Law is the system of rules governing how people act, or how institutions, such as nations or governments, are structured. It involves both the creation of rules and enforcing them.
Legal rights are one of the most basic and pervasive building blocks of law.
The term “right” is often used in legal terms to refer to a Hohfeldian position that right-holders have correlatively owed to other parties, and which they can either exercise or passively enjoy (Lyons 1970; Sumner 1987). These positions include claim-rights, privilege-rights, power-rights, and immunities.
Claim-rights are the most common Hohfeldian position and are usually associated with the Will Theory of law, which holds that law is based on the principle that individuals have morally independent interests.
For this reason, right-holders can unilaterally change the duties owed to them or annul or waive such duties, or forgo certain remedial rights; they may also transfer or assign some claim-rights to others, and appoint other people to take legal actions on their behalf.
Some claim-rights are active while others are passive, such as a privilege-right that enables right-holders to impose obligations or transfer rights in exchange for some obligation; these are sometimes referred to as claim-demands.
Another theory is the demand-rights theory, which holds that rights are primarily designed to compel right-holders to act in particular ways. It is often criticized for a lack of a corresponding ascription of correlative duties to right-holders.
Unlike the demand-rights theory, however, the will-rights theory holds that right-holders have a duty to respect or safeguard other persons. It also argues that such duties are public duties not owed to the individuals that they are designed to benefit.
This theory is defended by several prominent legal philosophers, such as Joel Feinberg and Stephen Darwall.
The most prominent proponent of this theory is Joel Feinberg, who argued that the Will Theory of law should be understood as a demand-rights theory (Feinberg 1970; 1980: 130-158; 1992: 155; Darwall 2006: 18-19; 2007: 60-65).
While many claim-rights theories have been developed in recent years, it is still the case that most of the more established ones are founded on the Will Theory of law.
Although a number of claims-rights theories are still being pursued, it is increasingly clear that the demand-rights theory provides a more comprehensive picture than previous theories of the function of rights.
According to this theory, right-holders have a duty to protect other people from harm or injustice. It is also a general belief that legal systems are more likely to achieve this goal when the rights owed to right-holders are specifically designed to compel them to act in a way they consider desirable.
In this view, the will-rights theory of law is a particularly powerful one for enabling a legal system to achieve its ideals.
Other important claims-rights theories include the ascription theory, which argues that rights are primarily owed to the individual. This is a common view in moral theories, as it is largely compatible with the notion that rights should compel people to do good.
