OF BRUTAL MURDER AND TRANSCENDENTAL SOVEREIGNTY: THE MEANING OF VESTED PRIVATE RIGHTS.

• Author: MacLeod, Adam J.

INTRODUCTION I. EVOLUTION OF THE BASIC CONSTITUTIONAL DOCTRINE A. A (Short) History of What It Is B. What It Is Not II. THEORETICAL CHALLENGES AND THEIR LIMITATIONS A. English Positivism B. A Limiting Case: Free English Soil C. Legal Realism D. Persistence of Vested Rights in American Law III. THE FOCAL MEANING OF VESTED PRIVATE RIGHT A. Discerning a Focal Meaning B. Central Instances of Personally Directive Rights C. Central Instances of Publicly Indefeasible Rights D. Penumbral and Peripheral Instances IV. CONCLUSION INTRODUCTION

The idea of vested private rights is divisive; it divides those who practice law from those who teach and think about law. On one side of the divide, practicing lawyers act as though (at least some) rights exist and exert binding obligations upon private persons and government officials, such that once vested the rights cannot be taken away or retrospectively altered. (1) Lawyers convey estates in property, negotiate contracts, and write and send demand letters on the supposition that they are specifying and vindicating rights, which are rights not as a result of a judgment by a court in a subsequent dispute but rather because they direct judicial deliberations and determine judgments. Lawyers also negotiate compensation from local governments for expropriations and regulatory takings, demand due process protections for their clients, apply to courts for injunctive relief, and seek enforcement of laws and judgments across state lines. They do this on the presumption that officials are obligated to act or refrain from acting in certain ways because of the existence of rights enjoyed by persons in their unofficial capacities.

On the other side of the divide, scholars of law and jurisprudence generally proceed as if the concepts of vested right and nonretrospectivity have little real meaning. (2) The English positivist and American legal realist movements are thought to have discredited the doctrine of vested private rights. On the currently prevailing account, lawyers who practice private law are generating expectations, which might or might not be realized depending upon how courts interpret or construct the law and whether the legislative sovereign acts to change the law.

The sustained skepticism of the concept of vested private rights in the theoretical inquiries of scholars, coupled with sustained interest in the reality of vested private rights in the practical deliberations of lawyers, has left the doctrine in a state of limbo--neither fully discredited nor fully coherent. Neil Duxbury, a noted theorist, has observed that the concept of vested rights "is not easily shaken off." (3) Yet Charles Siemon, an accomplished practitioner, has found it difficult to find order amidst the "confusion in the law." (4)

This Article attempts to explain the continuing appeal of the vested private rights doctrine and to discern some coherence in it while also accounting for the causes of skepticism. The Article proceeds by way of comparing theoretical accounts of the doctrine in English positivist and American legal realist scholarship with instances of the doctrine in legal practice. Disagreement between theory and practice can be narrowed by critical engagement with both. In fact, a surprising area of agreement emerges when one distinguishes what the positivist and realist theorists claimed and did not claim, and what the doctrine does and does not (always) do. English positivists did not argue that vested rights doctrine is impossible or unlawful in principle, only that it is inconsistent with the legal systems they described, in which legislative sovereignty is a foundational constitutional commitment. And realists did not claim that law-abiding citizens, legislators, executive officials, and judges cannot or do not understand themselves to be bound to respect vested private rights, only that many citizens, officials, and judges are motivated by other concerns.

On the practice side, the doctrine of vested rights does not necessarily entail judicial review or judicial supremacy. It does not always prohibit legislators from changing laws retroactively or retrospectively. And vested rights do not always impose an absolute duty upon duty-bearers. Vested private rights often perform less ambitious tasks.

The theorists and practitioners disagree about the existence or efficacy of vested rights in the strongest possible sense, as rights that bind persons conclusively and that cannot be altered by subsequent legislation. Yet even this disagreement reveals an implicit agreement about what the strongest--most central or focal--sense of vested private right is. Theorists and practitioners seem to agree that any vested private right worthy of the name must possess two essential characteristics. For reasons explained below, I call these essential features "personal directiveness" and "public indefeasibility." A legal right that possesses both of these features in the fullest measure is a vested private right in the most complete or meaningful sense. Following jurisprudential thinkers from Aristotle to H.L.A. Hart to John Finnis, I call these rights central instances of the reality of vested private rights, and I call the concept that corresponds to a central instance the focal meaning of the idea of vested private rights. (5) A central instance of a vested private right found in legal practice most closely resembles the focal meaning of the concept of vested private right; the focal meaning of vested private right is the form or ideal type of the strongest and most effective vested private rights that are found in practice. (6)

Just as there are central instances, there are penumbral (not in the center but close to it), peripheral (more distant from the center, at the edge of the penumbra), and even defective (outside the penumbra) instances. And just as there is a focal meaning, there are less-focal, muddled, and even mistaken or wrong meanings. Between the center and the periphery lie various radiating spectra. Thus, if one has an adequate focal meaning of vested private right then one need not think of the existence of vested private rights in a binary, either-or fashion. Some rights might be more or less personally directive, and thus more or less like private rights. Others might be less or more defeasible, and thus more or less vested.

This study reveals coherence in the idea of the vested private right as a norm that imposes a conclusive duty upon a duty-bearer or class of duty-bearers (7) and which constrains powers to recognize, change, or adjudicate private rights and duties. (8) Central instances of this norm are rare. This accounts for theoretical skepticism of the concept. Yet less-central instances of vested rights are rather common. This accounts for the practical appeal of the doctrine itself. One can thus distinguish weak senses and peripheral instances of vested private rights, which are not as conceptually interesting but are nevertheless significant for the practice of law, from strong senses and central instances, which are rare in practice but theoretically interesting and important. This framework preserves the valuable insights of theory and the valuable utility of vested rights in practice, while not claiming too much for either. This way of understanding the doctrine might also open new lines of inquiry about the senses in which different private rights are and are not rights, and the senses in which they are and are not vested.

After this Introduction, this article proceeds in three additional parts. Part II briefly traces the history and development of the doctrine of vested private rights for the purpose of clarifying its contours. Part III examines and critiques theoretical challenges to the doctrine with particular emphasis on the early English positivism of Jeremy Bentham and John Austin and the American legal realist movement. Part IV draws lessons from Parts II and III to propose a focal meaning of the concept of vested private rights and illustrates each of its two essential features.

A note about terminology: I follow here what has become conventional terminology in jurisprudence scholarship, (9) but not uniformly in law or legal scholarship, (10) terming as "retrospective" those laws which alter a right or duty after it is settled and specified, and as "retroactive" those laws that impose or increase criminal sanction for an action after the action has been committed. This Article concerns retrospective laws, though derivatively, insofar as the maxim opposing retrospectivity rests upon, and applies only to, private rights that are vested.

1. EVOLUTION OF THE BASIC CONSTITUTIONAL DOCTRINE

   1. A (Short) History of What It Is

      The doctrine of vested private rights is generally viewed as an American phenomenon of largely historical interest. The concept of vested private rights as a check on legislative sovereignty came into full flower on American soil at the time of the Revolution. (11) It is difficult to understand the complaints against Parliament enumerated in the Declaration of Independence unless one conceives of constitutional limitations on Parliamentary supremacy. And the notion of limits on legislative power extended to the framing of American constitutions, including, according to some, the United States Constitution of 1787-89. (12) For example, James Madison characterized the Ex Post Facto Clauses of Article I as constitutional bulwarks against encroachment upon both personal security and "private rights." (13)

      For a century after the Founding, American scholars and jurists identified vested rights doctrine as basal to American law and made categorical statements about the limits that it placed upon legislative power to enact retrospective statutes. (14) Joseph Story stated the view, "Retrospective laws are, indeed, generally unjust; and, as has been forcibly said, neither accord with sound legislation nor with the fundamental principles of the...