The Concept of Rights in Law


Law is an orderly system of rules that regulate human behavior in society. It serves various purposes, including keeping the peace and maintaining the status quo, preserving individual rights, protecting minorities against majorities, promoting social justice, and providing for orderly social change.

Generally, laws are framed by written or tacit constitutions and encode the rights encoded in those constitutions. These include property rights, contract and civil rights, as well as criminal rights and procedural justice.

Propertylaw governs ownership and possession of land, and personal property, such as movable objects and intangible rights like stock shares. The content of these is often in the form of rights in personam (rights to a particular thing), but also in rem, where a right is only to compensation for a loss.

The concept of rights is central to legal theory and to jurisprudence, but there are many different kinds of rights. Some are simple and clear, while others require more investigation.

Claims, privileges, powers and immunities can manifest as either rights in personam or in rem. The former refer to rights that are against specific people or entities; the latter, for example, are against an estate’s executor after a decedent dies.

Immunities are a Hohfeldian type of power that entitles right-holders to prevent certain acts, usually in the name of a legitimate interest or purpose. These include the ability to sue for damages or restitution for property, and the immunity of witnesses in judicial proceedings from liability for defamation.

However, some immunities hardly appear to qualify as “rights”; consider, for example, an immunity from inheriting property rights on the basis of gender. Likewise, an immunity from being prosecuted by the state may not seem to entitle one to claim rights to freedom.

As a result, the question of whether a legal norm is a right or not is crucial for understanding how to read and interpret it. The Hohfeldian picture of rights has been criticized by formalism critics as being dependent on extra-legal considerations to give meaning to a determination of what the law is and what it should be.

Despite this, some Hohfeldian legal norms do exhibit “right as outcome” (MacCormick 1982: 163, 189; Raz 1970: 226), and thus seem to be more like “rights”. The main reason is that they regularly correlate with vested duties, which are only vesting when the factual conditions for vesting have been met.

This is the case with most rights and powers, such as the immunity of judges from being sued in their judicial capacity or the immunity of competent adults from unilaterally transferring title to their property or changing the terms of their contracts.

Other Hohfeldian categories, such as claim-rights and immunities, function to allow right-holders to exercise their privileges, powers, and responsibilities as a matter of choice or will. These include the right to annul, waive, or transfer duties owed to them by others; and the right to exercise their rights as a small-scale sovereign.

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