Rights Without Standing

Abstract

Abstract On some private law theories, the idea of standing acts as a filter for what counts as a private law right. This chapter argues that equitable rights present a challenge for private law theories organized around the concept of standing. While the concept of standing should continue to frame theoretical inquiry into the nature of ordinary private law rights and the role of judges as adjudicators, it argues that private law theory needs also to account equitable rights and the distinctive role of courts in respect of equitable rights. Taking account of equitable rights within a theory of private law has methodological advantages: it adjusts our theoretical frame and leads to more complete theories of private law that reveal the necessarily public elements of private law and a second role for courts: guardians of the legal order.