A moral rights theory of private law.

Author:Gold, Andrew S.


Private law--the law of torts, contracts, and property--is at an interpretive impasse. The two leading conceptual theories of private law--corrective justice and civil recourse theories--both suffer from significant weaknesses. Given these concerns, private law may even seem incoherent. The problem is not insurmountable, however. This Article offers a new way to understand private law. I will argue that private law is best understood as a means for individuals to exercise their moral enforcement rights.

Moral enforcement rights exist when an individual may legitimately use coercion to force another individual to comply with his or her moral duties. Not all interpersonal relationships implicate moral enforcement rights. However, when moral enforcement rights do exist, the law typically provides a private right of action. Indeed, the private right of action fills an important need, given the backdrop of existing legal regulation. Individuals usually may not coerce a wrongdoer on their own, and thus require some other mechanism to do so. The private right of action can be seen as a substitute means of enforcement given that the state ordinarily prohibits self-help.

Recognizing this basis of private law allows us to explain a variety of private law remedies from compensatory damages to injunctive relief. It also accounts for the characteristic structure of the private right of action. In this way, a moral rights-based theory offers an important advance over leading corrective justice accounts. At the same time, a moral rights-based theory also provides an appealing basis for the private right of action. As a result, it avoids the normative doubts that often beset civil recourse theories.

Finally, this Article has important normative implications. A moral rights understanding helps us to assess whether private law should be reformed in those cases in which legal and moral practices overlap. In such cases, it is often thought that if legal principles diverge from moral principles, the legal principles should be changed. Interpreting the private right of action as a means to exercise moral enforcement rights suggests that core private law doctrines converge with conventional moral principles.

TABLE OF CONTENTS INTRODUCTION I. CORRECTIVE JUSTICE AND CIVIL RECOURSE A. Interpretive Methodology B. The Bilateralism Challenge C. Corrective Justice Theories D. Civil Recourse Theories E. Summary II. THE MORAL RIGHTS APPROACH EXPLAINED A. The Link Between Moral Rights and Private Enforcement 1. Moral Rights Defined 2. Moral Enforcement Rights as a Distinct Category 3. Moral Enforcement Rights and a Claimant's Standing B. Summary III. THE LINK BETWEEN PRIVATE ENFORCEMENT AND PRIVATE RIGHTS OF ACTION A. The Social Contract Metaphor and Private Law B. The Moral Rights Perspective on the Right to Redress C. Moral Enforcement Rights Versus Corrective Justice D. Moral Enforcement Rights Versus Civil Recourse E. Summary IV. NORMATIVE IMPLICATIONS FOR PRIVATE LAW A. The Accommodationist Critique of Contract Law B. The Import of Moral Enforcement Rights C. Summary CONCLUSION INTRODUCTION

Legal theorists are in a bind. One might expect that after years of debate the conceptual basis of private law would be settled. Yet private law--the law of torts, contracts, and property--has proven difficult to explain in conceptual terms. It is not that there are no theories available. Leading accounts ground private law in principles of corrective justice (1) or civil recourse. (2) Unfortunately each of the existing approaches has significant weaknesses. This Article offers a new theory, grounded in individuals' moral enforcement rights.

A corrective justice theory focuses on the judicial tendency to order remedies that make a plaintiff whole. The law, on this view, rectifies injuries caused by a legal wrong. (3) For corrective justice theorists, private law is thus explained in terms of a wrongdoer's duty to correct a wrong, or a wrongful loss. (4) In contrast, a civil recourse theory focuses on the structure of the private right of action. This theory argues that private law fields--most commonly, the law of torts--are best understood in terms of the plaintiffs right to redress if she was wronged by another. (5) Civil recourse theories explain the private right of action as a means for wronged parties to act against the person who wronged them. (6) This notion sounds in revenge, in holding someone accountable, or in "getting satisfaction."

Moral enforcement rights suggest a new way to see the private law structure. A moral enforcement right exists when an individual has the moral standing to coerce another individual in order to prevent or correct a wrong. (7) This idea has been recognized in moral philosophy, but its significance is underappreciated in legal theory. (8) We can better understand private law if we see it as a legal path for individuals to force compliance with their moral rights in cases in which such individuals have legitimate standing to use coercion. The claimant's act of enforcement is then the central feature of private law.

A hypothetical may help to illustrate. In a state of nature, assume that two individuals, A and B, reach an agreement. A agrees to give B a useful thing he possesses--let us say a table--in return for B working on A's behalf for several hours--let us say assistance in building a house. B proceeds to do this work according to the agreement's terms and then requests the table. A owes a duty, pursuant to the agreement, to give B the promised table. Suppose A refuses to hand it over. In such a case, A has a continuing responsibility to hand over the table. Moreover, B would be justified in taking the table from A, irrespective of A's continued refusal to provide B with the table.

In this prelegal state of affairs, the result of the agreement, assuming the table originally belongs to A, is that B has a primary moral right to the table, and A has a primary moral duty to provide the table to B. When A fails to provide the promised performance, B has a remedial moral right to the table--or if that is no longer an option, a right to the next best thing--and A has a remedial duty to provide the table--or the next best thing. Primary and remedial moral rights and duties are not the only normative concepts at issue in this fact pattern, however. There is also the question of suitable responses to a breach. It is here that a moral enforcement right comes into play. This is a distinct moral concept, and it provides a means to understand private law.

B's justifiable responses to A's failure to meet his remedial duties are implicated by these facts. Not all violations of moral rights correspond to justifiable coercion. In this case, however, B has a moral right to force a remedy. Under the facts of this hypothetical, it would be appropriate for B to simply take the table from A, presumably without violence, if A continues in his refusal to hand over the table. B might forgive A's failure, but, morally speaking, she would be within her rights to take the table. (9) A would also have a corresponding moral duty not to interfere with B's efforts to take the table from him, a reflection of his original moral duty to provide the table pursuant to the agreement. (10)

But what if we are no longer in a state of nature? Strictly speaking, private law enforces legal rights and legal duties, not moral rights and moral duties. As such, it is not immediately obvious how private law is implicated by the above series of moral rights, duties, and legitimate coercive remedies--the law refers to distinctly legal concepts. (11) The law's provisions need not correspond to the moral rights and duties that exist in a state of nature with respect to promises, agreements, and other interpersonal relationships.

Although it is true that moral rights and legal rights are distinct, we can understand them as normatively related. One way of interpreting private law is to see it as a substitute for a wronged party's right to rectify or prevent violations of her primary moral rights. (12) In a civil society, self-help is often prohibited. When moral rights would be legitimately enforceable by a wronged party in the absence of a civilized state, it is appropriate for the wronged party to have an alternative avenue for enforcing them. The legal rights and powers that constitute private law can thus be conceptually linked to individuals' underlying moral rights and duties.

Consider the case of a wrong that has already been committed. All else equal, the commission of a wrong means the wrongdoer is now morally required to do the next best thing to performing his or her primary obligation. (13) The wrongdoer might not do so. Corrective justice, in other words, might not be forthcoming. We can then see the private right of action as a substitute for obtaining justice by means of self-help. (14) When individuals are subject to the state's regulations and no longer permitted to bring about corrective justice on their own, their moral right to correct a wrong still remains. (15) The state accordingly takes on an obligation to provide an alternative legal means of enforcement in those cases in which self-help would otherwise be justified.

Notably, the aim of private law on this account is not to bring about corrective justice as such; rather, it is to enable private individuals to bring about corrective justice when they are entitled to do so. (16) The private right of action may be grounded in corrective justice in certain cases--the availability of suit often stems from the wronged party's right to bring about corrective justice through a state-provided means. That said, the key to understanding private law is to recognize that, even in these cases, the private right of action is a means of exercising moral enforcement rights.

At the same time, the private right of action is not about the wronged party's right to act against another...

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