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Understanding the Function of Law


Law is the set of legal norms that governs human conduct. It is a legal system whose purpose is to protect individuals from the violence, threats, and coercion they face in their daily lives.

Rights are normative categories containing a primary right (an entitlement to some thing) and a secondary right or remedial right to remedy the harm caused by violation of the primary right. Remedies can range from self-help, policing, or court order to compensation for damages and deprivations.

There are many kinds of rights, and they differ in form, function, and moral justification. Some of them are group rights, aiming to further the interests of members of a group as members of that group (Raz 1986: 207-209); others are private or individual rights that align with a specific person’s or entity’s cherished ideals, such as cultural and language rights and people’s rights to self-determination (e.g., Margalit & Raz 1990; Darwall 2012: 306-307); and still others are general, constitutional, or “fundamental” rights that limit the power of governments over individuals or entities in society (Lyons 1982; 1994: 147-176).

A number of theories of the function of rights attempt to explain how these categories fit together. Two prominent theories are the Will Theory of Rights (MacCormick 1977; Hart 1982) and the Demand Theory of Rights (Feinberg 1970; 1980; 1992; Darwall 2006: 18-19; 2007: 60-65; 2010; 2011; Skorupski 2010: 310-311; Gilbert 2018).

According to the Will (or Choice) Theory, rights provide a measure of normative control over Hohfeldian positions that right-holders stand in in relation to others. This power allows right-holders to choose among a variety of choices (MacCormick 1977: 193-194), including deciding whether and when they are obliged to fulfill duties owed to them by others, as well as whether and when to exercise their rights.

The Demand Theory of Rights stresses the capacity or power of right-holders to claim and demand a legal result from other parties. This demand-right theory is favored by some legal scholars, particularly Joel Feinberg and Stephen Darwall.

However, this theory has its critics. For example, while the demand-right theory fits with some forms of private law (MacCormick 1977: 193-194) and Hohfeldian privileges, it does not fit with other forms of civil law (Feinberg 1970: 130-158; Raz 1994: 256).

In contrast to the Will Theory of Rights, this theory does not fit with most civil rights, because most civil laws are designed to serve the public interest rather than to further a particular person’s or entity’s cherished desires and ideals. For example, many civil laws are enacted to punish criminals and to protect the public from terrorism.

Some legal scholars are committed to utilitarian goals or the common good, such as Joel Feinberg and Stephen Darwall. For example, they argue that rights should be oriented towards the efficient allocation of resources or the pursuit of moral justice in the public interest. This may be a compelling argument for certain rights, such as those in criminal and tort law.