What Is Law?


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 is a subject of debate, but it typically includes statutory laws, codes, and precedents.

The Term “Right”

According to Hohfeldian normative theory, a right is an entitlement or correlative duty to another party that reflects the morally owed obligations between those parties in the situation. A right may manifest in a claim-right, an interest, or an immunitary that can be exercised against others (e.g., a debtor to pay her creditors; a landlord to protect tenants from slumlords).

The Rights Theory

In the context of legality, “right” as an entity can be traced back to medieval legal concepts of “tenants in chief,” “mesne,” and “in demesne,” that referred to varying degrees of control over land held under specific conditions of tenure. Each tenant was expected to perform certain services or pay a certain fee in return for the use of the land, which was regarded as a type of property.

The concept of a right was developed as a means of articulating the moral demands that were supposed to be attached to the ownership or possession of land in feudal society, a form of property where a king’s control over his domain was largely limited by his power of command.

This is an idea that remains central to the concept of “right” today, where the morally owed obligations between those involved in the circumstances are typically reflected in legal rights. In the United States, the most common example of a legal right is the right to a trial by jury.

It is important to note, however, that while rights have been characterized as “rights” throughout history, it has not always been possible for those arguing against the notion of “right” to defend the right to a trial by jury. This is because such arguments have generally tended to be rooted in deontological principles, eschewing considerations of utility and policy that might otherwise underpin legal rights.

As a result, those who argue against the rights theory often tend to have little patience with attempts to treat legal rights as reasons that “punch above their weight” and outweigh competing reasons when it comes to whether or not one should or shouldn’t do something.

While such arguments might not be completely without merit, they are prone to being overly critical of the content of a right and/or to be intolerant of those who believe that the right is only a vessel for the expression of public policy, i.e., the good or utility that the rights aim to promote.

This is especially true where rights are conceived of as “abstract” rather than “concrete.” Abstract rights are usually viewed as “punching above their weight” by virtue of the fact that they do not express a concrete prescription, but rather a broad set of aims. This inclination can lead to the development of conflicting interests, as between those who seek to protect their self-serving interests and those who wish to do otherwise.