The Concept of Rights in the Federal Constitution


Law is a system of rules that governs the way people live, work, and engage in relationships with others. These rules are codified in written laws (laws), negotiated among groups of legislators, and enforced through court decisions. These rules, as well as their effects, shape politics, economics, history and society in numerous ways.

The concept of “right” is one of the most basic and pervasive building blocks of positive law. It encompasses a wide range of features and types of rights, but also has a particular set of salient and unique characteristics that make it a uniquely legal construct.

1. The Normative Content of Rights: Sections 4-7

A legal right typically involves a preemptory (Section 8) or conclusory (Section 7) legal norm that has the form and function of “right” in that it bestows a normative or moral position. For example, a person may have the right to life, liberty, and the pursuit of happiness. This is a preemptory right based on a general principle that everyone should have this or some similar type of normative position, such as that “every human being has the right to live in freedom and dignity.”

2. The Defeasible Quality of Rights: Sections 8-9

A legal rights’ defeasibility is a feature of how stringently it excludes conflicting reasons (Fitzgerald [Salmond] 1966: 233; Raz 1994: 256). While some legal rights are perfectly enforceable–such as a contract that is binding on a person or an immunitiy that protects a person from harm–others are not deemed perfect. This is due in part to their relatively narrow scope of conflicting reasons that trump or exclude them.

3. The Moral Justification of Rights: Sections 10-12

Another crucial characteristic of legal rights is their moral justification, that is, the grounds on which they are justified or legitimated. This is often a matter of legal normativity rather than validity, but it does not rule out the possibility of an otherwise legitimate or valid legal right being morally unjustified.

4. The Legitimateness of Rights: Sections 11-12

A rights’ legitimacy (validity) is a feature of how it relates to other legal norms and sources of law, such as courts or legislatures. For example, a right in the name of Joseph is legally justifiable because he is a person and has a valid right to his name.

5. The Normative Quality of Rights: Sections 13-14

A legal rights’ legitimacy is a feature of how it relates in law to other legal norms and sources of law, especially those that recognize or create legal rights (Fitzgerald [Salmond] 1962: 252-255; Wellman 1995: 24-29). For example, a right in the name and goodwill of a deceased person is legitimate because the deceased was a person who had a good name.

6. The Stringency of Rights: Sections 14-15

A legal right’s stringency is a feature of how it excludes conflicting reasons and ties those reasons to duties (Fitzgerald [Salmond] 1964: 236; MacCormick 1977: 189; Raz 1994: 258-269)). For example, a law that grants a person a right against the estate’s executor for a portion of the estate at its vesting is not an absolute right because the duty does not correlate with the right until it is vested.