60 Pages Posted: 23 Aug 2010 Last revised: 7 May 2011
Date Written: May 2011
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.
Keywords: private law theory, tort theory, contract theory, corrective justice, civil recourse, moral rights
Suggested Citation: Suggested Citation
Gold, Andrew S., A Moral Rights Theory of Private Law (May 2011). William & Mary Law Review, Vol. 52, p. 1873, 2011. Available at SSRN: https://ssrn.com/abstract=1662647