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Gold on Moral Rights & Private Law

By Lawrence Solum

Andrew S. Gold (DePaul University - College of Law) has posted A Moral Rights Theory of the Private Law on SSRN. Here is the abstract:

The private law (i.e., the law of torts, contracts, and property) is at an interpretive impasse. The two leading conceptual theories of the private law ? corrective justice and civil recourse theories ? both suffer from significant weaknesses. Given these concerns, the private law may even seem incoherent. The problem is not insurmountable, however. This Article offers a new way to understand the private law. I will argue that the 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, where 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 the 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 beset civil recourse theories.

Finally, this Article has important normative implications. A moral rights understanding helps us to assess whether the private law should be reformed, in those cases where 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.

And from the paper:

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 where self-help would otherwise be justified.

Notably, the aim of the 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, where 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 the 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. Bringing suit may, for some, be a way of seeking recourse, but the law is not concerned with recourse as such.17 Moral enforcement implicates a distinct value from getting satisfaction. The private right of action instead involves a legal power (to use the courts as a source of remedies), based on a moral enforcement right (the moral right to bring about corrective or preventive justice), which is in turn based on a primary moral right (for example, the right to contractual performance).18 So construed, the private right of action is an avenue of enforcement, provided to those individuals who may legitimately use coercion to accomplish this end.

Very interesting paper. Recommended.

Full post as published by Legal Theory Blog on August 24, 2010 (boomark / email).