Law defines and shapes politics, economics, history and society in a number of ways. It can bind or detach people from one another, impose obligations or rewards, and determine how those obligations are to be enforced.
The law is a powerful tool for settling disputes and regulating behavior (Fitzgerald [Salmond] 1966; Raz 1994). Its primary purpose is to promote human well-being by enforcing rights, limiting government power, and punishing wrongdoers.
Many different theories of law have been developed, but all these theories share the insight that legal systems are committed to promoting or protecting individual liberties. These rights may be in personam or in rem, and they can encompass any of the basic categories of claims, privileges, powers, and immunities (Fitzgerald [Salmond] 1967: 233; Raz 1994: 256).
Rights in personam designate specific right-objects or persons. They are typically associated with the law of contracts, trusts, and parts of torts.
Historically, rights in rem were primarily concerned with ownership of property and possessions. But over time, this area of law has expanded to include other types of rights.
These types of rights can also encompass other kinds of property, such as the ability to control or direct someone else’s use of another person’s property. They can be distinguished from the rights that govern purely private transactions, such as real estate law.
This type of right is commonly referred to as “claim-rights” or “demand-rights.” The most prominent proponents of this theory are Joel Feinberg and Stephen Darwall, who emphasize the capacity or power of right-holders to claim their rights and demand their rights be upheld (Feinberg 1970; 1980: 130-158; 1992: 155; Darwall 2006; 2007: 60-65).
There are many reasons why a certain legal right might not have been granted. The most common reasons are:
First, there are those who argue that a legal right has not been clearly delineated or articulated. For example, a libel or slander claim that has not been substantiated is not a legal right because it does not clearly define or articulate the particular facts of the case.
Second, there are those who suggest that a legal right must be derived from some other right or set of rights. For example, the U.S. Supreme Court has held that a right to marry is an inherent part of the constitutionally protected liberty of the person (Obergefell v. Hodges, 576 U.S. 644 [2015]).
Third, there are those who argue that a certain legal right must be preemptory. For example, a legal right must be so compelling that it would override other reasons that pertain to whether or not to do something, such as the overall good or utility of the particular action in question.
Fourth, there are those who argue that a given legal right can be violated and still count as a reason for a lawful conclusion (Wellman 1995). For example, a criminal defendant may be subject to a sentence of imprisonment even if that prison term is not in accordance with his or her constitutional rights or moral interests.