Law is the body of norms and procedures that governs the interaction of people, organizations, and governments in a given society. Depending on the purposes of a legal system, it may serve to keep the peace, maintain the status quo, preserve individual rights, protect minorities against majorities, promote social justice, and provide for orderly social change.
A right is a type of normative claim or privilege that bestows some benefit on its holder in exchange for allowing a certain action, inaction, or decision to be done to them by others. Typical examples include rights to a hearing, trial by jury, confront witnesses, notice of accusation, receive reasons for official decisions, finality, appeal, evidentiary rights, and the like.
Typically, rights exhibit the Hohfeldian form of a claim-right or power entitlement (Raz 1995: 31-32). However, not all legal norms exhibiting this logically-independent structure of entitlement qualify as “rights” in the sense of being bestowed on their right-holders in return for doing something to them; for example, a Hohfeldian immunity from inheriting property on grounds of one’s gender hardly qualifies as a legal right; and, a claim-right to be persuaded to act as one’s own lawyer merely confers on the claimant the ability to take legal action to vindicate that legal action; see also MacCormick 1977: 193-194, 183-4).
It is therefore important to distinguish between substantive and procedural norms, and to recognize how some types of norms and their effects are more effectively controlled by a given system of laws and legal norms than others. This separation is fundamental, both as a foundation for understanding what types of legal systems are most conducive to protecting rights in the first place, and as a means to determining which kinds of rights should be prioritized over others when assessing how to shape a legal system accordingly.
According to the Will Theory, rights function as a way for right-holders to exercise, through a given system of laws and norms, a measure of normative control over themselves or others (Hart 1982: 183-4). The same idea underlies many other kinds of claims-rights and powers, such as rights to privacy, autonomy, and freedom of choice.
As such, the Will Theory has a lot in common with the Hohfeldian theory of privileges. It argues that a system of laws and norms committed to protecting rights should be oriented towards the ideal of treating the person as law’s primary unit of concern, rather than primarily treating people as objects of power or interest.
In this view, rights should be conceived not as ends in themselves, but as bastions of the right-holder’s interests, agency, dignity, autonomy, control, and liberty, even in the face of utilitarian ideals or, more generally, the common good; and that this can, on balance, be a good thing.
Nevertheless, skeptics of the idea that a legal system committed to rights should be oriented towards the common good will point out that this notion assumes that a person’s rights can and arguably often do derive from their own moral motivations; e.g., that a man who cares nothing for an ethical rule he is believed to believe and practice by his neighbors is a person who cares a good deal to avoid having to pay money or to avoid being in jail when he can. The argument is that, for this reason, a system of laws committed to rights should be rooted in and dedicated to liberal values; those aimed at securing the well-being of the individual (Finnis 2011: 2010-218).