Law is a set of normative rules that regulate how people can conduct themselves. These rules are often set out in a statute, a code, or in a paragraph in a legal document. Some examples include how to behave in a courtroom, what witnesses are required to testify about, the way courts make decisions, how to appeal decisions, and how much money someone can be awarded in case of a lawsuit.
Some laws are made by the state legislature and others are made by the federal government. The Constitution of the United States lays out individual “rights” that can be upheld by federal courts when a law violates those rights.
One of the ways that the Supreme Court decides whether a law is valid is by using due process, a standard of judicial review. This means that the law must promote a legitimate public interest and be applied fairly.
This standard of judicial review has evolved over time, with many Supreme Court cases now applying the so-called “compelling interest” test. This test asks whether the law is likely to promote a compelling public good, and that the law’s means are reasonable in relation to that public good.
Another criterion of a law’s validity is its balancing of rights. A law can be invalidated if it violates a person’s legal right to be free from infringing actions or if it conflicts with other reasons that are also regarded as valid (e.g., Nozick 1974: 171-173).
The existence of rights, claims, privileges, powers, and immunities is a central feature of law. Unlike rights in other normative systems, such as social clubs, trade unions, and universities, legal rights exhibit characteristics that are more distinctive of their own. These features arise from legal rights’ relative importance; their claim to supremacy over other normative systems under law’s jurisdiction; and their more expansive scope and compulsoriness (Raz 1979: 115-121; Sumner 1987: 70-79).
A right, in general, can be active or passive.
Hohfeld’s concept of a right is that it is “a normative position” that determines what a party may do or cannot do, thereby making it an “insolation against interference” with that activity (Raz 1909: 272). A right can be either active or passive.
There are two major forms of legal rights: those in personam and those in rem. The former are “rights” in a person or entity that designate the specific and definite right-object, such as a promisor or a trustee; the latter are “rights” in rem, such as a decedent’s estate right against an executor who is trying to sell her property (MacCormick 1982: 163; Raz 1970: 226).
In general, legal rights are a privileged way to express and rehearse what is important and desirable for the individual in a given situation. Moreover, they are often a privileged way to provide an overarching moral context for an action or a situation.
The right-holder can then choose to rehearse or otherwise express this favored way of living in her actions, speech, and other activities.