What Is Law?

Law is a set of rules that a government makes to govern the lives of citizens. If a person breaks these rules, they may be fined or go to jail.

The term “law” is generally used to refer to the law in a particular jurisdiction, although it can also be used more broadly to describe all laws of a nation or state. A law is usually a rule made by an authority and that must be obeyed, such as not stealing or murdering people.

Historically, the term law was often derived from a feudal system of property rights in which land was possessed by aristocrats under various tenures. In England, this led to the emergence of the “common law” in the medieval period, with the judicial courts at the King’s Bench, Common Pleas and Exchequer applying a standard set of rules, most commonly the principles outlined in Littleton’s Tenures.

These principles were then adapted by other courts in different parts of the country to reflect local and group customs or privileges. However, as the feudal system of relations diminished, so did the importance of these accumulated and standardized rules.

The elucidation of the concept of legal right is primarily compatible with the tradition of legal positivism in general jurisprudence, although it does draw on a variety of jurisprudential traditions and perspectives as well.

A key feature of legal rights is that they figure in legal reasoning in two very different ways: either as the outcome or as part of the justification and reasoning for a certain legal holding or rule (Raz 1994: 268). While this can be argued for non-institutional rights as well, such as procedural moral rights or the broader category of legal justice, the elucidation of the conceptual framework in which legal rights function is typically based on an institutional orientation and rich network of procedures.

First, there is the “right as outcome” theory, a normative jurisprudential approach that sees rights vesting in a legal rule. This theory is hospitable to skeptics of legal formalism and sees the logic of law itself as the primary source of determining law’s edicts.

Second, there is the “right as a choice” theory of rights, an action-oriented jurisprudential approach that sees right-holders controlling, through a “will,” as a matter of choice, what duties they owe to others. This theory is hospitable to Hohfeldian privileges, as it fits with claim-rights and immunities that enable right-holders to control their own actions, exercising powers in a limited manner or under a limited range of conditions.

Third, there is the “right as demand” theory of rights, an action-oriented theoretical approach that sees rights conferring a capacity or power on right-holders to claim or demand what they believe they are entitled to. This theory is hospitable to social philosophers such as Joel Feinberg and Stephen Darwall, who see rights fostering correlative duties, such as those that protect others from harm or that prevent them from being exploited.