A Moral Rights Theory of Private Law

ABSTRACT Private law--the law of torts, contracts, and property--is at an interpretive impasse. The two leading conceptual theories of private law--corrective justice and civil recourse theories--both suffer from significant weaknesses. Given these concerns, private law may even seem incoherent. The problem is not insurmountable, however. This Article offers a new way to understand private law. I will argue that 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, when 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 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 often beset civil recourse theories. Finally, this Article has important normative implications. A moral rights understanding helps us to assess whether private law should be reformed in those cases in which 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. TABLE OF CONTENTS INTRODUCTION I. CORRECTIVE JUSTICE AND CIVIL RECOURSE A. Interpretive Methodology B. The Bilateralism Challenge C. Corrective Justice Theories D. Civil Recourse Theories E. Summary II. THE MORAL RIGHTS APPROACH EXPLAINED A. The Link Between Moral Rights and Private Enforcement 1. Moral Rights Defined 2. Moral Enforcement Rights as a Distinct Category 3. Moral Enforcement Rights and a Claimant's Standing B. Summary III. THE LINK BETWEEN PRIVATE ENFORCEMENT AND PRIVATE RIGHTS OF ACTION A. The Social Contract Metaphor and Private Law B. The Moral Rights Perspective on the Right to Redress C. Moral Enforcement Rights Versus Corrective Justice D. Moral Enforcement Rights Versus Civil Recourse E. Summary IV. NORMATIVE IMPLICATIONS FOR PRIVATE LAW A. The Accommodationist Critique of Contract Law B. The Import of Moral Enforcement Rights C. Summary CONCLUSION INTRODUCTION Legal theorists are in a bind. One might expect that after years of debate the conceptual basis of private law would be settled. Yet private law--the law of torts, contracts, and property--has proven difficult to explain in conceptual terms. It is not that there are no theories available. Leading accounts ground private law in principles of corrective justice (1) or civil recourse. (2) Unfortunately each of the existing approaches has significant weaknesses. This Article offers a new theory, grounded in individuals' moral enforcement rights. A corrective justice theory focuses on the judicial tendency to order remedies that make a plaintiff whole. …