Abstract
There is a long-standing, commonly held belief that legal rights are invariably enforceable. It shall be styled as the ‘Control View’. The view is that: (i) a given legal right may have more or fewer enforcement mechanisms affixed to, or associated with, it; (ii) its particular means of enforcement can alter over time; and (iii) every legal right has at least one such mechanism available to it at any given time. (These enforcement mechanisms are sometimes called the ‘elements of control’ and are almost always identified with legal powers.) While several scholars have tried to show that legal rights are not necessarily enforceable, all efforts to date have been inadequate. This chapter nonetheless offers a way to falsify the Control View: by presenting an exhaustive set of cases of legal rights that lack one or more of each kind of element of control and then adducing the possibility of a legal right that lacks any such associated element.
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Notes
- 1.
Interest theorists agree. They just believe that not all rights need be so, and that enforceability is not a necessary feature of A RIGHT. E.g., Raz (1996: 256–8).
- 2.
Scholars should find this label congenial, especially as the various enforcement mechanisms are often discussed in the literature in terms of measures of control. (It is, however, under-inclusive: for there are more ways to control rights than just by enforcing or waiving them). Markus Stepanians, however, uses ‘Control View’ to simply re-label the Will theory of rights. Stepanians (2005: 8). There is merit in this, especially as most contemporary Will theorists no longer hold robust metaphysical views about ‘the will’. Again, the most famous twentieth century Will theorist, HLA Hart, was keen to use the word ‘control’ to explain his view. Indeed, the idea of enforcement powers being ‘elements of control’ is adopted here from him. Hart (1982: 183–4). Even so, there is greater value in using the label for this rational reconstruction, which covers a wider group of scholars and ordinary persons than the Will theory does, and which avoids certain ‘theoretical’ difficulties in ways that shall be discussed below.
- 3.
E.g., Tierney (1997: 117–8, 189).
- 4.
See infra § III ‘Argument 1’ and Appendix 3.
- 5.
Cf. Simmonds (1998: 229–30).
- 6.
This chapter is unconcerned with the relative strength or weakness of any given element of control, or combinations thereof. In advancing his WT (which includes a rights model that constitutes an instance of CV), Nigel Simmonds argues that the quantum of control over a right is not strictly determinable by the number of (constitutive) elements alone. Simmonds (1998: 229–30), quoted in Chapter 5 note 82 and the accompanying text.
- 7.
There are several modes of secondary rights enforcement (e.g., self-help efforts, commencing litigation, arbitration, or mediation), but perhaps an indefinite number of quaternary rights enforcement techniques (e.g., ways to enforce a court order).
- 8.
On the functional/modal distinction, see Chapter 1 note 28 and the accompanying text.
- 9.
For examples of minimalist accounts, see, e.g., Simmonds (1998: 115): ‘[t]he modest version of the Will Theory treats rights as powers of waiver or enforcement over legal duties’ (emphasis added); Sumner (1987: 43): the ‘one indispensable measure of control’ is a primary power to self-extinguish both the right and correlative duty, which ‘requires no institutional mechanism’.
- 10.
As mentioned above, versions of CV can posit that the number of elements of control in any given right can vary. Further, the CV list of elements presented here is not necessarily exhaustive. For example, one might believe that there must be immunities protecting the liberties that are required to exercise the powers. Yet those liberties and immunities do not seem to be invariably available legal positions—even on a CV account. For example, what if someone contracts with the right-holder so that the latter cannot use such powers? (On the other hand, right-holders may still use those powers with effect, e.g., if the other parties do not raise the matter in court). See Appendix 3 for a more comprehensive list of elements of control.
- 11.
See, e.g., Chapter 6 note 14 on Jhering’s conception.
- 12.
See Chapter 6 § II.1.
- 13.
It might here be said that A can wield B’s right, rather than possess it.
- 14.
E.g., Simmonds (1998: 223).
- 15.
- 16.
- 17.
- 18.
Even Dworkin’s idea of constitutional rights as trumps need not be construed as going so far as to entail that rights are invariably remedy-securing. Perhaps only certain American Legal Realists, who believe rights to be determinable only after a judge or other legal official has levied a legal decision, might take such an extreme stance. See Frydrych (2018a: 315–22).
- 19.
Hart (1982).
- 20.
- 21.
- 22.
MacCormick (1977: 196–8). He also discusses an immunity from being enslaved.
- 23.
Hart (1982: 183 n.85). Another problem with some of MacCormick’s counterexamples, at least insofar as they concern Hart, rather than CV or WT, is that they ignore Hart’s stipulated domain limitations. Hart admits that legal immunity-rights, such as one against being enslaved, fall outside of the scope of his private law rights theory. Ibid 189–92. The question then becomes one about the scope of Hart’s CV commitments. Particularly, whether, on his view, statutory rights admit of the same fuller or lesser measures of control.
- 24.
Steiner (1998: 240). Steiner rightly adds a ‘sixth’ enforcement power to Hart’s list ‘for the sake of logical completeness’ (ibid 240 n.14), though there is in fact more than power at play here.
- 25.
Kramer (2013: 256).
- 26.
- 27.
Hart (1982: 185).
- 28.
Ibid 183–4. Again, see Chapter 5 note 16 and the accompanying text.
- 29.
Feinberg (1980: 150).
- 30.
Ibid.
- 31.
- 32.
On praejudicia, see, e.g., Lee (1946: 363, 423).
- 33.
A praejudicium may concern just getting a duty-bearer to declare his or her status as such. For example, if a creditor lends money to a debtor, but the former has in turn received funds from a third-party suretor, the suretor can get the creditor to make a public declaration of his or her own liability and number of sureties. Lee (1946: 363).
- 34.
It is sometimes discussed in the theories of rights literature because of Hart’s remarks about ‘extinguishing’ a private law right and MacCormick’s ‘inalienability’ argument against Hart’s theory. On Hart, see Chapter 5 note 16 and the accompanying text; on MacCormick’s argument, see Chapter 5 note 81 and the accompanying text. CV is less vulnerable to MacCormick’s argument than is WT. For it is open to most proponents to not only suggest that inalienable rights may nonetheless be enforceable or waivable, but also that CV is uncommitted to the idea that the more modes of control there are, the more of a right something is.
- 35.
Gardner (2014: 339–40).
- 36.
Ibid 340–1. By ‘secondary’, though, Gardner is sometimes referring to what (the literature often calls) tertiary positions. For example, compare ibid 338–9 with ibid 344–5. Gardner’s stance can furthermore be contrasted with that of Henry Terry. Terry considers rights of action as correlating with legal officials’ (e.g., clerks of court) duties to perform their tasks when required, and which, he submits, exist irrespective of whether the right-holders have valid, sustainable causes of action. Terry (1884: 120). (It is for this reason that Terry actually classifies rights of actions as primary rights.) Regardless, this is not what CV means by controllability; it is not about being able to initiate groundless legal processes with no chance of surviving a motion to dismiss, let alone of securing victory. CV instead concerns, amongst other things, the capacity to initiate proceedings wherein the right-holder has a real shot at vindication.
- 37.
Ibid 345.
- 38.
Calabresi and Melamed’s view can in turn be traced back to nineteenth century German jurisprudence.
- 39.
Calabresi and Melamed (1972: 1090–2, 1105–15). Protection and enforcement need not always require state force. Ibid 1090 n.4.
- 40.
Ibid 1092.
- 41.
Cf. John Finnis on the specification of rights. ‘Employing a useful contemporary jargon, we can say that people (or legal systems) who share substantially the same concept (e.g. of the human right to life, or to a fair trial) may none the less have different conceptions of that right, in that their specifications [the features and contents of specific legal positions] differ, partly because the circumstances they have in mind differ and partly because specification normally involves choices, by some authoritative process, from among alternatives that are more or less equally reasonable’. Finnis (2011: 219, emphasis added). See also Raz (1996: 266–7) on secondary rights not being based upon primary ones, but rather a second, distinct moral judgment.
- 42.
Eleftheriadis (2008: 71).
- 43.
Consider this jurisprudential debate about PROPERTY: is it composed of multiple, fungible normative positions, or is a right to exclude the keystone of the concept? James Penner, Thomas Merrill, and Henry Smith take various approaches to ‘the’ right to exclude stance. They nevertheless disagree about what this means: is it a claim that others self-exclude, or also powers by which to enforce others’ exclusion in the face of threatened breach? Whether or not they are correct about the overall debate, Penner was correct in 1997 that the RCTD is a right of exclusion, whilst the right to exclude concerns powers and liberties by which to remedy transgressions of that RCTD. See Penner (1997); Merrill (1998); H.E. Smith (2002). Cf. Terry (1884: 100).
- 44.
- 45.
See, e.g., Frydrych (2018a). Sanction theories are criticised for ignoring or rejecting a distinct role of legal duties as requirements to act or forbear. They also tend to (but need not) reduce or replace the normative sense of duty—a belief in a requirement to comply—with motivations to conform out of fear of punishment or other undesirable repercussions. See Hart (1994); Woozley (1968); Hacker (1973); Raz (1999: 156–61); S.A. Smith (2012: 227–38).
- 46.
- 47.
They themselves insist that theirs is just one amongst many ways of conceiving matters here. Calabresi and Melamed (1972: 1089 & n.2).
- 48.
- 49.
E.g., Fletcher (2017: 236–7, 239 & n.11, 255), discussing: Michigan v. Bay Mills Indian Community 572 U.S. 782 (2014) and Oklahoma Tax Commission v. Citizen Band, Potawatomi Indian Tribe of Oklahoma 498 U.S. 505 (1991). See also White (1984: 25) for further examples of primary rights and duties without secondary positions. (Some of his examples, however, are erroneous. For example, regarding statutes of limitation, a time-barred right-holder may nonetheless commence an action but is subject to the statute being raised as a knock-down defence).
- 50.
See, e.g., S.A. Smith (2012: 235 n.33).
- 51.
Property Law Act 1958 (Vic) Section 53(1)b; Secretary, Department of Social Security v James [1990] FCA 213.
- 52.
- 53.
Kramer (1998: 8–9, 34, 46, 63–5, 100, 106); Kramer (2000: 476–7, 481–2). On Kramer having perhaps changed his mind about what makes a legal RCTD ‘genuine’ or ‘nominal’, see Chapter 5 note 38.
- 54.
Kramer (2000: 482–4).
- 55.
Kramer & Steiner (2007: 297).
- 56.
It is equally groundless to say that legal RCTDs unprotected by immunities against nullification are also merely ‘nominal’ ones, rather than genuine ones—if that is indeed now Kramer’s view—since being protected thus has nothing to do with whether the RCTDs are valid components of the system.
- 57.
This invites larger questions about theories of law, which are beyond this chapter’s purview. However, we will re-tread upon this theme of alternative modes of rights usage in the next chapter.
- 58.
On what I call ‘quaternary rights’, see Appendix 3.
- 59.
Far too much ink has been spilled debating whether rights conflicts are even possible, or whether rights are instead ‘compossible’ (i.e., supposed conflicts between competing rights claims are merely ephemeral and serve only to demonstrate each right’s true scope). Subscribers to the Compossibility view, however, are few and far between today. See, e.g., Steiner (1998).
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Frydrych, D. (2021). Chapter 7 Legal Rights Enforcement. In: The Architecture of Rights. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-76039-7_7
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