Law is an institution that involves a body of norms regulating social interactions, primarily with other members of the community. These norms are enacted, enforced, and amended by a controlling authority.
Traditionally, the legal system of each society was composed of an elaborate writ system and courts that functioned at the behest of a king or other ruling authority. A writ could be issued to an individual based on a particular form of complaint (e.g., trespass) and ordered the accused to appear in court or at an inferior level of court.
A writ might also be based on a broader legal principle such as a duty to do something, such as ensuring justice. This type of writ typically came into being during the age of feudalism, when land was held under a chain of tenants under a king or other ruler.
The king or other ruler, in turn, might hold a particular legal power over the people; such powers were called “legislative” and included the power to enact laws that govern conduct in the community. Some judicial bodies also had legislative powers, such as a judge or a prosecutor.
This division of norms is fundamental to law’s institutional nature, where it involves a complex and sometimes overlapping set of substantive and procedural norms. Those that are substantive are norms involving the content of what parties or entities can and must do in relation to others, such as claims, privileges, and powers.
Procedural norms, on the other hand, are those involving the process by which parties or entities engage with others’ norms. These can include rights to a hearing, trial by jury, notice of accusation, a reason for official decisions, finality, appeal, evidentiary rights, and many more.
These procedural norms can be divided into two main types: claim-rights, which control what right-holders may do or cannot do; and power-rights, which control what they can do or cannot do in the service of other norms. Claims are active and determine what right-holders may or must do (privilege-rights); power-rights are passive and determine what right-holders can or cannot do in the service of other norms (power-rights).
Interest Theorists believe that rights, in general, protect or further right-holders’ interests. They emphasize claim-rights more than power-rights, but they also believe that power-rights are necessary for the service of one’s interest.
According to these theories, rights are the foundations of the legal system’s commitment to treating the individual person as law’s primary unit of concern.
Some of the most prominent proponents of the interest theory are Bentham, Mill, Hart, Lyons, MacCormick, Raz, and Kramer.
The Interest Theory is a central element in a variety of legal systems committed to rights, including human rights law. This theory holds that rights largely serve or further the interests of the right-holders, but that other factors, such as societal and political values, must be considered in assessing whether or not a right is actually worth securing.
While rights are the foundations of the legal system’s policy commitment to treating the individual person as law’s principal unit of concern, they can be limited by conflicting values, such as protecting the rights of other people and the general welfare, or ensuring public order. These limitations are reflected in the Universal Declaration of Human Rights, which secures all persons with certain rights, but limits those rights given conflicting values.
