ABSTRACT
However, that is not simply to draw a distinction between those claims which are recognised by
law and those which are not. There may be claims recognised by law whose provenance as ‘rights’
we may question.144 At one level it might be that the law’s willingness to enforce a particular claim
is problematic either because the detail of the law is unclear or because a rule is considered to be
anachronistic and unlikely to be enforced in future.145 At another level the objection might be
political. In relation to the allocation of claims to property in English law we might question the very
existence of rights in private property as opposed to more redistributive mechanism for recognising
There is then the problem of where these ‘rights’ are said to originate. In truth, legal rights are
claims which are recognised by the courts147 as being rights. The word ‘recognised’ in this context
is revealing. Some ancient theorists of the common law suggest that judges do not make law; rather
they are merely instruments for the recognition of laws which are in some way innate, whether
derived from God or some grundnorm of principle.148 In this sense ‘recognition’ is meant in the
sense of uncovering or re-discovering, not creating anew. Recognition is carried out by judges who
are themselves recognised as having the authority so to do because of the qualifications which they
have received. This ability which the legal system and its actors have to confer qualifications on
lawyers and judges, the legitimacy to pronounce judgment and to allocate rights, are all facets of
power in those particular social institutions.149 For many post-Marxist social commentators many of
the problems of the modern world are bound up with the reduced authority which these actors
are able to command.150 It is a question of legitimacy in the legal system to pronounce that
assertions have reached a level of recognition as entitlements.
