What Is Law?

What Is Law?


Law is a linguistic, normative, and cultural construct that defines how people behave.

Generally, the word “law” refers to the imposition or obligation of obedience by a sovereign authority on the subjects of that authority and on others who are subject to the authority’s jurisdiction (Holmes 1919: 50-57). Other commonly used terms are rule, regulation, precept, statute, ordinance, canon, or law-making body, all of which have been defined in different ways throughout history.

In some cultures, such as aboriginal governance systems, law has not been conceived as a statutory, judicial, or scientific concept.

However, in many Western cultures, such as those of the United States and Canada, law has been constructed to define what it means to be a good citizen and how society operates.

Legal rights are one of the most basic building blocks of law, and they provide a foundation for much of the jurisprudence that shapes our legal system.

A legal right is a set of normative demands, expressing a specific or broad aim and specifying the conditions that should be met in order to attain that aim (MacCormick 1977: 191-92).

These demands are called “rights” because they are typically framed in terms of individual’s rights.

Moreover, rights often express the right-holder’s interests, agency, dignity, autonomy, and control over their own affairs.

They can also express an individual’s “freedom” from interference by others.

Some rights are also conceived as bastions of the right-holder’s self-interests or autonomy in the face of utilitarian ideals and the common good (Lyons 1982; 1994: 147-176).

Another important feature of legal rights is their “preemptory quality”. That is, they exclude or trump other conflicting reasons before they can be considered.

The stringency of a legal right’s preemptory power is an important determinant of its defeasibility and its applicability to particular cases in the legal system.

For example, rights establishing freedom of speech are more stringent than those stating free exercise of religion; and rights establishing the right to privacy are more stringent than those limiting the ability of private individuals to engage in sexual activity.

Other forms of rights are conceived as regulating or protecting the exercise of certain powers and privileges by right-holders, such as the power to collect debts, to punish crimes, and to waive immunity from certain parties.

In addition, there are certain types of rights that are particularly salient and distinctive to the law.

Some of these rights are the product of a Hohfeldian analysis of law and its normative functions, including claim-rights without privileges, the power to do wrong, and the right to retaliate against others who infringe on the rights of the right-holder or of others.

Other rights may be the result of an observer-centric jurisprudential definition of law, providing a normatively coherent basis for a variety of observations made by individuals or communities. Such a view is referred to as the “will theory” of law, and it fits well with the Hohfeldian power to annul or transfer duties.