Law is the system of rules and regulations that govern the conduct of people in a given society. In legal practice, this includes both private and public law. The term can also refer to the entire set of laws in a particular country or region, such as the United States’s.
The defining characteristics of “law” involve its enactment by a sovereign authority, its obligation of obedience by all subject to that authority, and its enforcement by the authority through penalties and sanctions (Raz 1970; MacCormick 1977). In addition to these, law implies the moral justification of the normative category of “right”.
A legal right is a normative category whose form (claims, privileges, powers, immunities) and function (to determine what parties may or cannot do) correspond to the “right” language of law (Lyons 1982; Sumner 1987). These are often called claim-rights, privilege-rights, power-rights, and immunity-rights, depending on whether they are active (Lyons 1970; Sumner 1987: 28-29) or passively enjoyed by right-holders (Waldron 1981; Kramer 1998; Enoch 2002).
It is important to distinguish between rights as a formalistic rhetoric and legal reasons for a particular determination. This distinction has implications for the nature of the moral justification of a legal right.
As a rule, justifications of legal rights must be grounded in some sort of underlying reason. The underlying reason might be either a legal norm grounding the right–or its antecedent–or it might be a broader normative context that provides a general justification for the right–or its preemptory grounding.
Some of the more prominent legal justifications include the existence of a positive duty to act in accordance with a law (e.g., a legal duty to prevent violence against the innocent), the existence of an exception (e.g., a legal exception to the rule that murder is against the law) or the existence of a special cause of action for violating a right (e.g., the infringement of a specific property right).
In addition to being justifications for positive law, these legal justifications are sometimes used as grounds for bringing about social change. For example, a social worker from a domestic violence team might use human rights arguments to get new accommodation for a family who were at risk of serious harm from a violent ex-partner.
There are other kinds of moral justifications for a legal right, such as a positive obligation to protect the life or health of a person. However, these are not always regarded as valid justifications of a legal right.
There is an extensive literature on the question of how and why we should justify legal rights, and what these normative categories ought to contain. It is a question that has attracted the attention of a diverse range of philosophers and jurists. The most influential are Joel Feinberg and Stephen Darwall, who are credited with introducing the idea of demand-rights into the literature on rights.