Where Do Your Legal Rights Really Come From?
A Broken Phone and a Hidden Question
You buy a phone. Two weeks later, the screen cracks for no reason. You head back to the store, and the clerk replaces it without a fuss. You didn’t even need to argue. But why did you have that right? You might say: because the law says so. That’s true — but it only pushes the question back. What makes a law, a law? Why do words written by politicians in a building far away give you the power to demand a new phone? And if the law said something unfair, would you still have a right?
These are not just questions for lawyers. They go to the heart of what legal rights and obligations are made of. Philosophers call this the search for the grounds of law — the ultimate reasons that make a legal right exist. When you ask “in virtue of what do I have this right?” you are asking about grounds. And for decades, the biggest fight in the philosophy of law has been about the answer.
On one side, legal positivism says that legal rights come entirely from social facts — the actions and words of institutions. If Parliament says consumers get a two-year warranty, then you get that right, full stop. On the other side, interpretivism says that’s not the whole story. It claims that moral principles — ideas about fairness, justice, and how government should treat people — play an essential role in making those rights real. This article will walk you through that contest, from the simple picture to the much deeper one.
The Simple Picture: Law Is Whatever Was Said
The clearest version of legal positivism was developed by the philosopher H.L.A. Hart (1907–1992) and sharpened further by Joseph Raz (1939–2022). Their view — often called the orthodox view — treats law as a system of communication. A legislature passes a statute; it issues a directive, something like “all sellers must repair or replace defective phones for two years.” In doing so, the institution conveys its intention to create a new standard. That standard is a legal norm, and from then on people have the corresponding rights and duties. The norm is valid just because the institution had the authority to create it and followed the rules for making law. Those rules, in turn, are traced back to an ultimate social practice — the rule of recognition — which officials accept as binding.
On this picture, finding out what your legal rights are is a matter of tracing institutional history. You look at what official bodies have said. No moral test is needed. A statute could be terrible, unjust, or cruel — but if it was enacted in the proper way, it is law. The question of whether citizens should obey it is a separate, moral question that comes later.
This approach feels clean and safe. It promises to separate law from morality so that we can describe the law clearly first, and then criticize it. But interpretivists think this breaks down exactly where it matters most. They ask: what about the Supreme Court case Riggs v. Palmer, where a man was set to inherit under his grandfather’s will even though he had murdered the grandfather? The court ruled that the murder could not inherit — because the law includes a deeper principle that no one should profit from their own wrongdoing. If law were only what institutions said, the written statute said otherwise. Yet the decision is widely seen as correct. For interpretivists, this shows that morality is baked into the very content of the law, not just into how we later judge it.
Adding Morality to the Mix: The Hybrid View
The thinker most associated with interpretivism is Ronald Dworkin (1931–2013). Dworkin argued that legal rights can never be explained by institutional facts alone; moral principles must be part of the fundamental explanation. But there are different ways to understand that idea. The first — called hybrid interpretivism — tries to blend the orthodox picture with a moral overlay.
Hybrid interpretivism starts with a baseline: the set of norms that institutions have conveyed. That’s your raw legal material. Then it brings in moral principles as a kind of filter or supplement. The principles adjust the raw set to make it more attractive — for example, striking out a rule that lets a murderer inherit, or filling a gap where the rules are silent. Law, on this hybrid account, is the output of that moral processing.
This view sounds promising, but it runs into sharp difficulties. The problem is that the interpreter now has two separate targets: consistency with the raw institutional norms, and moral merit — the independent appeal of the principles. What happens when the two clash? You might have a set of rules that mostly reflect fairness, but contain a few rotten clauses. The principles you find most morally attractive might require rejecting those clauses. But the more you reject, the less your interpretation fits the original practice. When must you compromise on merit just to stay faithful to what the lawmakers said? And who decides the trade-off?
Philosophers like Joseph Raz pointed out that there is no principled way to answer that. You’re left weighing apples (moral quality) against oranges (formal fit). That makes the hybrid view seem less like a clean theory of what the law is, and more like advice on how judges should patch up messy law in hard cases. Hybrid interpretivism might end up as a theory of adjudication, not a theory of the grounds of law.
Morality All the Way Down: Pure Interpretivism
A more radical version — pure, nonhybrid interpretivism — avoids the hybrid’s problems by refusing to grant that institutions create binding norms on their own. On this view, there is no pre-interpretive set of valid rules. Instead, the starting point is raw institutional practice: assemblies drafting and voting, judges writing opinions, officials issuing statements. These are actions and attitudes, not norms. The crucial question is: how does this raw practice determine legal rights and obligations? And the answer, for the pure interpretivist, is that moral principles assign that role.
Think of the law as a huge moral puzzle. We have the whole history of what government has done — every statute, every court decision, every settled practice. Moral principles tell us which aspects of that history are legally relevant, and how they matter. For instance, a principle about fair notice might make the plain text of a criminal statute central. A principle about democratic legitimacy might make certain legislative intentions more important. These moral facts explain why an institutional action has the legal impact it does.
This flips the orthodox picture on its head. Where positivism says institutional history determines rights, and morality is an afterthought, pure interpretivism says morality determines the mechanism itself by which history matters. Legal obligations are not constituted by the say-so of institutions; they are ordinary moral obligations that obtain because of the right kind of relation to institutional practice. There is no separate question of whether a legal obligation has moral force — it already is a moral obligation, one that is shaped by what government has done.
This also solves the puzzle of consistency and merit. The interpreter doesn’t weigh a pre-existing code against ideals. Instead, the principles pick out the morally relevant features of the practice, and determine the rights that flow from them. Some past actions will turn out to be mistakes — actions that cannot be justified under the best moral account of the whole practice. Those mistakes are set aside, not because we chose merit over fit, but because they lack genuine legal relevance.
Why the Grounds of Law Matter to You
You might never use the phrase “grounds of law,” but you already take sides in this debate. Imagine your school says “no phones in class,” but a teacher confiscates a phone even when a student is checking a medical alert. You might say: “That can’t be the real rule — it wasn’t meant for that situation.” Or you might say: “The rule is the rule; it doesn’t matter why they wrote it.” These reactions mirror the deepest division in legal theory.
Pure interpretivism helps explain why, when judges disagree about what a law means — as they did recently about whether the US Constitution protects an individual right to own a gun, or whether the government can require everyone to buy health insurance — they are not just fighting over dictionary definitions. They are fighting over the moral principles that give institutional history its authority. The interpretivist claims that such fundamental disagreements are possible because the grounds of law are a substantive moral question, not a purely factual one. We can share the concept “law” while honestly disagreeing about what makes something a legal right.
That’s a liberating idea. It means that serious legal argument is real moral argument. It also means that when you feel in your gut that some “law” is no law at all because it’s deeply unjust, you are not just being emotional — you might be doing philosophy, probing the very nature of what law must be.
Think about it
- Suppose a long-ago parliament passed a law that is now widely seen as cruel. Does that law give a judge today a genuine legal reason to enforce it? Why, or why not?
- If moral principles are part of what makes law law, who decides what those principles are? Can two reasonable judges reach different answers and both be “getting the law right”?
- Think of a school rule that you believe is unfair. How would your argument against it change if you thought of rules as purely what the school said, rather than as something that must be consistent with deeper values?
