The possibility of private rights and duties.

AuthorMacleod, Adam J.
PositionFaulkner Law Symposium: From the Magna Carta to the March from Selma to Montgomery

Is it possible for us to know what we owe others, or do we need the state to tell us? To ask the question this way could be understood as a provocation. It might suggest that the possibility of private rights and duties--a possibility that common law takes for granted and which lawyers witness in their daily practice--threatens the foundations of the legal realist jurisprudential project and the liberal political project. But it is not my intention here to attack those projects. I simply want to consider the possibility that legal realism and liberalism might not be all there is to know about law.

Over the last century or so, much American legal scholarship has proceeded on the basis of O.W. Holmes' assertion that private legal obligations--rights, wrongs, and duties--are illusions. In his famous 1897 lecture, Holmes provocatively (and influentially) asserted,

The primary rights and duties with which jurisprudence busies itself again are nothing but prophecies. One of the many evil effects of the confusion between legal and moral ideas, about which I shall have something to say in a moment, is that theory is apt to get the cart before the horse, and to consider the right or the duty as something existing apart from and independent of the consequences of its breach, to which certain sanctions are added afterward. But, as I shall try to show, a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court; and so of a legal right. (1) More than a century later, the idea that private rights and duties might have some existence apart from posited law (broadly understood to include judge-made law), or the sanctions for violation of posited law, retains a whiff of superstition, or perhaps discredited dogma. Even among those lawyers who think that private rights and duties might exist, one finds very little agreement about what they could be. Hohfeld's scheme of jural relations enabled a scientific approach to rights and duties as facts. (2) But in the laboratories of the legal realists, that scientific approach was reductionist. If rights and duties are merely coincidental facts then all one might usefully say about them is that they have been posited. And who posits laws other than lawmakers? And who are the lawmakers other than the three branches of government?

This reductionism is problematic for at least two reasons. First, private law is made by private lawmakers, and private lawmakers do most of the work of deliberating about norms and ordering our communities. The vast majority of wrongs, liabilities, duties, powers, and other legal norms that govern our interactions with each other are settled and specified by authorities other than the state--authorities such as parents, schools and universities, professional associations, athletic clubs, even our own choices and actions. If we are to understand law--and particularly if we are to understand rights--we cannot simply overlook these sources of rights and duties.

Second, private ordering and private right-specification are not merely social facts; they are activities that provide value to our political communities. It is a good thing that private authorities share responsibility with the state to settle legal questions if it is the case that legal judgments should, on balance, be made by authorities who are closest to those whom the judgments will govern, and if it is the case that rules posited by the state must be clear and general in their application and therefore must foreclose many plural and incommensurable pursuits, and if it is the case that "power corrupts." In fact, there are many important jurisprudential and political implications of the centrality and prevalence of private rights and duties.

So, to overlook private law and its moral foundations is to overlook something pervasive and really important. Fortunately, lawyers cannot ignore private law entirely because the black-letter law contains at least one very important feature that points to the possibility of private law and private ordering. That feature is the vested private right, which is foundational to nearly every other area of law: from bailment, contract, tort, and restitution to constitutional and administrative law. (3) Alas, even here the realists have taken their toll. Courts and commentators have been confounded by the necessity of recognizing vested rights and the supposed impossibility of defining them. (4) Yet the existence of vested private rights points to the possibility of private law, which points to the possibility of private ordering. This possibility is worth exploring.

The existence of private rights raises two salient questions. First, what is a private right? What is its nature? What is its function? What does it do? How does it operate within practical and legal reasoning? Second, is a private right law, or is it something else? Many private rights are settled informally in ways that do not much resemble legislation or regulation--by custom or tacit agreement, to take two examples. These methods of establishing private rights do not result in texts that we can interpret, nor in official pronouncements of governmental authorities. Does that prevent them from being considered as laws?

To help focus consideration of these questions, I will approach private law mostly through property. Some of what follows applies with equal force within tort, trusts and estates, contract, and restitution. But property is, in a sense, foundational to the other areas of private law and, one might argue, to law generally. It is the area of law in which vested rights are recognized and established. So it is close to the source of private rights and duties.

WHAT IS A PRIVATE RIGHT?

One finds among contemporary scholars two prevailing schools of thought about the nature of private rights. Because these perspectives are so prevalent and well-known, they can be described briefly. One school says that private rights are settled and vested prior to the exercise of political power. This is usually done by individual initiative in conditions of equality and common access, which are sometimes given the name the "state of nature." The job of law is to secure individuals in the enjoyment of the rights that vest in them in this state of nature. Usually in this school of thought, law is not concerned with how rights are exercised. That is up to the individual right holder. If an individual has a right then the law must allow him to exercise it to pursue his own interests, as long as he does not cause harm to the rights of others.

In this account, the most basic private right is a property right. This is a two-term relation between an owner and a thing: A has a right to resource r. This really means that A has a liberty to do with r what A would like to do, secured by A's right to exclude others from r. Note that r need not necessarily be Blackacre; it could be one's labor, one's person, or one's chattel or real property. This basic property right is absolute. Other rights are derived from the liberty secured by the right to exclude, and the individual right-holder is the agent who settles those legal incidents. The state's job is simply to prevent violence and meddling against right holders by those who would interfere with r. The most famous version of this view is attributed to Locke, but the strongest versions of it are found in contested interpretations of Locke, especially the writings of Richard Epstein. (5) Jeremy Waldron has also stated a very strong version of this account. (6)

The other prevailing school says that private rights are not really rights; they are privileges or entitlements. One has a privilege if the state says one has it, or perhaps as long as the state refrains from saying one does not have it. So, private privileges, like Bentham's constitutional privileges, (7) are contingent upon the decisions of sovereign powers. And entitlements are creations of law posited by the state. It is incorrect to say that one has natural rights or purely private rights. Every privilege or entitlement is a matter of public concern, and therefore political powers cannot avoid settling the question of who enjoys which privileges and who should receive which entitlements.

Privileges and entitlements come in bundles. Political powers distribute the bundles to individuals. They might take privileges and entitlements out of some bundles and add those rights to other bundles in order to ensure that the distribution of privileges and entitlements is fair, or perhaps to ensure that the collective good is maximized. The bundle conception of rights was developed by legal realists in the early twentieth century as they built on the insights of Wesley Hohfeld. (8) But this conception's political implications are not necessarily entailed in Hohfeld's schema. (9) These implications were appended to Hohfeld's account of jural relations by realists such as Felix Cohen and worked out detail by the progressive scholar Frank Michelman. In an influential article Michelman insisted that it is "a mistake to see property... as something categorically apart from ... political action." (10) Today, the most sophisticated version of this account is found in the writings of progressive property scholars, especially Gregory Alexander, (11) Eduardo Penalver, (12) and Joseph William Singer. (13)

Obviously, these two schools are quite different in some ways, and they are generally viewed as being diametrically opposed to each other. The first school is called libertarian or classical liberal, and the second is called progressive or left liberal. These accounts have two features in common. First, both of these accounts assume that private rights must be settled and specified either by individual initiative or by state action. The Epstein account favors specification of rights by individuals. The progressive account...

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