Typical Features of Legal Rights


Law is a complex, interrelated, and pervasive system of norms, rules, and regulations that governs the conduct of individual and collective actions. These norms vary from country to country and region to region, but they generally fall into three broad categories: substantive, procedural, and moral.

Legal rights are some of law’s most basic and pervasive building blocks. They are the normative categories that bind the various elements of legal systems together, and they are central to the process of establishing and defending the legitimacy of a government’s law and its ability to regulate social and economic activities.

A right can have one or more of the following forms and functions: (Section 3) “claim”, (Section 4) “privilege,” or (Section 5) “power.” Each of these normative categories is defined by its form and function in the context of its relationship to other normative categories. The most common and distinctive Hohfeldian relations among them are: claims that a party can do something, privileges that a party may do something, and powers that a party may do something.

The most important feature of a legal right is its justification, or the grounds on which it is determined to exist in law. This justification is often the basis for determining what other norms are involved in a legal system and what these norms may or may not be.

This justification may be a formal legal norm grounding or a more informal moral or social norm grounding, or some combination of both. The most popular and influential justifications are often legal norm grounds, though there is no lack of a diverse literature on the issue of the moral justification of legal rights.

Typically, a legal norm is justified because it has the form and function of a “right” and is consistent with other law’s relevant norms (Raz 1970: 175-202; MacCormick 1977: 189; Raz 1994: 258-263; Wellman 1995: 24-29). These justifications are often grounded in a specific social context (for example, the rule of law), but can be derived from a range of other sources.

Another typical feature of legal rights is their institutional nature. This institutionality is due in part to the greater degree of cohesion, coordination, and control that they tend to exercise over other normative systems, and the larger scope of activity that they can or may be used for.

For this reason, the legal system is typically more enforcing than non-legal systems and has a far greater capacity for imposing sanctions and remedies. It also has a wider array of norms that are not found in normative systems of non-legal institutions.

In this light, the legal system’s role in society is sometimes criticized as “bureaucratic” and compulsory (Raz 1979: 115-121; Sumner 1987: 70-79). This may be in part because of the greater emphasis on administrative and political control over individual behavior that tends to be associated with law.

However, such criticism can be misleading. In reality, a large part of the power of the legal system is that it can, and frequently does, defer to executive statutory interpretation as a means to resolve conflicts between law and other normative categories.

By adminssk
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