Of Brutal Murder and Transcendental Sovereignty: The Meaning of Vested Private Rights
55 Pages Posted: 16 Jul 2016 Last revised: 6 Jan 2018
Date Written: July 15, 2016
The idea of vested private rights is divisive; it divides those who practice law from those who teach and think about law. On one side of the divide, practicing lawyers act as though (at least some) rights exist and exert binding obligation upon private persons and government officials. On the other side of the divide, scholars of law and jurisprudence have generally proceeded, since at least the rise of English positivism in the nineteenth century and the American legal realist movement in the early twentieth, as if the concept of vested right has little real meaning. This article attempts to explain the doctrine’s continued appeal and to discern some coherence in it while also accounting for the causes of skepticism.
After critical engagement with both English positivist and American legal realist scholarship, a agreement emerges about what the strongest—most central or focal—sense of vested private right is. By reference to this focal meaning one can distinguish weak senses and peripheral instances of vested private rights, which are not as conceptually interesting but are nevertheless significant for the practice of law, from strong senses and central instances, which are rare in practice but theoretically interesting and important. This framework preserves the valuable insights of theory and the valuable utility of vested rights in practice, while not claiming too much for either. This way of understanding the doctrine might also open new lines of inquiry about the senses in which different private rights are and are not rights, and the senses in which they are and are not vested.
Keywords: rights, private rights, vested rights, retrospective legislation, retroactive legislation, positivism, legal realism, perfectionism, jurisprudence
Suggested Citation: Suggested Citation