laws have a stronger emphasis on these purposes than in others.
Legal rights are a broad category of entitlements that can be asserted by individuals, groups, or governments in various ways. These include claims, duties, immunities, and privileges.
Claims are often considered to be “rights” in their strictest sense. They represent an assertion that X has a right against Y with respect to some ph, based on a correlative duty owed to Y to X to ph.
Rights are typically justified by a normative grounding in some other legal rule, such as those that express the general principles that everyone has a right to be recognized or to have their property protected against unjust use. In addition, a normative justification may also ground other aspects of rights, such as those that impose a duty on a party to act or refrain from acting in certain manners.
Many legal systems recognize and rely on the principle of stare decisis, meaning that judges will not overrule decisions by the same judge in similar cases, to assure that future courts reach the same results. The doctrine of precedent is particularly important in common law legal systems.
The Will Theory of Rights: Hohfeldian Forms, Choice & Sovereignty
According to the Will (or Choice) Theory, rights provide their holders with a measure of normative control over themselves and others by allowing them to choose how to act or exercise their powers. This enables them to function as “small-scale sovereigns” over their domains, controlling as they choose which duties they owe and how they might be transferred, waived, or annulled (Hart 1982: 183-4).
The Will Theory of Rights is often used in combination with the Hohfeldian idea that rights entitle or for right-holders. However, this theory does not apply to all legal norms exhibiting Hohfeldian forms.
This theory also argues that Hohfeldian privileges are not genuine rights, as the Hohfeldian notion of rights suggests. This is because standalone privileges are not entitled to rights.
Likewise, Hohfeldian immunities are not necessarily valid or enforceable rights.
While some of these theories have been criticized for being too restrictive, all of them share an insight that a legal system committed to rights is oriented towards treating the individual person as law’s primary unit of concern.
Some legal systems, such as the United States, are founded on the concept of rights, while others are governed by a set of principles that reflect the values of their respective societies. This means that some legal systems have greater emphasis on protecting the rights of citizens while others focus on preserving the status quo or defending the interests of the wealthy.
