## 1. The Legal Validity and Justification of Legal Rights



Legal rights are creatures of the law. As such, their legal
validity--that is, a right's status as
legal--typically flows from other legal norms or from a source of
law (MacCormick 1977: 189 & 206; Sumner 1987: 68-70; Raz
1994: 263-268). 



Broadly speaking, there are two primary legal mechanisms for the
creation (or detraction) of (valid) legal rights. One is "acts
of law", that is legal rules or judicial decisions directly
bestowing rights. A second mechanism involves the legal recognition of
certain actions intended to create certain legal rights as in fact
constitutive of those rights, be those actions unilateral (typical of
gifts, forfeiture, consent, appointment, last will and testament) or
agreements (typical of contracts) (Fitzgerald [Salmond] 1966:
333-341; Paton 1972: 319-320 & 433-485). 



These legal mechanisms can create rights explicitly (Raz 1994: 268).
For example, according to the *Fourth Amendment* of the U.S.
Constitution: 



> 
> 
> The *right* of the people to be secure in their persons,
> houses, papers, and effects, against unreasonable search and seizure,
> shall not be violated.... (emphasis added) 
> 
> 
> 



Legal rights are also created implicitly (Raz 1994: 268). For
instance, by establishing legal relations exhibiting the forms and
functions of a right, a legal rule can thereby vest a legal right
without explicitly mentioning the term "right" (MacCormick
1977: 191-92). Take for example the *First Amendment* of
the *U.S. Constitution*, widely recognized as establishing
legal rights to freedom of religion and speech--even though the
amendment only mentions "free exercise" and
"freedom", not "right".



Moreover, in holding certain conduct to be wrongful to *X* and/or
in granting *X* a corresponding right to a remedy, legal rules
can arguably grant *X* a legal right against such conduct. For
example, the American common law tort of battery involves an
intentional, unlawful, and harmful or offensive contact with the
person of another, never mentioning a "right against
battery". Yet, in laying down a rule against battery and in
recognizing battery as wrongful, the law thereby arguably grants a
legal right against it (Goldberg & Zipursky 2020: 92-98).
Moreover, following the logic of "where there's a remedy,
there's a right" (*ubi remedium ibi
jus*)--law's granting victims of battery remedial
rights (or rights of action) against the persons who battered them, is
at least suggestive that law also grants a legal right against
battery--a right that, if violated, is what legally justifies the
remedy (Raz 1994: 266-267). 



Legal justification is a matter of legal normativity, not validity.
Typically, justification involves a legal norm grounding--as a
matter of law--other legal norms. (Raz 1970: 175-183;
MacCormick 1977: 189; Raz 1994: 258-263; Wellman 1995:
24-29). For instance, given that Joseph is a person, that
"Joseph holds a legal right in his good name" is justified
by the more general rule "every person has a right in his/her
good name". Now, whether or not Joseph's right in his good
name is legally *valid* turns on whether, for example, the
courts or legislature recognize it. Yet, whether or not the courts or
legislator are correct--as a matter of law--in recognizing
Joseph's right is a question of legal justification, such as
whether the right is entailed by another more general legal norm or
principle, or whether it passes constitutional muster. Therefore, as
demonstrated in judicial errors of law, it is possible for rights to
be valid yet not justified, as well as justified yet invalid (see
generally Hart 1961: 141-147). 



Legal rights can justify other legal rights (Raz 1994: 268-269;
Wellman 1995: 25-29). For instance, courts may find that one
right derives from another (Raz 1986: 168-170). Such derivation
can flow from the *content* of the justifying core right, such
that the derivative right falls within the scope of the more general
right from which it derives. For example, the U.S. Supreme Court held
that the right to marry is a fundamental right inherent to the more
general constitutionally protected liberty of the person
(*Obergefell v. Hodges*, 576 U.S. 644 [2015]). 



Rights can also justify other rights when the successful exercise and
implementation of the latter is dependent on the former (Wellman 1995:
26-27). The stronger the dependency, the stronger the
justification (Nickel 2007: 87-88). Consider, for example, the
U.S. Supreme Court's holding in *Griswold v. Connecticut*
(1965) that:



> 
> 
> The right of freedom of speech and press includes not only the right
> to utter or to print, but the right to distribute, the right to
> receive, the right to read ... and freedom of inquiry, freedom of
> thought, and freedom to teach ... Without those peripheral
> rights, the specific rights would be less secure. (482-483) 
> 
> 
> 



Notice that this conception of legal validity and justification flows
from the tradition of
 legal positivism
 in general jurisprudence. That said, the elucidation that follows of
the concept of "legal rights" is mostly compatible with
other jurisprudential traditions as well.


## 2. What Rights Are: Methodology



A (valid) legal norm is a legal right if and only if it exhibits the
form
 (Section 3)
 and function
 (Section 4)
 of the more general category of a "right". Accordingly, a
legal norm labeled a "right" not exhibiting these features
is arguably mislabeled. Theories identifying the form (the normative
structure) and "function" (i.e., what rights are for) of
rights oscillate between and at times combine two approaches. One is
descriptive, distilling and systematizing primary features permeating
the common understanding and the core of "rights"
discourse (be it legal, moral, or social). Second, rights theories are
also purificatory and even prescriptive, injecting rationality,
coherence, and value into their account of what a right is, even if
partially revisionary and to the exclusion of some of the discourse.
For reflections on the methodology of rights theory see Hart (1982:
188-193), Raz (1986: 165-168); Kramer (1998: 22-35);
Wenar (2008: 251-267); and, Van Duffel (2017: 187-202).



## 3. What Rights Are: Form


### 3.1 The Hohfeldian Analysis of Rights



Later refined by others and echoing ideas from Bentham and other
predecessors, Wesley Newcomb Hohfeld's analysis of rights is by
far the most widely followed and influential systemization of the form
of rights (Hohfeld 1919: 35-64). Some noteworthy introductions
and elucidations of the Hohfeldian analysis include Fitzgerald
[Salmond] (1966: 221-233); Wellman (1985: 7-15); Sumner
(1987: 18-31); Jones (1994: 12-25); Kramer (1998:
7-60); Edmundson (2004: 87-102); Wenar (2005:
224-237; 2005 [2021] the SEP entry on
 rights);
 and Harel (2005: 192-193).



Writing specifically on the law, Hohfeld distills four different legal
positions residing under the term "right" as it is used in
law: *claim*, *privilege*, *power*, and
*immunity*. Each position designates a type of normative
relation between a *right-subject* and a *right-object*
(Raz 1970: 176). "Right-subject" denotes a right's
holder. "Right-object" denotes the party the right is held
over or against. Finally, a right's
"*content*" denotes the normative component of the
right; that is, the specific normative relation obtaining pursuant to
the right between the right's subject and its object (Sumner
1987: 24). As normative *relations*, each one of the four
Hohfeldian positions held by right-subjects correlates to a certain
type of normative position in the right-object. Altogether, Hohfeld
identifies four pairs of correlatives: *claim/duty*;
*privilege/no-claim*; *power/liability*; and,
*immunity/disability*. For example, *X* (right-subject)
can hold a contractual *claim* against *Y* (right-object)
that *Y* paint *X*'s house, where *Y* is under a
correlative *duty* to *X* to paint her house
(right-content). 



Claims and privileges are first-order norms, respectively
determinative of what the relevant parties *ought* to do or
*may* do. Powers and immunities are second-order norms (that is
pertaining to other norms), respectively determinative of whether
parties are *able* or *unable* to change certain norms
(Sumner 1987: 27-29). Some Hohfeldian positions are active while
others passive (Lyons 1970; Sumner 1987: 29-31). Rights that are
actively exercised determine what right-*holders* may do
(privilege-right) or can do (power-right). Rights which right-holders
enjoy passively, determine what right-*objects* ought to do
(claim-right) or cannot do (immunity-right). 


#### 3.1.1 Claim-Right



While law deploys the term "right" to refer to all four
Hohfeldian positions, "rights" are typically most
associated with claim-rights, which Hohfeld denotes as right "in
its strictest sense". A "claim" is a type of
entitlement (Kamm 2002: 476). *X* has a claim-*right*
against *Y* with respect to some ph if and only if *Y* is
under a duty to *X* to ph. Claim-rights are, therefore,
"directed"--the claim of the right-subject is
directed at the right-object, whose correlative duty is owed to
(directed at) the right-subject. Claim-rights correlate either to
"negative" duties not to impede one's ph-ing
(e.g., the right not to be defamed) or to "positive"
duties to actively further one's ph-ing (e.g., the right to
receive state welfare benefits) (Fitzgerald [Salmond] 1966:
234-235). Examples of legal claim-rights are property
owners' rights against others not to trespass on their land, or
promisees' contractual rights that promisors do as they
promised. 


#### 3.1.2 Privilege (or Liberty)



That *X* holds against *Y* a privilege to ph entails that
*X* is not under a duty to *Y* not to ph and,
correlatively, that *Y* does not hold a claim against *X*
not to ph. Put differently, a privilege to do something is a
directed liberty or permission to do so. Accordingly, the Hohfeldian
opposite of a privilege to ph is a duty not to ph. Similarly to
claim-rights, a privilege can be positive--that is liberty to
act--or negative--that is liberty to omit from
acting--or both. In the literature, Hohfeld's term
"privilege" is often exchanged for "liberty",
terms here used interchangeably. 



Are privileges (or liberties) genuine "rights", as Hohfeld
posits? In some respects, a liberty is the paradigm of a right (e.g.,
Hobbes 1651: ch. XIV). Yet, at least in law, there is something
misleading in the Hohfeldian notion that standalone privileges
("naked privileges") qualify as "rights".
After all, how does a privilege to ph count as a legal right, if
the privilege-holder does not also hold some accompanying legal claim
or other form of legal insolation against interference with her
ph-ing? (Hart 1982: 173; Sumner 1987: 35; Raz 1994: 275). In fact,
stand-alone liberties to ph are compatible with others'
liberties to interfere with one's ph-ing (Hart 1982:
166-167; Jones 1994: 18-19). It is not clear, therefore,
what stand-alone liberties do for putative right-holders; at least not
in legal system in which liberty is the default legal position (that
is, unless positively forbidden, ph-ing is permitted).



Regardless, in practice, legal privileges to ph are mostly (even if
not necessarily) secured by a measure of legal protection against
interference. Firstly, occasionally there are explicit legal
claim-rights to ph accompanying privileges to ph. Secondly,
privileges are regularly secured by a "protective
perimeter" of legal prohibitions and claim-rights (other than to
ph) *effectively* securing significant aspects of
one's freedom to ph (Hart 1982: 167 & 171-173;
Steiner 1994: 75-76; Kramer 1998: 11-12). For example,
even if one does not have a specific legal claim-right to "walk
on a public street", one's privilege to do so is largely
secured by various legal prohibitions on conduct that could interfere
with one's enjoying that privilege, such as crimes and torts of
assault, privacy, harassment, battery, and false imprisonment.



Moreover, normally liberty-rights to ph are considered as more than
mere "lack of duties" to ph. Liberties are thought of
as "full-liberties"--that is, liberties to ph or
to not ph--rather than as
"half-liberties"--that is, liberties to ph without
the liberty to not ph. Accordingly, "mandatory rights",
such as children's liberty to attend school or a
conscript's liberty to enlist in the army (that is, a lack of
duty not to attend or not to enlist) may be labeled
"half-rights" or "half-liberties", given that
while they involve liberty to attend school or to enlist, they do not
provide liberty not to do so (Feinberg 1980: 157, 237; See also Hart
1982: 166-167). 


#### 3.1.3 Power



Loosely, a normative power is the ability to alter (through volitional
action) the normative landscape; and in law, legal power is the
legally recognized ability to change or create legal positions,
relations, and norms (e.g., Hohfeld 1919: 50-57). The opposite
of holding a power is normative disability. Correlative to
*X*'s power over *Y* to alter an aspect of
*Y*'s normative position is *Y*'s liability to
*X*'s respective power. While "public powers"
are vested in the state or persons in their capacity as an agent or
officer of the state, "private powers" are vested in
private persons (or corporations) ((Fitzgerald [Salmond] 1966:
229-230). For example, parliament holds a legal power over the
citizenry to enact laws that bind them, and citizens are correlatively
liable to that legislative power; prosecutors hold the power to
prosecute criminal defendants; and, in private law, owning property
typically includes the power to gift or bequeath title to others;
estate law empowers people to create wills; contract law provides
power to enter into contractual obligations; and agency law empowers
to appoint others to take legal actions in one's stead. 



But are powers indeed legal rights in themselves, as is
Hohfeld's view? Arguably not. At least not when divorced of
privilege to exercise or to refrain from exercising that power. For
instance, under the market overt rule, a thief seemingly holds a legal
power to sell stolen goods but it would be odd to describe the thief
as holding a legal "right" to do so (Raz 1972: 82).
Similarly, if a judge is under a duty to rule in a certain way on a
certain issue, it would be odd to describe her as holding a
"right" to rule in that way, even if she holds the power
to do so. 



In any case, Hohfeld's account of legal power as ability to
alter legal relations via *volitional* conduct (Hohfeld 1919:
50-51), seems too broad. For example, the commission of a tort
or crime entails changes to legal positions (mostly one's own)
and typically involve volitional conduct, yet do not appear exercises
of legal power (MacCormick 1981 [2008: 98-100]). Refining
Hohfeld's account, some offer narrower conceptions of legal
power (Halpin 1996; 142-147). For instance, emphasizing acting
with intent to thereby alter a legal position, as a condition for
exercising a power to do so (Fitzgerald [Salmond] 1966: 229;
MacCormick 1972: 63; 1981 [2008: 97-98]). Although, arguably
this refinement is also too broad (e.g., homeless persons
intentionally committing crimes as a means of exchanging the street
for prison; or, a person moving house, thereby incurring obligations
not to cause a nuisance to her new neighbors) as well as too narrow
(e.g., unintentionally entering a contract). Another approach is that
ph-ing only counts as an exercise of a legal power if ph-ing
brings about a certain legal change *L* and law's reasons
for acknowledging ph-ing as resulting in *L* is that people
are reasonably expected to ph only for the purpose of effecting
*L* (Raz 1972: 80-81; 1975: [1999: 98-104]. For
example, forming a contract by signing it (for a critical assessment
of Raz' view see Halpin 1997: 61-65).


#### 3.1.4 Immunity



*X* holds an immunity against *Y* in respect of some aspect
of *X*'s normative position, if *Y* is disabled (lacks
power) to alter that position. Correlative to *X*'s
immunity is *Y*'s respective disability. The Hohfeldian
opposite of an immunity is liability (vulnerability to power). An
example of a legal immunity is judges' immunity from civil
liability for actions performed in their judicial capacity. Other
examples include the immunities of competent adults from others
unilaterally transferring title to their property or changing the
terms of their contracts, the immunity from being divorced by
one's spouse (in legal systems that do recognize divorce) and,
the immunity of witnesses in judicial proceedings from defamation
liability. 



Like in the case of privileges and powers, it is not obvious that all
stand-alone powers are in fact naturally identified as
"rights". Take for example a municipality's lack of
legal power to bestow a benefit, such as a permit or pension. While
such a disabling legal rule perhaps bestows an immunity (namely, an
immunity from receiving a legal permission or entitlement), it does
not naturally appear to grant a "right" to the person
"enjoying" the immunity (Hart 1982: 191). 


#### 3.1.5 Complex Hohfeldian Rights



Legal rights are typically composites of more than one Hohfeldian
position. In fact, as demonstrated above, some argue that at least
certain Hohfeldian positions do not necessarily count as genuine
rights when appearing in isolation from certain other Hohfeldian
positions (Sumner 1987: 34-53; Steiner 1994: 61-80). In
any case, breaking legal rights down into Hohfeldian positions is an
excellent clarificatory tool, providing a precise picture of the legal
relations at play. For instance, the constitutional right to free
speech involves: claim-rights (such as against censure); (full)
privileges (such as the permission and lack of duty to express or not
to express one's opinion); and, immunities (such as the
legislators' disability to expunge one's free-speech
claim-rights, immunities, and privileges). Looking to private law,
creditors, for instance, hold claims against debtors to the payment of
their debts; privileges to collect or not to collect debts; power to
forgive debts; and, immunities from other private parties unilaterally
waiving or annulling those respective claims, privileges, and
powers.


### 3.2 Legal Rights to Do Legal Wrongs



One particularly puzzling combination of Hohfeldian relations is a
"right to do wrong". There is of course nothing puzzling
in rights of one normative kind to violate duties of another normative
kind. For example, legal rights to do that which one has a moral duty
not to do are not uncommon (such as exploiting tax havens). Yet, the
idea of a right of one normative kind to do wrong of the same
normative kind can seem oxymoronic. 



And still, for many an essential feature of rights is providing for
doing even what one ought not to do. Dworkin, for example, explains
that:



> 
> 
> ... when I say you have the right to spend your money gambling,
> though you ought to spend it in a more worthwhile way. I mean that it
> would be wrong for anyone to interfere with you even though you
> propose to spend your money in a way that I think is wrong. (1977:
> 188) 
> 
> 
> 



And Raz claims that "[t]o show that one has a right to perform
the act is to show that even if it is wrong he is entitled to perform
it" (1979: 274).



Conceptually, the Hohfeldian analysis of rights as well as the
"functions" of rights (see
 Section 4)
 seem to allow for rights to do wrong (Waldron 1981; Kramer 1998:
14-17; Enoch 2002). *X* holds a right to do wrong if
*X* has a claim against *Y* (and *Y* is under a
correlative duty to *X*) that *Y* somehow facilitate or not
interfere with *X* doing something that *X* has a duty not
to do. In Hohfeldian terms, rights to do wrong are claim-rights
without privileges (Waldron 1981; George 1993: 118-122). To
dispel the sense of contradiction in the term "right to do
wrong", one needs to recognize that a right (claim-right) to do
wrong does not bear on the rightness or the wrongness (lack of
privilege) of that which one has a (claim-)right to do. Arguably,
immunities can also function as rights to do wrong, as they secure a
measure of freedom (relative to others) from intervention with
one's doing that which one has duty not to do (Herstein 2014:
37-45).



Moving from conceptual possibility to morality, while clearly there is
no blanket moral right to do moral wrong, some argue that such rights
are not a mere conceptual possibility. For example, even if one has a
moral duty (lack of privilege) not to join a bigoted association,
arguably one enjoys a moral claim protective of one's (wrongful)
choice to do so. Among the values claimed to ground such rights are
personal autonomy (Waldron 1981: 34-35; 1983: 325-337;
Enoch 2002: 379-380; Herstein 2012: 354-357); personal
integrity (George 1993: 124-125); moral constitution of self
(Herstein 2012, 357-364); and of conscience (Brownlee, 2012:
126-128). In contrast, others deny morality contains rights to
do wrong (Galston 1983; Overland 2007; Bolinger 2017).



Now to law. The concept of "legality" does not seem to
rule out legal rights to do legal wrongs (Herstein 2014: 27-31;
Laborde 2021: 6-7). And, as a conceptual matter, there can be
legal rights providing legal protections (claims, immunities) to do
that which the law forbids (Kramer 1998, 15-17; Herstein 2014:
32-45). In contrast, Laborde argues for a
"toleration" conception of legal rights to do legal wrong,
wherein right-holders are exempt (privilege) from legal prohibition on
ph-ing, yet remain vulnerable to expressive sanctions for ph-ing
(2021). Examples offered in the literature of legal rights to do legal
wrong include diplomatic immunity (Herstein 2014: 43-44) and
ministerial exemptions (Laborde 2021).


### 3.3 Claim-Rights Without Correlative Duties



Hohfeldian correlativity suggests that (claim-)rights are analytically
or formally equivalent with duties, so that a (claim-)right of one
person entails a correlative duty of another (Feinberg 1973:
63-64; Sumner 1987: 24-25). It is not clear, however,
whether this is in fact true. Namely, claim-rights do not always seem
to correlate with a duty (Honore 1960: 456-457; Feinberg
1973: 64-67; Raz 1970: 175-183; Lyons 1970: 45-55;
MacCormick 1977: 199-202; 1982: 161-162; Lyons 1994:
32-34; Kamm 2002: 480). 



For instance, law regularly recognizes rights even when it is unclear
or underdetermined what duties give those rights effect (MacCormick
1982: 163). At other times, the duty correlating to a right is
conditioned on certain states of affairs, so that the duty only vests
once the factual condition is met (Raz 1970: 226). MacCormick's
example is of a law granting the surviving children of a decedent a
right in the estate. The right is against the estate's executor
for a portion of the estate (once all debts and existing claims are
satisfied). Thus, at the time of its vesting, the right does not
correlate to any vested duty. It is only once an executor is appointed
by the courts that such duties form (MacCormick 1977: 200-203).




Accordingly, it is arguably both conceptually possible and practically
not unheard off for claim-rights to obtain without correlative duties.
Thus, even if a right is a (valid) claim--that is, a legal
entitlement to something--rights arguably do not necessarily
entail some correlative duty in others (Feinberg 1973: 65-67;
Feinberg 1980: 139-141). This seems to be in tension with
Hohfeldian correlativity when it comes to claim-rights, although some
disagree (Kramer 1998: 27-30).


### 3.4 Rights "*In Personam*" and Rights "*In Rem*"



Claims, privileges, powers, and immunities can manifest as either
rights *in personam* or *in rem*. Rights *in
personam* are rights the content of which designates a specific
and definite right-object. These rights are typically associated with
the law of obligations (contracts, trusts, and parts of torts),
wherein rights are expressly held against a specific person or
persons, such as a promisor, trustee, or tortfeasor. 



In contrast, the content of rights *in rem* explicitly
designates a "thing" that one holds the right over, not
against whom specifically that right is held. Accordingly, such rights
are not held against a definitive individual(s), but against an
indefinite set of right-objects. If you will, rights *in rem*
are held against every eligible individual yet, against no one
specifically (Hohfeld 1919: 68-114; Fitzgerald [Salmond] 1966:
235-237). Thus, rights *in rem* are describable as
normative relations between right-holders and everyone else (as
individuals, not a group) *in relation to* a certain
"thing" (Ross 1953: 230-231). Most commonly, rights
*in rem* are associated with property law, such as one's
rights to possess or to reasonably use and enjoy one's land,
which is held against every person (Radin 1938: 1155-1156;
Kramer 1998: 10 f2). Yet, the "things" over which rights
*in rem* are held include not only property (real, personal, or
intellectual), but also, for example, other rights, the integrity of
one's person, emotions, and reputation (Hohfeld 1919:
85-86; Fitzgerald [Salmond] 1966: 224). 



The distinction between these two types of rights tracks a difference
typical to their respective moral roles. Namely, rights *in
personam* seem designed to give legal effect to significant
relationships between specific individuals, while rights *in
rem* are typically oriented towards the value that exclusive
access, control over, security in, integrity of (etc.) certain
"things" have for right-holders (Fitzgerald [Salmond]
1966: 237-238). Moreover, given the association between the two
types of right with different branches of law, the distinction between
rights *in rem* and rights *in personam* emphasizes an
affinity between those legal branches and the two different moral
roles of each type of right. That is, much of the law of obligations
in about obligations between specific individuals, while property law
is focused more on securing the affinity between individuals and
certain "things". 



Finally, the way rights *in rem* and rights *in
personam* are deployed impacts the measure of freedom allowed in a
legal system. Broadly speaking, negative claim-rights are more
conducive to the personal liberty of right-objects than positive
duties. Negative claim-rights forbid a set of actions, leaving all
other options open. In contrast, positive claim-rights require certain
actions, thereby forbidding all other incompatible options.
Unsurprisingly, therefore, legal system that prize personal liberty
tend to adopt *in rem* negative claim-rights (e.g., the tort
right against interference with contract) and *in personam*
positive claim-rights (e.g., a contractual right to receive a
service). There are, of course, exception to this rule of thumb, such
as the *in rem* positive claim-right to a rescue found in
*Good Samaritan* laws (Jones 1994: 15-16). 


## 4. What Rights Are: Function and Value



Given that, as explained above, "rights" take different
forms and combine in a variety of configurations (as well as greatly
vary in content), what unites them under the single category of
"right"? 



The beginning of the answer is that rights are typically for or in
some sense entitle right-holders. Notice first that not all legal
norms exhibiting Hohfeldian forms are legal rights. For example, an
immunity from inheriting property rights on the grounds of one's
gender hardly seems to qualify as a "right" (Lyons 1994:
11); or, imagine a claim-"right" to be persecuted by state
authorities; or, consider a claim-right to die of starvation (Jones
1994: 29). As these examples suggest (as do the counter-examples
offered above to the notion that stand-alone privileges, powers, and
immunities necessarily qualify as "rights" in normal
discourse
 [Sections 3.1.2--3.1.4]),
 a feature seemingly differentiating rights from other norms
exhibiting Hohfeldian forms is somehow entitling or fulfilling a
certain function *vis-a-vis* the right-holder. What,
then, is this "function" of rights? How, in other words,
do rights entitle right-holders? 



But, before discussing the primary answers to this question, a few
preliminary comments are in order. First, beyond clarifying our
analytic understanding of the idea of "right", the
theories of the function of rights are justificatory. That is, they
are typically value-laden, describing the uniting overarching feature
or function of rights in terms of *value* to right-holders;
thereby explaining a moral value putatively inherent to all rights,
*qua* rights. Thus, although none of the theories on offer
manages to capture the entire scope of rights discourse, they do
capture core cases of rights, fleshing out what is inherently morally
appealing about them. Succinctly, in one way or another, all these
theories share the insight that a legal system committed to rights is
oriented towards the ideal of treating the individual person as
law's primary unit of concern. To paraphrase Thomas Hardy, if
"poetry is emotion put into measure", then rights are
liberal values put into law.



Second, this entry focuses on functions of legal rights as such,
independent of the content of any specific right. This is not to deny
that different legal rights (e.g., rights to freedom, property,
against self-incrimination) are uniquely valuable to right-holders.
Only that such right-specific values are not the focus of this entry.




Third, any necessary function that rights fulfill *qua* rights
*vis-a-vis* right-holders sets a condition for
right-holding. For example, under the Interest Theory, rights broadly
speaking benefit right-holders (see Section 4.2). Thus, if
a right does not benefit *X*, *X* does not hold that right.
Relatedly, as demonstrated in the supplement to this entry (referenced
below), the function of rights is intimately connected with the matter
of what types of entities can or cannot as a general matter hold
rights (see Jones 1994: 67-71; Kramer 2001: 29-58; Kurki
2019: 62-88). For example, under the Interest Theory, if
*X* is not the sort of entity that has interests, then *X*
categorically cannot hold any rights (e.g., Raz 1986: 166). 



There are several competing theories on the function of rights. This
entry focuses primarily on the two leading theories: the "Will
(or Choice) Theory" and the "Interest Theory". Some
attention is also given to "Demand Theories". Other
approaches include Kamm's view that rights can protect
right-holder's status as persons, such as respecting their
agency or equal moral worth, regardless of their interests (2002:
485-487); "Hybrid Theories", combining elements from
the interest and the Will Theories (Sreenivasan 2005: 267-274;
2010: 484-494; McBride 2017a); Wenar's
"Multi-Function Theory", denying rights have only a single
function (2005: 246-251), and his "Kind Desire
Theory" arguing that the function of rights turns on what
role-bearers desire in their capacity as bearers of that type of role
(2013; Schaab 2018); And, Cruft's "Addressive
Theory", emphasizing the second-personal aspects of
directed-duties (2019: 44-70). 



The debate over the theories of the function of rights revolves
heavily on the theories' extensional adequacy (that is, to what
degree a theory adequately captures the discourse of
"rights"). While each of the leading two theories captures
important instances of rights, neither manages to encompass the full
parameters of rights discourse. The debate remains unsettled, with
ever-growing nuance and ingenuity. See the supplementary document:



> 
> 
> Extensional Adequacy of Theories of Rights
> 
> 
> 
> 



for further details on some of this debate, including the primary
challenges and related refinements of the Will and the Interest
Theories. 


### 4.1 The Will Theory



According to the Will (or Choice) Theory, rights provide right-holders
a measure of normative control over themselves or others, functioning
to make right-holders "small-scale sovereign[s]" over
certain domains (Hart 1982: 183; 1983: 35). Most prominently,
right-holders control as a matter of choice the duties owed to them by
others, holding the Hohfeldian power to annul, waive, enforce, or
transfer such duties (Hart 1982: 183-4). The Will Theory also
fits with Hohfeldian privileges, providing options for how one may
choose to act or to exercise one's powers (MacCormick 1977:
193-194). Moreover, claim-rights and immunities function to
protect the free exercise of such privileges (Hart 1982: 172; Simmonds
1998: 218-220) and powers. Prominent proponents of the Will
Theory include Kant, Hart, Wellman, Steiner, Sumner, and
Ripstein.



The branch of law most hospitable to the Will Theory is private law.
Be it the law of contract, property, torts, or trusts, right-holders
typically wield considerable--although by no means
complete--control over Hohfeldian positions that they stand in in
relation to others. For instance, within limits and subject to various
exceptions, holders of private law rights are empowered to waive
compliance with certain obligations owed to them, forgo remedial
rights, and annul or transfer some such claims, as well as certain
private law powers, liberties, and immunities (see, e.g., Stevens
2007: 17-19). 



From a justificatory perspective, emphasizing right-holders'
choice and control, the Will Theory stresses the affinity between
rights and values that are related to an individual's control
over his/her lives, including personal liberty, self-realization,
agency, and autonomy. Thereby demonstrating how rights can neatly fit
political moralities concerned with such values (Kramer 1998: 75;
Sumner 1987: 47). 



That said, coupling claim-rights and powers over those claims (and
their correlative duties) can also make rights attractive to certain
political moralities that, at best, value human agency, autonomy, and
freedom not intrinsically, but instrumentally (Kramer 1998:
76-77). For instance, viewing law as a vehicle for wealth
maximization invites markets in legal entitlements, thereby requiring
the liberty and power to waive and transfer rights. 



Arguably, the justificatory virtues of rights as fleshed out by the
Will Theory can be subsumed under the Interest Theory. If so, this is
because values such as autonomy, freedom, and control secured by
holding power over the duties owed to one, are arguably themselves in
the interest of right-holders (MacCormick 1977: 207-208; Raz
1994: 149-50; Kramer 2001: 61; Edmundson 2004: 127). 


### 4.2 The Interest Theory



According to the Interest Theory, speaking broadly, rights protect or
further right-holders' interests. Accordingly, unlike Will
Theorists, Interest Theorists tend to emphasis claim-rights more than
powers (Kramer 2013: 246; 2017: 49). Still fitting the Interest
Theory, holding liberties, powers, and immunities is often also in the
service of one's interests (MacCormick 1977: 205). Prominent
proponents of the Interest Theory include Bentham, Austin, Mill, Lyons,
MacCormick, Raz, and Kramer. 



A canonical version of the Interest Theory is Joseph Raz's,
positing that rights are protected interests and that *X* has a
right if and only if 



> 
> 
> an aspect of *X*'s well-being (his interest) is a
> sufficient reason for holding some other person(s) to be under a duty.
> (1986: 166; 1994: 266-269) 
> 
> 
> 



Under this view, *X* holds a *legal* right if the law
holds *X*'s interest "to be sufficient ground to hold
another to be subject to a duty" (1994: 268). 



Prescriptively, in demonstrating that rights are protective of
right-holders' interests, the Interest Theory fleshes out how
rights are attractive to political moralities prizing individual
well-being and welfare. 



It is not obvious, however, that all legal norms identified as
"rights" under the Interest Theory indeed exhibit these
appealing features. First, it is not uncommon for legal rights to be
held by entities other than people. For instance, legal rights have
been extended to animals, plants, corporations, and even natural
phenomena (e.g., rivers or nature preserves). Depending on one's
conception of "interest", the interest-theory can
comfortably capture at least some such rights (Kramer 2001:
29-46). For example, it seems obvious that certain animals,
groups, corporations, and even plants have interests and, as such, can
be made better or worse off and, therefore, can in that sense hold
rights. 



Yet, an account of such rights as inherently morally favorable in
terms of benefiting right-holders would have to rely on values other
than individuals' well-being or welfare. Which in certain
instances seems unproblematic, such as in the case of animal rights.
Yet, in other cases, such as in the case of corporate entities, the
interests of which do not seem of inherent moral value, the notion
that in protecting interests all rights--*qua
rights*--share something morally appealing comes under
pressure.



Second, arguably even in the case of individuals not all
rights-protected interests are of any moral value. For instance, the
Iraqi *Penal Code of 1969* provides husbands the "legal
right" to "punish" their wives, to the exclusion of
crimes such as battery (such laws are, regretfully, not atypical;
similar laws existed in the West for centuries). Even if such legal
rights in some sense serve certain prudential or subjective interests
of husbands, and assuming the Interest Theory were to incorporate such
interests and identify norms protective of such interests as
"rights", it is not clear in what sense protecting such
interests makes rights--*qua* rights--morally
attractive. And remember, a primary motivation for developing theories
of the function of rights is ideally not to find just any uniting
feature of all "rights", but to identify one that is of
value. For a related discussion on how the Interest Theory may
arguably incorporate odd and seemingly valueless interests, and even
subjective interests that are objectively bad for one, see Kramer
(2001: 81-89). 


### 4.3 The Demand Theory



Focusing on claim-rights, Joel Feinberg and Stephen Darwall are the
most prominent defenders of a third theory of the function of rights
sometimes referred to as a "demand theory of
rights"--emphasizing the capacity or power of right-holders
to claim or demand. (Feinberg 1970; 1980: 130-158; 1992: 155;
Darwall 2006: 18-19; 2007: 60-65; 2010; 2011; see also
Skorupski 2010: 310-311; Gilbert 2018). Imagine a legal system
comprising just and reasonable duties to respect and safeguard others.
Yet, these duties are public duties not owed to those individuals that
they are designed to benefit. It is, therefore, a legal system of just
duties without correlative rights (at least non held by individual
beneficiaries). Feinberg finds such law morally wanting. In a world
without rights no one is legally *owed* justice, benevolence,
or care, and, therefore, no one is in a position to claim or demand
just treatment under the law. Accordingly, the unique moral function
of legal rights for right-holders is not to secure them just treatment
as such, but to provide them with claims for such treatment. Feinberg
finds this function morally precious, even in a world of benevolent
and law-abiding people who act justly towards others regardless of
whether they owe it to them or not. For Feinberg, holding claims is
intimately related to human dignity, as it engages people's
agency and capacity to make claims and provides them with a sense of
self-worth as creatures who are not only recipients of moral regard,
but are also owed it (Feinberg 1970: 252). 


## 5. Criticism: Rights' Disvalue to Right-Holders



The assumption that rights are inherently for right-holders has been
challenged. This entry only scratches the surface of this rich
critical terrain, which has much of its foundation in Karl
Marx's 1844 essay "On the Jewish Question".



Marx thought that legal rights at most provide right-holders with
formal justice and civic emancipation, not with freedom from material
need or social and economic control. For Marx, moreover,
society's primary legal and political institutions serve
economic production, with legal rights functioning as a primary
mechanism for the facilitation and enforcement of a social structure
that prizes not the interests, agency, welfare, or dignity of
right-holders but rather economic growth and the interests of the
economically powerful (see Waldron 1987b: 126-127). Thus,
rights' liberal facade is deceptive, concealing
rights' role in economic exploitation and social control (see,
e.g., J. Cohen 1983). 



This line of criticism can, however, go too far. Firstly, civil
liberties do benefit right-holders, to some degree. Moreover, even if
imperfect, rights (certainly in their more modern manifestations) can
and do provide a measure of social and economic freedoms,
entitlements, and justice (Waldron 1987c: 156-159), and have
occasionally facilitated social change and progressive politics. 



A second influential Marxist critique is that legal rights promote
egoism and social atomism. A criticism that also echoes in
 communitarian
 and
 conservative
 traditions in political theory. In a nutshell, by ordering
people's relations based on directed claims, duties, and powers,
rights distance and separate people, promote conflict and competition,
invite antisocial behavior, structure relationships based on economic
roles, and foster selfish and self-absorbed practices and unvirtuous
character. All at the cost of interpersonal relationships, social
solidarity, duties to one's community, acceptance of
responsibilities, a sense of belonging, and ties of fraternity and
community. (Marx 1844 [1987: 140-142, 146-147]; Taylor
1985: 187-210; Gutmann 1985; Waldron 1987b: 128-129;
1987c: 188). 



In response, the protections, liberty, and empowerment that rights
provide become crucial to right-holders exactly when social and
interpersonal ties and solidarity break down, or turn discriminatory,
or oppressively collectivist, or predatorial (Waldron 1987c:
189-190; Waldron 1993: 370-391). Rights in this respect do
not derail community as such, but rather partake in forming
communities that are morally legitimate (Finnis 2011: 210-218;
Jones 1994: 209-211). 


## 6. Legal Rights in Legal Justification and Reasoning: Outcomes and Reasons



Rights figure in legal reasoning in two very different ways. At times,
legal rights are part of *legal* justification and reasoning,
functioning as legal reasons in favor of a certain legal holding or
rule. In other instances, legal rights are themselves the outcome or
the "bottom line" of legal reasoning, embodying a legal
holding or a rule justified by reasons other than the right itself.




Consider the *Universal Declaration of Human Rights* (Finnis
2011: 210-213). Some of the Declaration's articles secure
all persons with certain rights (e.g., to liberty, life, own
property), yet those rights are subject to limitations given
conflicting values, such as for the purpose of securing the rights of
others, general welfare, and public order (Article 29 [2]).
Accordingly, such rights appear set up as reasons in favor of certain
legal positions, to be assessed against other competing
considerations. In contrast, other articles of the Declaration state
rights as prohibitions, such as in terms of "no one shall be
subject to", for example, torture or servitude, or "no one
shall be deprived of", for example, property or liberty. Some of
these prohibitions are qualified, while others are not. Regardless,
where applicable, these articles provide rights that appear
conclusory.



A right can figure both as outcome and a reason, even in the same
legal decision or legal context. As such, rights can seem
"intermediate conclusions" (Raz 1986: 181). As
"outcomes", rights are legal norms resulting from or
justified by the intersection or counter-weighting of different
reasons. Yet, under this view, such outcomes are not legal bottom
lines but rather "intermediate" outcomes, which are
themselves reasons for legal duties or other legal positions. For
instance, a judge may hold that a litigant's interest in ph
justifies her right to ph, and then further deliberate whether or
not to give effect to that right by imposing a remedial duty grounded
in one's right to ph. 


## 7. Legal Rights as Outcomes



Legal rights are often expressions of conclusions of law (Hart 1953:
15-17). For instance, civil rights are regularly treated as
articulations of the parameters of government power as it relates to
the liberties of individuals; parameters set by legal officials,
ideally based on assessing the various relevant considerations. Once
said assessment is completed, officials such as judges pronounce their
ruling in terms of the parties' "rights".
"Right as outcome" is comfortable within the Hohfeldian
picture of rights. Because if rights embody legal relations, they
arguably entail correlatives as a conceptual matter, relying on other
reasons for the matter of their justification (Halpin 1997:
31-32). 



For example, the American Supreme Court's decision in
*Roberts v. United States Jaycees* (1984) involved a national
nonprofit organization which limited full membership to males aged
18-34. This appeared in friction with the State of
Minnesota's *Human Rights Act* on account of
discrimination on the basis of sex. The U.S. Supreme Court framed the
legal matter as 



> 
> 
> a conflict between a State's efforts to eliminate gender-based
> discrimination against its citizens and the constitutional freedom of
> association. (612) 
> 
> 
> 



Ruling against United States Jaycees, the court held that the
organization's rights under the *First Amendment* did not
extend to its discriminatory practice, reasoning that the
organization's interests in freedom of association were
outweighed by the State's interest. Another example involves
courts bestowing legal status. Court may appoint individuals to
various roles, such as guardian, trustee, receiver, or executive of an
estate. These appointments, along with the powers, liberties, claims,
and immunities attached to them, are legal rights granted not on the
grounds of the rights themselves, but as the conclusion of judicial
deliberation involving other reasons.



Notice that even when legal rights are indeed outcomes, the same is
not necessarily true of the valuable *functions* such rights
would serve
 (Section 4).
 For instance, the relevant interests that a right--if
recognized--would further and protect for the right-holder, can
and do play a role in the justification and in determining the scope
of that right. In fact, very often it is the interests or dignity of
the parties to a legal dispute that guides courts in reaching a
ruling; which is then expressed in terms of the scope of the
parties' relevant legal "rights".



A virtue of "right as outcome" is that once the scope of a
right is determined, from that point on that right can serve as a
marker of the balance of the potentially complex legal reasoning
underlying it; thereby providing legal guidance and certainty as to
what people can roughly expect as a matter of right, and avoiding the
need for repetitive *ad hoc* decision-making in subsequent
similar cases. 



Jurisprudentially, "right as outcome" is hospitable to
skeptics of legal formalism. In a nutshell, formalism is the view that
legal determinations are governed by a logic internal to law itself,
without referencing or relying on extra-legal reasons or
considerations (for example moral, social, ideological, or
self-interested). A criticism of formalism typical to "legal
realists", is that the canons of legal interpretations and the
language and categories of the law--such as
"rights"--cannot fully determine law's edicts.
In reality, the criticism continues, extra-legal forces and reasons
are often (if not always) explicitly or implicitly incorporated into
determinations of what the law is (see Leiter 2005: 50-53). The
more skeptical one is of the notion of legal reasons, the more likely
it is that one would view "legal rights" as empty
formalistic rhetoric and less as genuine reasons for legal
determinations (e.g., F. S. Cohen 1935). As such, it makes sense to
transform law's language of "rights" into mere
legalistic expression of the culmination of the extra-legal
considerations determinative of what law is and what it ought to
be.



Normatively, over the centuries many have thought of legal rights as
(at least ideally) reflective of natural rights, that is of moral
rights not depended on enforcement or social convention, or
recognition; a view rooted in the
 natural law
 tradition. Legal rights are also often associated with
 deontological
 principles, eschewing considerations of utility and policy. 



The more dominant such views on the content of legal rights, the more
likely are those dismissive of natural rights and deontology to grow
hostile to treating legal rights as reasons. Accordingly, given the
influence (especially over the past 150 years) of approaches to
political morality based on consequentialist considerations of
utility, public policy, or the common good, it is not surprising to
find occasions of legal rights relegated from weighty legal reasons to
mere vessels for the legalistic expression of underlying public
policy. A key philosophical figure in this regard was Jeremy Bentham
(1843b: 490-534; see Hart 1962: 311-314; Edmundson 2004:
51-59). Bentham advocated the view that law ought to promote
good social consequences, as opposed to reflecting what he viewed as
vague, dogmatic, antiquated, and moralistic notions of natural rights,
famously branding the transplanting of natural rights into law as a
form of "mischievous nonsense" (Bentham 1843b: 501). 


## 8. Legal Rights as Reasons



As explained, rights often figure in law as legal reasons in favor of
certain legal holdings and rules (including other legal rights). Most
obviously, legal officials incorporate legal rights in their
deliberations as to what the law is in a particular case. As such,
under the view of "right as reason", legal rights are not
the outcomes of legal deliberation on what the law is, but rather are
among the legal reasons for such outcomes. Take for example the case
of *Gannett Co. v. DePasquale* (1979). Weighing the *First
Amendment* right to freedom of the press against considerations of
the common good and defendants' rights to a fair trial, the
court held that:



> 
> 
> [t]he right of access to courtroom proceedings, of course, is not
> absolute. It is limited both by the constitutional right of defendants
> to a fair trial ... and by the needs of government to obtain just
> convictions and to preserve the confidentiality of sensitive
> information and the identity of informants. (398) 
> 
> 
> 


### 8.1 Legal Rights as Preemptory Reasons



Rights are preemptory. A preemptory reason to ph is reason to block
considering or acting on certain other reasons pertaining as to
whether or not to ph (Hart 1982: 86, 253-254). Rights,
therefore, enjoy a measure of qualitative precedence over certain
other reasons, which is why rights are reasons that, in a sense,
"punch" above their normative weight (see, e.g., Nozick
1974: 171-173). That is, when in conflict with other even
weightier reasons, rights can still prevail--not by
quantitatively outweighing those competing reasons but by
qualitatively preempting them. Indeed, it is not uncommon that an
infringement of a legal right is impermissible even if in furtherance
of the overall good or utility (Dworkin 1977: 190-192; Lyons
1982: 113-118). 



Trying to capture the preemptory quality of rights, Dworkin borrows a
metaphor from the game of bridge (and other card games), referring to
rights as "trumps" (Dworkin 1984: 153-167). In
bridge, a card that is a member of the "trump suit"
defeats cards not in the suit, regardless of the cards'
numerical values. Similarly, rights override conflicting reasons as a
matter of category, regardless of the relative normative weight or
strength of those other reasons. 



Another prism for capturing the preemptory quality of rights are
"exclusionary reasons" (Raz 1975 [1999: 35-48]. An
exclusionary reason counts in favor of refraining from acting on
another reason. Viewed in these terms, the preemptory nature of rights
is explained not in terms of the weight or force of rights, but in
terms of rights' exclusionary nature (Kamm 2002: 488). Under
this view, a right to ph is not only reason to ph but also
reason to exclude and not to act on or rule based on at least certain
reasons not to ph--even if the relative weight of those
conflicting reasons is greater than that of the reasons counting in
favor of ph-ing. 


### 8.2 The Stringency of Rights: Absolute or Defeasible?



If legal rights are indeed legal reasons, are they absolute or
defeasible? A legal right is inviolable or absolute if, as a matter of
law, it preempts or otherwise overcomes *all* possible
conflicting legal reasons. 



In principle, legal rights' preemptory force can be absolute. An
example from international law is the human right against torture
enshrined in *Article 5* of the *Universal Declaration of
Human Rights*, proclaiming that "[n]o one shall be subjected
to torture or to cruel, inhuman or degrading treatment or
punishment". Another example is Justice Hugo Black's
*First Amendment* jurisprudence. The *Amendment*
states:



> 
> 
> Congress shall make no law respecting an establishment of religion, or
> prohibiting the free exercise thereof; or abridging the freedom of
> speech, or of the press; or the right of the people peaceably to
> assemble, and to petition the Government for a redress of grievances.
> 
> 
> 
> 



According to Justice Black,



> 
> 
> "no law ... abridging" means *no law
> abridging* ... The *First Amendment*, which is the
> supreme law of the land, has thus fixed its own value on freedom of
> speech and press by putting these freedoms wholly "beyond the
> reach" of federal power to abridge ... Consequently
> ... I do not believe that any federal agencies, including
> Congress and this Court, have power or authority to subordinate speech
> and press to what they think are "more important
> interests". (*Smith v. United States* [1959],
> 157-158) 
> 
> 
> 



The view that rights are absolute is often associated with
Dworkin's metaphor of "rights as trumps". Yet, while
Dworkin was of the view that rights trump certain utilitarian concerns
as well as considerations that are illegitimate in public policy (such
as racism) (1984; 1986: 388), he did not argue for the absolutist
position (Dworkin 1977: 93, 190-191; see Waldron 2000). Focusing
not on legal but on moral rights, Nozick comes close to rights
absolutism, yet even he may have had some doubts (Nozick 1974:
28-33; see Thomson 1977 [1986: 55-65]). 



In fact, preemptoriness does not necessarily entail absoluteness. And
while there are, arguably, some absolute rights (see Gewirth 1981),
such rights are not easy to come by in law or in morality (Feinberg
1973: 79-83, 94-97). Perhaps this is because when
confronted with extreme cases, or with great human need, or with
conflicting weighty rights, or with overwhelming public concerns,
absolutism is morally implausible. Moreover, were legal rights
absolute, the law would run the risk of becoming mired in intractable
contradictions between various conflicting yet absolute rights. 



That said, one path towards turning absolutism more plausible begins
with noticing that absoluteness does not denote scope (Feinberg 1973:
80-83; Dworkin 1977: 261; Schauer 1979: 903-905; Gewirth
1981: 3-4). Accordingly, if construed more narrowly in scope, or
if oriented towards narrow core cases, or if tempered through
exceptions, legal rights can sidestep clashes with other legal rights
and with highly weighty conflicting moral considerations, thereby
keeping their absoluteness while avoiding moral implausibility and
legal intractability. 



Yet, under such an approach much of what determines what the law is
are considerations not of right but of the parameters of rights,
shrinking the role of legal rights as legal reasons and pushing them
closer to "right as outcome". Moreover, a legal system of
absolute rights of a narrow scope would likely entail highly
convoluted rights, rife with numerous exceptions and qualifications to
the point of impracticality. In fact, constructing a working
frictionless system of absolute legal rights that are harmonious with
each other as well as with any other weighty consideration, is
practically impossible. 



Accordingly, rights' preemptory quality is likely more
accurately described not in terms of "trumping" but as
setting normative "thresholds"--excluding many, yet
rarely all possible conflicting considerations (Lyons 1994: 152;
Griffin 2008: 76). Thus, legal rights are mostly
defeasible--certainly in principle and at times also in actual
legal practice (Jones 1994: 50-56; Wellman 1995: 251-255).




"Stringency" stands for the extent of a right's
peremptoriness. For instance, an absolute right is infinitely
stringent (Thomson 1977 [1986: 55]). A right's stringency is a
function of the scope of conflicting reasons that the right trumps or
excludes, and of how demanding are the duties grounded in the right
(Kamm 2002: 489).



The type of reasons that rights can clash with are varied, and can
include reasons such as other rights, justice, and welfare (for a
discussion in the context of moral human rights see Griffith 2008:
58-66). 



In law, rights vary in stringency. The most stringent legal rights are
typically those rights the law deems "fundamental" or
"core", or rights protective of particularly significant
interests or values. These regularly include
 civil
 and
 human rights.
 The extent of a right's stringency and the legal doctrines for
determining it are matters of normative jurisprudence, political and
constitutional theory, and judicial practice. The same is true of the
weight of rights, discussed in the section below. Common
considerations relevant to such assessments include the ingredients of
the legal right's moral justification, background social and
political values and commitments, expediency, and institutional
considerations. 


### 8.3 Legal Rights as Straightforward (Non-Preemptory) Reasons



A right to ph is not only preemptory of certain reasons not to
ph, but is in itself reason to ph. Were this not the case, a
right to ph would be wholly negative, excluding reasons against
ph but not counting in its favor. For instance, one's right
to privacy in one's home is not only reason not to act on
certain (even if weighty) reasons favoring invading people's
homes, but also a reason not to do so. This dual reason-giving nature
of rights is captured in Dworkin's "trumping"
metaphor. 



Accordingly, even if a right to ph is not sufficiently stringent to
exclude certain conflicting reasons, it remains a (non-exclusionary)
reason to ph, to be straightforwardly weighed along with other
relevant reasons that the right does not trump. Moreover, the outcomes
of such weighing can involve compromises and partial consideration of
the different conflicting reasons (Aleinikoff 1987: 946).



It is here where jurists sometimes get rights wrong. That a right is
also a straightforward reason to be balanced against other reasons on
the basis of their respective weight does not entail rights are wholly
non-preemptory. Treating rights only as straightforward reasons
distorts the primary role that rights occupy within practical and
legal reasoning--that is, rights' preemptory quality. 


### 8.4 Rights as Reasons for Duties



At times, rights justify correlative duties (MacCormick 1977:
199-208; Dworkin 1977: 171; Raz 1986: 167; Feinberg 1992: 156).
That is, claim-rights are reasons for duties as well for excluding
reasons against them. And, in the absence of countervailing reasons,
rights justify such duties (Raz 1970: 226-227; 1986: 171). Some
argue that in duty-based normative systems (for example Jewish law,
see Cover 1987), the direction of the justification--from right
to duty--can, in principle, run in reverse, that is from duty to
right (Waldron 1990: 69-73; Kramer 1998: 37-39). In any
case, the normative priority of rights over duties may (Waldron 1984a:
12; 1990: 84) or may not (Kramer 1998: 35-40; Simmonds 1998:
158-165) refute Hohfeldian correlativity. 



Relatedly, the same claim-right seemingly can count in favor of
different and changing duties, for instance given changes in factual
circumstances. For example, the right to education is a reason for
different duties in the twenty-first century than it counted in favor
of in the nineteenth century. Moreover, in practice legal rights are
often the instruments of legal change, justifying new previously
unrecognized duties (Raz 1970: 225-227; 1994: 269). This
dynamism arguably cuts against the seemingly more frozen view of the
normative relation between rights and duties implied by Hohfeldian
correlativity (Raz 1970: 226; 1986: 185-186). In addition,
right-dynamism undercuts the Hohfeldian notion that what individuates
any specific claim-right is the content of its specific correlative
duty. Among possible responses on behalf of Hohfeldians is that so
called "dynamic rights" are in fact only inchoate rights
(Kramer 1998: 41-48). 


### 8.5 Conflicts of Rights



As reasons, rights can conflict within practical reasoning (Wellman
1995: 202-203). The paradigm of a conflict of rights involves
incompatible claims (Waldron 1993: 206; Kamm 2002: 499-500).
Moreover, rights can conflict when the practical conditions for their
application are incompatible (Wellman 1995: 200-202). Thus,
Wellman contends that "two rights conflict when both cannot be
exercised and enjoyed fully in any given situation" (1995: 202).




A helpful distinction in this context is between "abstract
rights", which are rights expressing broad aims, and
"concrete rights", which are specific as to their
application to concrete cases (Dworkin 1977: 93-94). At high
levels of abstraction, it is largely unproblematic that legal rights
are at least seemingly incompatible; as such rights tend to imply
rather vague and not fully determined demands (Feinberg 1973: 71). For
example, although people's right to freedom can appear to
conflict with others' right to equality, these two rights can
co-exist relatively peaceably in the same legal system. It is when
making more concrete prescriptions that conflicts of legal rights pose
more of a challenge (Feinberg 1973: 69, 72). While the distinction
between "abstract" and "concrete" is a matter
of degree, a clear case of conflicting concrete rights is of two legal
rights for the exclusive possession of the same item at the same time.




Conflicts of rights are sometime dissolved by redrawing the scope of
the conflicting rights so as to avoid overlap (Feinberg 1973:
72-73; Wellman 1995: 202-210). Yet, law and morality can
at times resist such harmonizing via adjustment in scope (Wellman
1995: 211-215). 



To resolve these conflicts, law can designate a hierarchy or priority
among types of rights--so that some rights, at least under
certain conditions, preempt others (Feinberg 1973: 76-79;
Wellman 1995: 215). For example, in *Marsh v Alabama* (1945)
the U.S. Supreme Court held that:



> 
> 
> When we balance the Constitutional rights of owners of property
> against those of the people to enjoy freedom of press and religion, as
> we must here, we remain mindful of the fact that the latter occupy a
> preferred position ... As we have stated before, the right to
> exercise the liberties safeguarded by the *First Amendment*
> "lies at the foundation of free government by free men",
> and we must in all cases "weigh the circumstances and ...
> appraise the ... reasons ... in support of the regulation of
> (those) rights". (509)
> 
> 
> 



When no such hierarchy obtains, conflicts are resolvable through some
form of balancing of the rights' respective normative weight or
force. For instance, Thomson suggests balancing the interests
protected by the competing rights (Thomson 1990: 149-175).
Relatedly, Waldron suggests that when conflicting rights promote
related interests, the right that best promotes that type of interest
ought to prevail (Waldron 1993: 222-223). In fact, courts often
resolve conflicts of rights by balancing the respective interests that
those rights protect as well as each rights' other respective
justifying reasons (Wellman 1995: 209-210). Critical of both
Thomson and Waldron, Kamm offers tests of her own for settling
conflicts of rights (2001: 251-255; 2002: 500-506; 2007:
263-272), as does Gewirth (1978).


### 8.6 Violated and Infringed Legal Rights as Reasons



Even if infringed, rights remain reasons. To understand how, it is
helpful to distinguish between "infringing" on a right and
"violating" it. *X*'s right that *Y* ph
is *infringed* on if *Y* fails to ph; yet an
infringement is not necessarily also a violation. As Judith Jarvis
Thomson clarifies, *X*'s right is violated if and only if
it is infringed *wrongfully* (Gewirth 1981: 2; Thomson 1977
[1986: 51-52]; 1990: 122). Accordingly, if a right is
*overridden* (preempted or outweighed) by competing reasons, it
follows that acting against that right is permissible, or justifiable,
or even required. That right is, therefore, infringed on, yet it is
not violated (Gewirth 1981: 2; Thomson 1977 [1986: 50-52];
Thomson 1990: 100-104, 151-166). 



Violated rights (or their underlying reasons) continue, in one way or
another, to project normative force, thereby still counting as legal
reasons. This is prominently manifested in remedial rights and
correlative remedial duties justified by the violation of other rights
(see
 Section 10.4;
 Weinrib 1995: 133-144; Raz 2004: 189-193; Gardner 2011:
28-37, 45-46; Ripstein 2016: 233-262; Steel 2020).
It is, however, worth noting that violated rights do not always
succeed in grounding a remedy and can be overridden by other
considerations in this regard. For example, in *Newfoundland
Treasury Board v. N.A.P.E*. (2004) the Supreme Court of Canada
found that the defendant had violated the plaintiffs' Equality
Rights under the *Canadian Charter of Rights and Freedoms* by
paying them less than their male colleagues. Yet, the Court affirmed
granting the plaintiffs only a partial and belated remedy due to the
dire fiscal circumstances of the government employer. 



Interestingly, when overridden, infringed rights arguably also
continue to project normative force, as a kind of residual legal
reason. When a right is overridden, infringing on it is not wrongful,
but it is still in a sense a wrong to the right-holder. Infringed
overridden rights are neither expunged nor normatively inert (for a
discussion in the context of moral rights, see Jones 1994:
195-198); in fact, they can even justify legal outcomes, even if
not the outcome that they are a right for. A legal example is the
classic case of *Vincent v. Lake Erie Transp.Co*. (1910). One
reading of the case is that although the defendant had a
"necessity" defense and, therefore, was justified in
trespassing on the plaintiff's land (thereby *infringing*
on his property rights), the defendant was still legally
required--on the grounds of the infringement--to compensate
the plaintiff not for the trespass itself (i.e., the infringement) but
for the damages caused by the (legally justified) infringement
(Thomson 1990: 103-104).


## 9. The *Moral* Justification of Legal Rights



The moral justification of a legal right is the justification of the
normative category detailed thus far: a preemptory
 (Section 8)
 or conclusory
 (Section 7)
 legal norm that has the form
 (Section 3)
 and function
 (Section 4)
 of "right". The moral justification of legal rights is
not self-evident. A right's legal validity
 (Section 1)
 does not guaranty its moral justification. Indeed, it's hard to
deny that positive law can contain rights that are morally unjustified
(Lyons 1982: 113; 1994: 154). There is a voluminous and diverse
literature on the moral justification of legal rights, and advocating
what the normative content of legal rights ought to be. Mostly, these
involve matters of political philosophy and normative jurisprudence,
extending beyond the scope of this entry; yet, some issues cut closely
to the elucidation of the concept of "legal right" itself,
warranting attention here.


### 9.1 The Function of Rights and the Moral Justification of Legal Rights



Accepting that rights typically further interests, or choice, or
agency, or dignity of right-holders, and accepting that these
functions are at least typically valuable in how they favor or entitle
right-holders, are those values sufficient to justify the legal rights
that realize and further them? 



At least sometimes they are. Plausible examples are the legal rights
to life, bodily integrity, autonomy, and freedom, which are arguably
grounded in those values to right-holders (Raz 1994: 48-49). The
same seems true of certain social rights, such as the right to
adequate healthcare or to minimum wage. In fact, often the moral value
of a right *vis-a-vis* the right-holder justifies the
right, even when in conflict with the interests of others or with the
common good. 



Yet, this is not always the case. First, as intimated above
 (Section 5.2),
 even if rights always in some sense entitle or are in some way for
right-holders, it does not necessarily follow that this value to
right-holders has any intrinsic justificatory force in favor of the
right (even if it often does). For instance, groups, corporations, or
individuals in their capacity as public officials have a will and
interests, as well as hold-rights protective of them. Yet, such will
or interests are not of intrinsic moral value and, therefore, do not
have intrinsic justificatory force in favor of their protection.
Moreover, arguably legal rights can protect right-holders'
immoral interests. Such as, for example, the self-serving interests of
predatory slumlords, sometimes protected by legal property rights.
Therefore, if justified, the moral justification of such legal rights
must derive from reasons other than the (amoral or immoral) interests
that those rights protect (Raz 1995: 31-32). 



Second, even in the common case wherein the function of a legal right
*vis-a-vis* the right-holder does indeed morally count
in favor of the law adopting that right, at times there is a
justificatory gap between the value of that function and the
right's justification. Here the contribution of the
right's function to the right's justification is, on its
own, insufficient, suggesting that if morally justified, it is by
reasons not exclusive to the value of the right's function (Raz
1994: 48-49). Surprisingly, a common misstep in the discourse on
the justification of rights is confusing interest with right. As if
the mere demonstration that *X* has a weighty interest in ph
directly entails *X* morally ought to have a legal right to
ph. Yet, the fact is that *X*'s interest in ph
perhaps counts in favor of *X* holding a legal right protective
of that interest, but it does not necessarily justify it and it is
certainly not its equivalent. 



Such justificatory gaps are often bridged by reasons of the common
good (or public interest) or the interests of other individuals
counting in favor of *X* holding a certain legal right (Raz 1994:
49-55; 1995: 33-34; Harel 1994: 704-714). Examples
are plentiful. For instance, arguably parents' rights for tax
breaks and welfare benefits are predicated not only on the interests
of the parents' themselves (the right-holders) in the means to
care for their children, but also on the interests of the children and
on the public's interest in the fulfillment of these parental
interests. The same is true of patent law, wherein intellectual
property is granted not only on the grounds of innovators'
interests in controlling their inventions and in enjoying their
proceeds, but perhaps more so to incentivize future innovators and
investors by the means of satisfying those interests, thereby serving
the overall social interest in innovation. The same form of argument
is likely applicable, for example, to other types of property rights
(Raz 1995: 33-34) as well as to corporate rights (Raz 1986: 179;
1994: 275). Even the right to free speech finds much of its
justification in its contribution to the common good (e.g., promoting
critical thought, bolstering democracy, enriching public discourse,
promoting innovation) or to the interest of third parties (such as
"listeners"), the moral significance of which often
greatly exceeds any benefits that most individual right-holders derive
(at least directly) from the protections their free-speech rights
afford them (Raz 1986: 178-179; 1994: 54-55; Harel 1994:
704-714; 1998; 2005: 196).


### 9.2 Legal Rights and the Common Good (or Public Interest)



Rights and the common good are often considered antagonistic (Lyons
1982; 1994: 147-176; Kamm 2002: 489-497; for a discussion,
see Jones 1994: 50-61). For example, characterizing rights as
"deontological side-constraints" on the promotion of the
common good (Nozick 1974: 28-35); or, the view that rights vest
when collective goals are insufficient to justify depriving or harming
an individual person (Dworkin 1977: xi, 91, 190-192, 269; 1984:
153). 



More specifically to legal rights, something in the individualistic
spirit of views such as those of Nozick and Dworkin rings true. Legal
rights certainly can function as bastions of individual
right-holders' interests, agency, dignity, autonomy, control,
and liberty even in the face of utilitarian ideals or, more generally,
the common good (Lyons 1982; 1994: 147-176). In contrast, at
times the common good is found to override certain individuals'
legal rights (Wellman 1995: 251-255). Nowhere is this tension
more apparent than in the case of constitutional or
"fundamental" rights, which are often couched in terms of
limitations on state power over individual citizens. Yet, this tension
also manifests in more mundane clashes, such as in the case of
wasteful and inefficient use of personal property, which is often
protected by the legal right to property (Lyons 1982: 115-118).




Is this individualism, which is typical of legal rights, compatible
with the view that the moral grounds of legal rights can and arguably
often do include reasons of the common good (see
 Section 9.1)?
 Arguably yes. 



Firstly, taken in aggregate, certain legal rights provide for the
various aspects of individuals' well-being; and, if such rights
are enjoyed by all--securing people's dignity, liberty,
welfare etc., then rights thereby secure a significant measure of the
common good (Finnis 2011: 2010-218). 



Secondly, some legal rights are group rights, ideally furthering the
individual interests of the members of the group as members of the
group (Raz 1986: 207-209). Such rights can, therefore, align
with the common good (so long as all relevant parties are members of
the group). Examples include cultural and language rights and
peoples' right to self-determination (e.g., Margalit & Raz
1990). 



Thirdly, even if a norm is justified by the common good, the practice
and application of that norm arguably must be guided by the content of
the norm alone, not by its justification (see, e.g., Berkeley 1712:
sec. 31; Rawls 1955). When someone "stands on" his or her
legal rights, it is invariably under conditions of conflict with the
claims or interests of others or with the common good. Accordingly, at
least at the level of legal practice and in particular cases, rights
and the common good are indeed sometimes antagonistic (Lyons 1982).
Yet, from this it does not follow that at the level of their moral
justification legal rights are necessarily or even typically
inhospitable to or incompatible with the common good. Clearly if a
legal right is in conflict with the common good, and if that right
prevails as a matter of law, the common good suffers. Nevertheless,
such an outcome in a specific case is not necessarily averse to the
common good when viewed from the broader perspective of the
rule's justification (Sumner 2006: 192-195). It is often
in the common good for law to grant certain rights to individuals;
rights that, on occasion and in specific cases, setback the common
good in favor of individual right-holders (e.g., Greenawalt 1982).
Mill, for instance, arguably advocated such a view of legal rights
(Sumner 2006: 189-192, 195-197):



> 
> 
> [to] have a right, then, is, I conceive, to have something which
> society ought to defend me in the possession of. If the objector goes
> on to ask, why it ought? I can give him no other reason than general
> utility. (Mill 1863: Ch. 5. Par. 25) 
> 
> 
> 



Many rights of criminal procedure, to give just one example, exhibit
this justificatory structure. Such as the rights to legal
representation and against unlawful search and seizure, which can
shackle the criminal justice system, sometimes resulting in less
effective law enforcement. And still, on balance, right-based
limitations on the coercive and punitive branches of government are
widely recognized as in the common good. 


### 9.3 Moral Rights and the Justification of Legal Rights



The justificatory relation between moral and legal rights is complex.
Some legal rights arguably find at least some of their moral
justification in certain moral rights. In fact, arguably there is
something about moral rights that counts in favor of their practical
implementation and enforcement, such as through law (Hart 1955:
177-178). For instance, at times legal rights approximate their
putative moral counterparts, functioning as moral rights roughly
recognized in law. For example, the content of legal rights to life or
liberty arguably partially mirrors moral rights for the same values.
In fact, human rights law is often considered to give legal
recognition and even to roughly mirror moral human rights. When this
is the case, arguably part of what justifies such legal rights are
their moral counterparts. That said, given the complexity and
contingency of systems of positive law, there is perhaps something
simplistic in the mirroring view of how legal rights are justified by
moral rights (for a critical evaluation see Buchanan 2013; Buchanan
& Sreenivasan 2018; Tomalty 2016). 



Moral rights can also lend moral justification to legal rights less
straightforwardly. For instance, a legal right to ph may protect
and further adherence to a (or several different) moral right(s) to
something else altogether. For example, the legal right to due process
of law or the legal right to vote arguably draw some of their
justification from their role as a means for the fulfillment of a
variety of moral rights, such as, for instance, the rights to dignity
and liberty. 



Nevertheless, arguably certain moral rights do not at all count in
favor of legal rights, be it in the form of a legal counterpart
(Feinberg 1992: 156-158, 161-162; Brownlee 2012:
125-126; Buchanan & Sreenivasan 2018: 218-219) or
through some other type of legal right. For example, even assuming
certain cases of terminal illness involve holding a moral right
against one's doctor to active euthanasia, it is not at all
clear that such a right would justify a legal right to that effect,
even if just for the unconscionability of enforcing such a right.
Moreover, moral rights can count in favor and even justify legal
arrangements that do not take the form of any legal right (Waldron
1999: 217-219). For example, children may have a moral right to
an education, yet plausibly the ideal way of assuring children obtain
an education is by imposing a system of compulsory schooling. 


## 10. Features Salient to *Legal* Rights


### 10.1 Institutional Rights



Many of the features salient specifically to *legal* rights
arise from law being an institutional system of norms (Raz 1979:
103-121), largely oriented towards action-guiding and towards
aspects of human behavior that can be adjudicated (Raz 1994:
255-259). Ingrained in law, legal rights, therefore, tend to
exhibit a practical orientation and institutional features less
dominant in non-institutional rights, such as being subject to
(in)validation, recognition, adjudication, legislation, enforcement,
and inclusive of and nested in a rich network of procedures. 



Legal rights also exhibit features absent or more muted in rights
found in normative systems of non-legal institutions, such as social
clubs, trade unions, or universities. Features derived from
law's relative greater social importance; law's claim to
supremacy over other institutional normative systems under law's
jurisdiction; the far greater range of activities that can and
typically do fall under law's domain; law's
compulsoriness; and, law's commonly greater use of remedies,
sanctions, and violence (Raz 1979: 115-121; Sumner 1987:
70-79). 


### 10.2 Procedural Rights



The division between law's substantive and procedural norms is
foundational. Broadly, procedural norms are norms bearing on the
administration of the engagement with other (mostly substantive)
norms. Given its institutional nature, law typically involves a slew
of procedural norms. In legal systems respective of rights, procedural
rights often control how (i.e., the procedure of) certain other norms
can or ought to be created, deliberated on, and applied in the case of
the right-holder. Examples include rights to a hearing, trial by jury,
confront witnesses, notice of accusation, receive reasons for official
decisions, finality, appeal, evidentiary rights, and many more. Not to
deny the existence of noninstitutional procedural moral rights (Enoch
2018), although some have (C. H. Wellman 2015); yet, there is no
normative domain in which procedural rights are more central or
developed than law. 


### 10.3 Imperfect Rights



Echoing Grotius's classic distinction regarding moral rights
(see Darwall 2012: 306-307), law distinguishes between
"perfect" legal rights, which are enforceable, and
imperfect legal rights, which are not (Fitzgerald [Salmond] 1966:
233). Although there are imperfect legal rights (e.g., unenforceable
contracts, certain immunities, and claims barred by lapse of time),
these are not the norm (Fitzgerald [Salmond] 1966: 233; Raz 1994:
256). Law is primarily oriented towards practical application, and
probably for good reason. As such, typically legal rights are rights
that the law is willing and able to adjudicate and, if violated, to
impose remedies or sanctions for their violation. Thus, imperfect
legal rights seem to cut against the practical grain of law,
explaining why they are atypical. Imperfect moral rights are not
similarly scarce.


### 10.4 Remedial Rights and Rights of Action



Characteristic to legal rights and certainly of rights in private law,
is a two-tiered system of interrelated norms--primary and
secondary (Fitzgerald [Salmond] 1966: 100-104; Paton 1972: 487).
Primary norms grant rights and impose correlative duties. Following
law's ancient maxim that "where there is a right, there is
a remedy" (*ubi jus*, *ibi remedium*) (Blackstone
1765-9: 23; Goldberg 2005: 531-59; Goldberg & Zipursky
2020: 25-51, 82-110), when a primary right is violated law
typically provides right-holders with a right to recourse (Stevens
2011: 133-134; Gardner 2019: 18-19) or, at the very least,
with a right of action to pursue recourse against the wrongdoer
(Zipursky 1998; Smith 2012: 1727-1728; Goldberg & Zipursky
2020: 98-103).



Remedies can take the form of enforcement of the violated (primary)
right, either through self-help, policing, or a court order. Yet,
enforcement is sometimes less favored, impossible, impractical,
inequitable, or too costly. If so, law typically provides victims of
rights violations with secondary rights, which are remedial rights
grounded in the violation of the primary right. Secondary rights are
typically for restitution of unjust gains or for compensation for the
violation of a primary right and for resulting deprivations and
proximate losses. Secondary rights are normally accompanied or
preceded by rights of action to pursue their enforcement through the
mechanism of the state (Paton 1972: 487-493). Importantly,
remedial rights and rights of action against the party who violated a
primary right, and are typically held exclusively by the party who
held that right (Zipursky 1998: 4). 



The intricacy of secondary and, more broadly, of remedial rights in
the law, far exceeds anything found in moral theory. Moreover, lacking
institutions of adjudication and enforcement, morality does not
obviously involve formalized straightforward rights of action to
pursue recourse for rights violation.