Journal of Tort Law, 2011
30 Pages Posted: 2 Dec 2010
Date Written: December 1, 2010
This Essay studies the relationship between rights and remedies and celebrates the multiplicity of our private law rights in general, and of our property institutions more particularly.
Remedies obviously serve as instruments of rights enforcement, but they also participate in the constitution of the rights they help enforce. Although institutional reasons bring about certain gaps between the content of rights and the judicial response to their infringement, the constitutive role of remedies introduces significant subtlety into the domain of rights. Thus, the choice of different remedies, as well as the possibility of incorporating qualifications, limitations, and even obligations, allows private law to accommodate qualitative (and normatively attractive) distinctions between different types of rights.
This phenomenon of the multiplicity of rights manifests itself in property law as well. Property law is composed of a distinct, though not infinite, number of property institutions, each reflecting a particular balance of values that is attached to a specific category of social contexts and a specific category of resources.
This variety and the contingent facts on which it partly relies should not be embarrassing. Quite the contrary: a truly liberal law must resist uniformity and endorse multiplicity, which is both freedom-enhancing and individuality-enhancing. By appreciating private law’s multiplicity and understanding the normative value of the (at times contingent) choices on which it relies, as well as their potential critical bite, private law theory can provide a better understanding of the order embedded in this complex legal mosaic and, possibly, even fruitfully contribute to its improvement.
Suggested Citation: Suggested Citation
Dagan, Hanoch, Remedies, Rights, and Properties (December 1, 2010). Journal of Tort Law, 2011. Available at SSRN: https://ssrn.com/abstract=1718521