What Are the Rights of Law?
Law is a system of norms (Raz 1979: 103-121; Sumner 1987: 70-79) oriented towards action and human behavior that can be adjudicated, including but not limited to contracts, property, torts, and trusts. It also has the unique feature of being an institutional system of norms, exhibiting features absent or more muted in rights found in other normative systems of non-legal institutions, such as social clubs, trade unions, and universities.
Generally, “rights” take four Hohfeldian forms: claim-rights, which entitle the right-holder to certain benefits or to be spared certain consequences; preemptory rights, which preempt certain other reasons pertaining to whether to ph; and, correlative remedial rights, which justify correlative remedial duties.
Claim-rights are the most common type of legal “right,” and they stand in particular for a person’s right to receive or retain certain benefits and/or to be spared certain consequences owed by another. However, rights may also include a variety of other entitlements, such as an immunity from inheriting property on the grounds of one’s gender or to be persecuted by state authorities.
Preemptory Rights
Rights are characterized as “preemptory” in that they are reasons that, at times, “punch above their weight” in conflicts with other even greater reasons for deciding ph (Nozick 1974: 171-173). This is to say, that they are reasons for ph that are able to “punch” above certain other reasons pertaining to ph and/or that set normative “thresholds” excluding many, yet rarely all possible conflicting reasons pertaining to ph (Lyons 1994: 152; Griffin 2008: 76).
In the context of rights, this means that rights can be a basis for grounding or justifying remedial duties if a person violates her right to receive or retain ph. At other times, violated rights continue to project their normative force thereby still counting as reasons for a duty.
Deontology and the Common Good
Those who reject natural rights and deontology, as well as those who eschew considerations of utility and policy, often regard rights as “deontological side-constraints” that impede the promotion of the common good (Lyons 1982; 1994: 147-176; Kamm 2002: 489-497). This view is typically associated with the Will Theory of law, which views law as a system of moral rules that is dominated by and in turn controlled by rights-holders.
The Will Theory, as a result, is frequently hostile to treating rights as reasons. It is a reaction to the dominance of approaches to political morality based on consequentialist considerations of utility, public policy, or the common good.
In practice, rights are typically defended by arguments that they are a means of protecting or enhancing the interest or utility of the right-holder. This is especially the case in the law of contracts, property, and torts, where rights-holders often enjoy a considerable measure of control over Hohfeldian positions that they hold in relation to others. Among other things, this power to shape and control Hohfeldian positions is a source of much of the political resistance to the notion of natural rights.