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The Concept of Rights in the Study of Law

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Law is a system of norms that governs human behavior. These laws are usually based on legal rules and principles that guide decision-making by those making decisions, with the purpose of protecting and furthering people’s interests.

The concept of “right” is a key building block in the study of law. It provides the groundwork for understanding a variety of legal concepts, and helps explain how legal rules work as an institutional system.

There are several major theories of rights, each of which is concerned with elucidating how and why legal rights figure in legal reasoning. These theories include the Interest Theory, Will Theory, and Hohfeldian Analysis.

According to the Interest Theory, speaking broadly, rights protect or further right-holders’ interests. For instance, a property owner has a claim against another to not trespass on her land (see Section 3). Also, a promisee has a contractual right that the promisor fulfills his or her promises and obligations.

Similarly, creditors hold claims against debtors to pay their debts, privileges to collect or not collect their debts, and power to forgive their debts. Moreover, creditors’ rights often include immunities from other private parties unilaterally waiving or annulling these respective claims, privileges, and powers.

These theories suggest that legal rights serve as bastions of individual right-holders’ interests, agency, dignity, autonomy, control, and liberty. This is particularly true in the face of utilitarian ideals or, more generally, the common good.

It is important to note, however, that while the Interest Theory argues that rights serve their owners’ interests, it is not self-evident that such interests are morally legitimated. Rather, such rights are defended or justified in the context of moral philosophy and normative jurisprudence (Raz 1995: 31-32).

As a general rule, rights can be either claim-rights or powers. Nevertheless, claim-rights are more frequent in the law of obligations (contracts, trusts, and parts of torts) than are powers.

This is because claim-rights correspond to “negative” duties not to impede one’s ph-ing, and to “positive” duties to actively further one’s ph-ing. In contrast, powers relate to duties to act or to perform something.

For example, a government has a constitutional duty to protect the citizens from abuse of power, and a citizen may have a right to legal representation.

Moreover, some claim-rights are morally justifiable, such as those of the citizenry that protect against discrimination in public accommodations.

Furthermore, some claims-rights are not morally justifiable, such as rights that protect predatory slumlords’ self-serving interests.

The concept of “right” can also be applied to the broader field of law and literature, especially as it pertains to the history of legal practice. For instance, in the 1970s, feminists argued that “men-only” signs in bars violated women’s rights to equal protection under the law.

The moral justification of a legal right is not self-evident, and there is a considerable literature on this topic. Nonetheless, there is an underlying consensus that legal rights do indeed serve the best interests of the people in some sense or another, even as some of them are morally unjustified.

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