Law is the body of rules and institutions that shape our world and shape behavior. It’s often one of the most contentious topics in contemporary politics.
Legal rights refer to those claims, privileges, powers and immunities individuals or groups have under the law against others – especially those who owe them obligations. These can range from private-law rights in contracts, property, torts and trusts to some public law rights such as life and liberty.
Legal rights can be created or taken away through two primary legal mechanisms: “acts of law” and “legislative decisions.”
Acts of law can grant legal rights by virtue of their power to recognize acts that purport to create rights or entitle someone to certain privileges. These may be based on unilateral actions such as gifts or forfeitures; or they may be grounded in agreements or judicial decisions (Fitzgerald [Salmond] 1966: 333-341; Raz 1994: 256).
Legislative decisions have the power to grant legal rights by creating them through laws’ ability to regulate and enforce them. These rulings may take the form of either positive laws or negative regulations (Raz 1979: 115-121; Sumner 1987: 70-79).
Moral rights tend to be practical in nature and legal rights may run counter to that. Nonetheless, imperfect legal rights do exist.
These atypical rights, such as unenforceable contracts and certain immunities, tend to have more muted characteristics than normative systems found within social clubs, trade unions or universities (Raz 1979: 115-121; Fitzgerald 1966: 233).
Legal rights also possess a special moral function for right-holders that are absent in other normative systems. This stems from their capacity to claim or demand that they be treated fairly under the law.
At times, these rights can be so preemptive that they disregard many, though rarely all, competing considerations–including the common good. Furthermore, over time and through practice they may become so strict that conflicts between rights are resolved by adjusting their scopes in order to prevent overlap (Feinberg 1973: 72-73; Wellman 1995: 202-210).
Even when used preemptively, legal rights can still fail to achieve absoluteness and become mired in intractable contradictions (Feinberg 1973: 79-83; Gewirth 1981). These issues arise due to the high level of abstraction many legal rights occupy.
Despite this strictness, some legal rights can still demonstrate features of preemptiness and justificatory structure that are reminiscent of individualistic views such as Nozick and Dworkin’s. For instance, constitutional or fundamental rights take precedence over other legitimate reasons that a reasonable state could find to override them.