'Rights' of Action in Public and Private Law: The Analytics of Enforcement

Abstract

This chapter is part of a larger book project on legal enforcement. In it, I examine the meaning and importance of rights of action in both private and public law. Rights of action are, I suggest, one kind of legal ‘enforcement’ right, which enable either private or public enforcers to initiate legal proceedings before courts of law in response to the violation of both private and public rights. Much has been made of the importance of rights of action in the private law context by civil recourse theorists in the United States. Here I seek to broaden our understanding of such rights by incorporating reference to their existence and particular configuration in public as well as private law. This broader focus leads me to a slightly different (and ironically slightly more limited) understanding of rights of action that which is posited by civil recourse theorists. The most important point made in the chapter is that rights of action in modern public and private law are not one, single right, but clusters of Hohfeldian liberties and powers that are also accompanied by a variable group of legal claim rights serving to reinforce them. They constitute important liberties and powers to require another publicly to answer a claim before a court of law; and to enliven the public powers and duties of courts to see that justice (either public or private) is done. They are in this respect a source of autonomy for the persons exercising them and an essential feature of the efficacy and legitimacy of any system of law. At the same time, however, their powerful effects upon the interests of others, both private and public, means that their exercise is regularly set about with precautionary devices in the form of preconditions, duties and liabilities, which distribute power in respect of their use in different ways as between public and private law and public and private agents. This creates a jural network of cross-checks and balances upon their abuse or neglect in both public and private law. This system of cross-checks is essential, I suggest, to the normative acceptability of enforcement systems in both legal domains. Finally, I suggest that whilst rights of action are clearly of great normative importance in making the possession of primary legal rights meaningful and in enabling rights-holders to enforce those rights, there is no necessary analytical reason why the holder of a primary right should always hold the power to enforce it, or why the holder of that right should be the only one to be accorded that power. This means that in both public and private law, it cannot be taken for granted that only those holding the primary claim right should be granted rights of action when it is violated; nor indeed that they should universally be granted that right. As it happens, this turns out to be substantiated by a wide range of examples in our modern law, where private enforcers get to enforce public rights and (less often, but sometimes) public enforcers are empowered to play a role in the enforcement of private ones.