Main source: Campbell, Kenneth, “Legal Rights”, The Stanford Encyclopedia of Philosophy (Spring 2011 Edition), Edward N. Zalta (ed.), URL = .
What Kinds of Entities Can be Legal Right-holders?
There has been much dispute amongst philosophers as what to kinds of entities can be right-holders. Corresponding pretty much to the general dispute about the very nature of rights, some have argued that any entity which would benefit from the performance by others of legal duties can be a right-holder; others that it has to be an entity which has interests; others that it has to be a entity capable of exercising some kind of control over the relevant legal machinery. And there are variants of all these positions.
There has to be a sense in which legal systems can confer rights on such entities as they please. This is because it has long been recognised that legal systems can regard as legal persons such entities as they please. In England, for example, ‘the Crown’ has, for centuries, been regarded as a legal entity, although what this means in terms of office-holders, far less the actual human beings who occupied those offices, has changed greatly over that time. Likewise, all modern societies recognise the legal existence as persons of companies or corporations and frequently of such entities as trade unions, government departments, universities, certain types of partnerships and clubs, etc.
One of the most contentious areas in recent years has been whether young children, the severely mentally ill, non-human animals, areas of endangered countryside, etc, can properly be regarded as being legal right-holders. Clearly anyone who has locus standi before a court must be a holder of some rights within the system. But it does not seem to follow automatically that an entity which does not, or which is physically or mentally incapable of bringing a legal action, is not thereby a right-holder. For it may be the intention of the system that the interests of that entity should be represented by another person. Given then, that all these entities may be protected by law, and that someone can bring some kind of legal action to ensure that those duties are enforced, when would we say that the entity itself is a right-holder and when not?
The answer will often turn upon whether one embraces an interest- or a choice-theory of rights. MacCormick (1976), for example, argued that any theory of rights which could not accommodate childrens’ rights must be deficient, and this was a reason, in his view, for adopting an interest theory. Wellman (1995), on the other hand, claims that to assert that very young children or the severely mentally ill can have legal rights is to distort the concept of a right, since they lack the relevant control of the legal machinery. Instead, he argues, the relevant rights should be seen as belonging only to those who can bring the relevant actions on their behalf. For example, in his view a very young child would not have a right not to be negligently injured by the conduct of another. Rather, it would be the case that the child’s parent had a right that their child not be negligently injured. One difficulty about this position appears to be that it does not easily square with the relevent remedial rights (e.g., to damages) that the law would recognise. In this example the law would clearly compensate the child’s loss in being injured, not the parent’s loss in their child being injured (though the latter might be a separate ground of action in some systems).
4. Exclusivity of Rights
The issue here is: whether there are any fundamental aspects of rights which are exclusive to, or at least more important in, legal systems, as opposed to morality.
Five particular sub-issues may be raised here.
4.1 Primary and Remedial Rights
Remedial rights are those which arise because of a breach of a primary one. Clearly they arise also outside the law, for example by the duty to apologise or make amends even if there is no legal obligation to do so. But legal remedial duties are generally more precise, and, just by the nature of law, institutionalised.
It is one of the main functions of legal systems to provide remedies for breach (or sometimes anticipated breach) of the primary rights which they confer. So if someone is injured by the negligence of another there will usually arise a remedial right to damages. If he is killed there may arise in members of his family an independent right to compensation, and so on. Other types of remedial right can include those for court orders requiring the party at fault to execute, or refrain from, some particular course of action, very often that which they had a duty to do, or to refrain from, under the primary right. Such rights are often very complex in the detail. For example the measure of damages may be different if the wrongful act is a tort/delict, as opposed to a breach of contract. Likewise, in many systems, some remedies must be granted as a matter of right whilst others are at the discretion of the court. By way of illustration of the remedies in the two British legal systems, reference may be made to Lawson (1980) and Walker (1974).
Usually remedial rights will themselves have further remedial rights attached, for example, to have the court impose a more coercive order, perhaps with the threat of a criminal or quasi-criminal sanction, or to have a person’s assets frozen or confiscated, in the event, for example, that someone has failed to pay damages previously awarded by the court. The details of these further remedial rights vary from system to system.
A related, more controversial, point is as to whether criminal, as opposed to civil, law confers any legal rights on the citizens protected by it. The orthodox view is that it does not, although there may well be a parallel civil right. Take the case of someone who is wrongfully assaulted. In most legal systems this will be both a crime and a tort/delict. The civil law clearly gives a remedial right, eg. to sue for damages. But since, in most jurisdictions, it is mainly (and sometimes exclusively) the state which decides whether to prosecute for the criminal aspect, the more usual view is that the citizen has no legal right corresponding to the criminal aspect.
The issue is often complicated, legally, by the absence of clear indication from the legislature as whether it intended, by a particular statute, to create only a crime or also to confer civil law rights on citizens. A further complication can be that criminal courts sometimes exercise a quasi-civil function (e.g., to make a restoration or compensation order after a conviction for theft), and vice versa (e.g., the power of a civil court to award punitive or exemplary damages).
This issue is different from that of whether criminal law can act to recognise and protect moral rights. It seems possible to suggest that it can, since moral rights can be protected not only by legal rights, but also by legal duties on others (without corresponding legal rights). For example, a legal system could create a criminal offence of harassment in order to protect a moral right to privacy, without thereby necessarily recognising a legal right to privacy, i.e., something which would act as a positive reason in favour of privacy in interpreting unclear rules, or in developing the law.
4.2 Conditional Rights
In the case of many legal rights a condition has to be satisfied for their possession or exercise. This, in itself, does not make legal rights different from many moral ones. Just as one has a legal right to damages for assault only if one has been assaulted, one has a moral one to an apology for being insulted only if one has been insulted. But legal rights can give rise to more complicated situations, which rarely arise in morality.
In the above examples we can say that the right-token, as opposed to the right-type, comes into existence only when the condition for its instantiation is triggered. But legal systems sometimes say that that the right-token exists before one of the conditions for the exercise of the right exists. Essentially, it is the difference between saying “if p, X has a right to A” and “X has a right, if p, to A.” In the latter case the implication is that the right-token exists now, not just that it will exist. Why should we say this? One proposed answer is that legal systems, unlike morality, have devised sets of rules for transmission of rights even before the triggering condition for the exercise of the right has arrived.
Suppose, for example, that X, under his will, left a sum of money to Y, on condition that Y had attained the age of 21. It may be that the correct way of understanding the provision, under the rules of the legal system, is that only if Y had attained 21 when X died does he have a right to the money. But it may be that the correct way of understanding it as saying that Y, even if he has not attained 21 when X dies, acquires a right to the money, but it is to be paid only when he is 21. One practical difference is that in the latter case the right can pass to Y’s successor in title if Y, having survived X, nevertheless dies before he is 21. In the latter case, lawyers describe the right as ‘vested.’ There can be many complex legal rules relating to this type of situation, and they vary greatly from jurisdiction to jurisdiction. Reference should be made to textbooks, primarily on testamentary succession, in the jurisdiction.
4.3 Property Rights
A further particular kind of legal rights, or group of rights, which has received an increasing amount of attention from theorists is that of property rights. Discussion of this belongs more properly to that of property itself – see the entry on property. Only some very brief points will be made here.
The first is as to whether property rights, and hence the concept of property, are essentially legal in their nature, or whether they are more general social phenomena which are simply recognised and protected by law in all modern societies. According to Bentham (1843) ” … there is no natural property … property is entirely the creature of the law.” Bentham’s argument is essentially that what we mean by property is security of expectation in being able to keep, sell, use, etc, objects, and only the law can guarantee such security.
On the other hand, it is certainly possible to talk coherently about property in a way that does not necessarily correspond to the legal position. A parent may for example say to a young child that a certain toy is theirs, though in law it is the parent’s. Likewise it may be plausible to claim that concepts of ownership and possession, though they may be less securely protected, can exist in societies which do not have anything that we normally recognise as a fully-fledged legal system. Some people will perhaps regard these kind of examples as indications that the concept of property is not essentially legal, whilst others may incline to the view that these are simply metaphorical extensions of a concept which is legal au fond.
Secondly, it should be noted that, in law, property rights can be of many different types. Although ownership is obviously one of the most important, another major class is that of possession, whether temporary or relatively permanent. For example, the right to use a car which one has hired for a week or to live in a certain house for the rest of one’s life. Yet other types, falling short of either ownership or possession, could be, for example, to walk across the local farmer’s field or have one’s next-door neighbour maintain his side of the joint garden wall.
The details of property rights vary from jurisdiction to jurisdiction perhaps more than those of almost any other types of right. Further, many jurisdictions have different rules relating to property rights in land (and its fixtures) as opposed to all other types of entity. For these details reference should be made to specialist books in the jursdiction.
Even when considering just ownership, there is debate amongst theorists as to how this should be analysed. Some see it as essentially a cluster of other property rights of particular content, such as those to possession, income, etc, whilst others see it as being basically a structural relation between rights, content being comparatively irrelevant. For example as being the person to whom possession or use, even though those may presently belong to others, would ultimately return if a certain series of contingent events were to occur.
For further discussion of property in a philosophical context see Honore (1960, 1961), Becker (1977), Waldron (1988), Munzer (1990), Campbell (1992), Harris (1996), Penner (1997). (Some of these are concerned more with the moral justification of ownership.)
4.4 Subjective Rights
The above account of rights has been written largely from the point of view of Anglo-American law and philosophy. It should, however, be mentioned that there is one aspect of legal rights which is to be found amongst the European Continental writers, but of which there is no trace in the Anglo-American tradition. That is the description of rights as being ‘subjective’ (droits subjectifs; subjektives Rechten).
In French and in German the same word (droit, Recht) serves as the noun which refers both to rules of law and the rights which are created by them, and therefore disambiguation is required.
In French law the distinction is drawn by distinguishing between le Droit objectif (the noun spelt with a capital according to some, but not all, writers) and les droits subjectifs. (For general discussion see, for example, Cornu 2000). However, French law seems at the same time to confine the term ‘droits subjectifs’ to a sub-class of legal rights, namely rights which are primarily those of private citizens, eg to make a will or contract. The term appears not to extend to such rights as those of a government agency owning property or a government minister making a legal order under delegated powers.
German law seems to draw a basically similar distinction between ‘das Recht’ and ‘subjektives Rechten’ (see, for example, Dietl 1983).
4.5 Means of Conferring Legal Rights
Many of the issues relating to this are not confined to rights, but are shared with duties and powers, so only a brief outline will be given.
In most modern legal systems certain fundamental rights are conferred by the constitution. This usually gives them a certain degree of priority over competing legal considerations, but this can vary from system to system. Sometimes constitutional rights will have an absolute priority over any other consideration not itself based on a constitutional right. Sometimes they will merely favour one legal outcome rather than another, without dictating it.
Constitutions will vary, too, as to whether certain rights are ‘entrenched’ or not. Entrenchment can be absolute, in which case the rights cannot be removed or altered by any constitutional means (as is the case with some of the ‘basic rights’ in the German Constitution), or it can be relative, requiring only a more onerous procedure than that for normal legislation (as with the Constitution of the USA.).
Constitutions will also vary on the extent to which human rights recognised under international law or treaty are recognised in national law. For example, in some countries in Europe, the European Convention on Human Rights, and decisions of the European Court of Human Rights thereon, are incorporated into national law and override any national law inconsistent with them. In others, such as the United Kingdom, the courts have, so far as possible, to interpret legislation to be consistent with the Convention, but have no power to strike it down if they find it to be clearly inconsistent.
Other rights can be conferred by normal legislation or by common law (ie. the tradition of judge-made law). One interesting point is that, arguably, many legal rights are conferred by no positive law, but arise simply from the absence of any law to the contrary. That is, it is probably a practical necessity that every legal system has an unwritten ‘closure rule’ to the effect that whatever is not prohibited is permitted. If some types of rights are essentially permissions, then many such rights arise in this way. In most legal systems my right to cross the street, for example, is of this nature. Probably no positive law will say that I can do so, and possibly no more general enacted right will imply it.
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