The Basics of Law

Law is a field of study focusing on the rules and principles that govern society. This field of study can be divided into several sub-fields: the law of obligations; constitutional law; criminal law; family law; intellectual property; and legal jurisprudence.

The law of rights is one of the most basic and pervasive building blocks of law. The term “right” generally refers to one of the following types of claims, privileges, powers, and immunities: (i) rights in personam; (ii) rights in rem; and (iii) rights in mixed rem/personam forms.

Typically, right-holders hold the Hohfeldian power to annul, waive, enforce, or transfer the duties owed to them by others (Hohfeld 1982: 183; 1983: 35). This capacity can be exercised either in conjunction with other Hohfeldian privileges, rights, and powers or in isolation from them.

In both cases, however, the right-holder holds a Hohfeldian claim to a particular ph, a value that can include access to certain things, control over certain activities or functions, security in, and integrity of specific “things” (Fitzgerald 1966: 333-341; Paton 1972: 319-320).

These values function to provide right-holders with a measure of normative control over themselves and others. They also serve to protect the free exercise of those powers and privileges by ensuring that they are not interfered with or abused by others (Hart 1982: 184; MacCormick 1977: 193-194).

Some scholars have argued that rights are a form of deontological side-constraint on the promotion of the common good (Lyons 1982; 1994: 147-176; Kamm 2002: 489-497; for a discussion, see Jones 1994: 50-61). These theories argue that legal rights should not override the collective goals of society or interfere with the free and equal enjoyment of those goals by all members.

Moreover, these arguments suggest that rights should not be considered a substitute for morality, but rather should serve as an additional and necessary component of society’s ethical system. Such an approach is a welcome counterpoint to the widespread view that legal rights can be a source of social stumbling blocks or inequalities.

Another important issue for the discussion of law of rights is whether and how to distinguish between different types of rights. In this regard, Hart and other judicial scholars have argued that there are two distinct and mutually exclusive categories of rights: (i) “naked” or standalone rights; and (ii) “rights in mixed rem/personam forms.”

Stand-alone Rights

The concept of a stand-alone right, often referred to as a liberty or a freedom, is a common motif in Hohfeldian thought. This concept is commonly associated with Hohfeld’s view of the four types of legal right, each characterized by its unique, independent, and largely self-evident moral role.

This premise can be viewed as an extension of the Will Theory (Hart 1982: 183-4), a philosophy that posits that people choose what they do or how they do it. It is not, however, a completely accurate portrayal of Hohfeldian rights as a whole.

The main problem with the Hohfeldian position that stand-alone rights qualify as rights is that a stand-alone right can not be enforceable against others. This is because, as Hart and other judicial scholars have argued, such an unenforceable right would not be in the “strictest sense” of the word “right” (Hart 1982: 165; Sumner 1987: 36). The same argument applies to rights in mixed rem/personam.