Abuse of Rights: The Continental Drug and the Common Law

Abstract

This Article deploys a comparative approach to question a widely shared understanding of the impact and significance of of rights. First, it challenges the idea that of rights is a peculiarly civilian invention, absent in the common law. Drawing on an influential strand of functionalist comparative law, the Article identifies the functional equivalents of the doctrine in the variety of malice rules and reasonableness tests deployed by American courts in the late-nineteenth and early-twentieth century in fields as diverse as water law, nuisance, tortious interference with contractual relations, and labor law. The Article investigates the reasons why in the United States, contrary to continental systems where rules limiting a malicious or unreasonable use of one's right coalesced into a unitary category of abuse of rights, these rules remained largely nonintegrated. Rationalization of these nonintegrated reasonableness tests and malice rules, I argue, was achieved by means of a novel, unitary style of reasoning, hardly fitting the traditional portrait of nineteenth-century Classical orthodoxy, rather than by means of conceptual integration. Further, the Article suggests that of rights' potential as a tool for social reform was consistently defused. In the United States, rarely and timidly did courts deploy malice rules to effect progressive distributive outcomes. And even when they did, they invariably resorted to the individualistic language of modern private law.