Rights of Action in Private Law: Paradigms, Exceptions and Justifications?
Presented by: Professor Kit Barker
Time and date: Wednesday 10 July 2024, 1-2pm (Brisbane time)
Location: Law School Board Room (W353), Level 3, Forgan Smith Building, The University of Queensland, St Lucia
And via Zoom: https://uqz.zoom.us/j/82310962384
About the event
Abstract: This is an early presentation of a working draft chapter forming part of a much bigger book project on the configuration of rights of action in both public and private law. Since Blackstone, it has become common in the mainstream to think of public law as protecting public interests and being enforced publicly (by state agents); and private law as protecting private interests and being enforced privately (by individuals and corporations). In fact, this vision (if it is genuinely held) is factually inaccurate. There are persistent exceptions in both public and private law. The big questions are – how extensive are these exceptions; how are they justified in the modern day; and what do they tell us about the rules governing the allocation of rights of action to public and private entities?
This chapter is just one step on the path to answering the bigger question. It examines private rights of enforcement in private law. Here, the paradigm is traditionally at its very strongest, it commonly being assumed that only those with substantive primary rights have the right to enforce those rights; and that it is no-one else’s business to do so. The paradigm is reflected in the common statement that there are no separate ‘standing’ rules in private law, distinct to the substantive rules of private law itself: if you have a private law cause of action, you have a right of action; if you don’t, you don’t. That’s it.
In this, preliminary discussion I do three things:
- Clarify the basic paradigm – I clarify that it is not just the holders of primary and secondary claim-rights that have rights of action, but also holders of primary legal powers, liberties (privileges) and immunities. All those who hold any of these Hohfeldian advantages in private law have rights to enforce their rights. This is especially clear from cases involving applications for declaratory relief.
- Identify exceptions to the paradigm – building upon the work of Tim Liau and others, I identify and discuss candidate cases in which third parties have rights to enforce the primary and secondary rights of others. Some cases are, in my view, false or improbable, but some are real. One such is the controversial recent High Court decision in Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5.
- Identify candidate explanations or justifications for the paradigm and the exceptions. This, most difficult part examines the normative relationship between primary rights and rights of action. I contend that there are good justifications for the basic paradigm on several different conceptions of this relationship (from Ripstein and Weinrib, to Gardner, Goldberg and Zipursky). My main suggestion here is that if there are moral reasons to protect particular private interests through the conferral of primary legal rights, then conformity with these reasons also suggests that, all other things being equal, those granted the primary rights should also have rights to enforce their rights. I also posit candidate explanations for the various exceptional cases in which there are divergences from the basic enforcement pattern. Most, of these are consistent with the will of the right-holder and so are true to theories of rights that focus on the sovereignty of the rights holder, but some are responses to problems of agency, or, potentially enforcement capture.
About the speaker
Kit Barker is Professor of Law at the University of Queensland Law. His interests lie in the law of torts, unjust enrichment and legal theory in particular. In recent years, he has increasingly focused his research on tricky intersections between public and private law and on the relationship between the citizen and state, as mediated through private law rules. He is a graduate of the University of Oxford and a Fellow of the Australian Academy of Law.
Full Biography.
About Australian Centre for Private Law Events
The mission of the Australian Centre for Private Law is to foster the development and understanding of the private law through advanced theoretical, doctrinal, empirical and historical research, and the dissemination of that research through education and professional outreach. By supporting the work of its Fellows, the ACPL seeks to promote research in all areas of private law and to establish itself as a research centre of national and international importance. The core initiatives of ACPL are:
Research: To advance a deeper understanding of the structure, principles and policies of the private law through advanced theoretical, comparative, and empirical analysis.
Education: To promote, facilitate and disseminate the results of that research for the benefit of Australia’s social and economic fabric.
Professional Outreach: To engage the judiciary and members of the legal profession in discussion about the values, goals and methods of private law and the respective roles of the judiciary, the legal profession and the academy in the interpretation and reform of private law.
The ACPL embraces all branches of private law, including the law of contract, torts, trusts, equity, property, unjust enrichment, including theoretical and jurisprudential dimensions and contextual applications thereof.
