Law is a system of norms embodied in written rules, judicial decisions, and other acts that govern the conduct of human beings. Its basic building blocks are legal rights, which may be either rights in personam or in rem (Raz 1994: 258-260).
The eliciting of positive law is an essential component of any legal system, and it is typically done through the writing of laws by legislatures and through judicial rulings that establish individual rights under federal and state law and under the Constitution of the United States. Depending on the nature of the law, it can also be established through regulations issued by agencies, boards, and commissions.
Some jurisprudential approaches to law seek to elucidate and criticize entire bodies of law, whereas others examine specific elements of the law in order to reveal its historical, moral, or cultural basis. This entry will focus on the most pervasive building blocks of law, the rights that people have to live their lives free from restraints and limitations.
Legal rights are essentially “preemptory” reasons that enjoy a measure of qualitative precedence over certain other reasons (Nozick 1974: 173; Hart 1982: 86-87). They can be argued to preempt or defeat competing reasons for why one should do something, such as ph-ing.
Hohfeldian rights are the norms that exhibit these forms in most respects, and they function to confer a measure of normative control over right-holders (Hart 1982: 183-4; Jones 1994: 18-19). They also grant a range of choices for how a right-holder can act or exercise her powers.
Moreover, they provide the grounds for claim-rights and immunities, which are rights that serve to prevent or restrict interference with someone’s freedom of action and exercise of her powers.
There are a number of different types of rights, including property, contract, and agency rights. For instance, property rights protect ownership of and interest in land and other resources. Contract rights protect the ability to enter into and perform contracts. Agency rights, on the other hand, give a person the power to appoint or delegate authority over another’s actions.
The term “right” can be used to refer to many things, but legal rights are the most common type of right. They can be in personam or in rem, and they can be for or against an individual or a group of individuals.
Some jurisprudential explanations of rights emphasize their role as “deontological side-constraints” on the promotion of the common good or other social goals (Lyons 1982; 1994: 147-176). Other views, however, see them more as inherently antagonistic to those goals, and argue that they vest when collective interests are insufficient to justify harming or depriving individual persons.
In the United States, constitutional rights were created through devices that gave a special status to rules that defined the organization of government and limited legislative and executive power (Lyons 1982: 148-157; Kamm 2002: 489-497). In addition, a number of rights are formally recognized by courts as valid or ineligible when a court decides whether the laws that they enact violate the Constitution.