Of Rights Superstructural, Inchoate and Triangular: The Role of Rights in Blackstone’s Commentaries
RIGHTS AND PRIVATE LAW, pp. 183-219, eds., Donal Nolan & Andrew Robertson, Hart Publishing, 2011
38 Pages Posted: 12 Apr 2011 Last revised: 30 May 2012
Date Written: April 11, 2011
Peter Birks has famously described the way in which rights operate in Blackstone’s legal cosmos as “superstructural.” In order to fully understand what this assessment entails, we will have to take a closer look at how the elements of Blackstone’s conceptual mechanism – right/wrong, rights, wrongs, and remedies – interact and complement each other. This “juridical” analysis, however, will inevitably take us back to the more foundational aspects of Blackstone’s vision of private law. In a formalist jurisprudence, Ernest J. Weinrib has explained, conceptual constructions and philosophical foundations are closely and intrinsically linked in the sense that the former are the expression of the latter – an insight particularly helpful, I believe, in Blackstone’s case, where the explicit verbalization of philosophical underpinnings remains fragmentary and basic theoretical assumptions have to be gleaned from doctrinal construction and categorization. As we shall see, the rights-remedies division in Blackstone’s organizational scheme is the expression of a “dualist” conception of the rights-remedies relationship: Blackstone’s perception of private law is not a Weinribian vision of a coherent, transactional unit, defined by the correlativity of right and duty. The “rights” that come into existence when a “wrong” is committed are of such nature that they can only be perceived as a triangular relationship that necessarily involves plaintiff, defendant and the state.
Keywords: Rights, Remedies, Contract, Transfer Theory of Contracts, Torts, Property, Publicness of Private Law, Blackstone, Pufendorf, Locke
JEL Classification: K10, K11, K12, K13, K40
Suggested Citation: Suggested Citation