What Is Law?

Law refers to a group of rules that govern the behaviour of individuals, societies and nations. Often, these rules are written or enacted by governments. Typically, the government tries to enforce these laws. It can also set punishment for people breaking these laws.

The concept of a right, in legal terms, is usually defined as an enforceable legal norm that has the form (Section 3) and function (Section 4) of “right”. There are, however, some imperfections, such as unenforceable contracts, immunities and claims barred by lapse of time. These are often referred to as “implicit rights” or “alien rights.”

One feature common to legal rights is their individualist nature. As such, they tend to secure individuals’ interests, agency, dignity, autonomy, control and liberty, often in the face of utilitarian ideals or, more generally, the common good (Lyons 1982; 1994: 147-176; Kamm 2002: 489-497; Finnis 2011: 2010-218).

Nevertheless, some rights also appear to have moral grounds that go beyond the interests they protect (Raz 1986: 168; Wellman 1995: 25-29). For example, certain civil rights are arguably justified by reasons of the common good as securing people’s dignity and welfare.

Another important characteristic common to legal rights is their correlative nature. As such, if a person has a right to something, the person may have a duty to others to protect that right.

Thus, if someone has a right to be treated with fairness and respect, they may have a duty to treat other people in the same way. This is especially true of those who are entitled to special protections and benefits under the law, such as prisoners or welfare recipients.

This principle is at the heart of “right as outcome” in Hohfeldian theory, which holds that legal rights are a type of normative conclusion, rather than a category or category-like concept. It can be seen, therefore, as a sort of correlative-type logical relationship that runs from the right-to-duty to the duty-to-right, which is then interpreted according to the law of the jurisdiction in question (Kamm 2002: 476).

In this regard, legal rights can and arguably do often justify other legal rights and correlative duties (Raz 1994: 268-269; Wellman 1995: 25-29). These include, for example, the obligation not to discriminate against others based on race, religion or national origin.

Other examples include the obligation not to engage in discriminatory employment practices, such as requiring employees to sign union contracts that require employers to provide them with certain protections against workplace harassment or discrimination.

As such, these can be seen as a sort of legal preemption. The reason for this is that the rights are a normative conclusion that judges, for example, would normally apply to cases before they decide on the merits of the case.

The principle of retroactivity is a further feature common to law, which means that courts are bound by past law in deciding new cases (Raz 1979: 115-121; Sumner 1987: 70-79). While this is certainly an important consideration for courts to keep in mind when making a decision, it is not a requirement.

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