The Characteristics of Rights in Law


Law serves a wide range of functions, ranging from keeping the peace to maintaining the status quo to protecting individual rights against majorities and to promoting social justice and orderly change. Some legal systems do better than others in fulfilling these functions, while some fail to accomplish them.

The nature of a right is often determined by the scope and extent of conflicting reasons that it trumps or excludes (Lyons 1982; 1994: 152; Griffin 2008: 76). This quality is also manifested in how demanding the duties grounding a right are, and whether or not the law permits infringement of certain underlying rights when those underlying reasons are even more resolutely defended.

In contrast to substantive norms, procedural norms are generally less binding than their counterparts, and they do not control how other (mostly substantive) norms can be created, deliberated on, or applied in the case of the right-holder. Examples of procedural norms include: rights to a hearing, trial by jury, confront witnesses, receive reasons for official decisions, and a variety of other legal procedures.

A right can figure both as an outcome and a reason in the same legal decision or legal context, and it can also project normative force even when violated. Thus, rights can be “intermediate conclusions” that project a normative bottom line while at the same time counting as legal reasons or reasons for other legal duties or positions (Raz 1986: 181; Wellman 1995: 25-29).

These kinds of rights are sometimes called “perfect” legal rights. These rights are enforceable, and they tend to be based on practical considerations of application (Fitzgerald 1966: 233; Raz 1994: 256).

Imperfect legal rights, by contrast, can be atypical because they cut against the practical grain of law and may be more difficult for the law to adjudicate and impose remedies or sanctions on if violated.

In general, imperfect legal rights are not a feature of positive law because they would be morally unjustified (Lyons 1982: 113; 1994: 154). However, it is not self-evident that a law’s commitment to rights automatically guaranties its moral justification as well.

Another characteristic of a right is its peremptoriness. This is the degree to which a right trumps or excludes many, yet rarely all, possible conflicting reasons (Lyons 1982; 1994: 152).

While absolute rights are certainly conceivable, such rights are rarely attainable in law or in morality. Moreover, absolute rights are unlikely to succeed because they are likely to run into intractable contradictions with conflicting weighty rights and with overwhelming public concerns (Feinberg 1973: 79-83; 93-97).

In addition to their moral justification, legal rights may also be justified in relation to the common good. The common good is a broader notion of the good that all people share, and it may encompass, for example, a healthy society, a fair distribution of wealth, a secure nation-state, and so on. This notion of the common good is commonly contested, and there are arguments about whether rights actually promote or hinder it.

By adminssk
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