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THE LEGISLATURE: A VITAL PART OF THE APPARATUS OF CIVIL RIGHTS.

I. LEGISLATED RIGHTS IN FOUR COUNTER-THESES

Legislated Rights sets out to explain and defend an "obvious proposition" that is "obscured in modern, court-centered modes of human rights discourse." (1) The book states the proposition, obvious in part for being modestly expressed, in the first sentence. "The legislature is well placed to secure and promote human rights." (2) This proposition was almost unquestioned from the time of the English Revolution until the American legal realist revolution. (3) That the proposition has fallen into disfavor in common-law jurisdictions is beyond dispute. Contemporary academic and legal discourse takes as given judicial supremacy in security of fundamental rights, and legislative indifference or hostility to them. As the authors put it, "it has become axiomatic that the legislature is to be expected to act contrary to human rights and that only a judicially enforced bill of rights will secure a commitment to rights." (4)

The obvious proposition thus requires a defense against the now-axiomatic account, which the authors call the "received approach." (5) The received approach places judges at the center and legislators at the periphery of the enterprise of securing human rights by specifying civil rights. Influential theorists have achieved this unsettling of ancient wisdom in part by focusing on defective legislatures rather than well-ordered ones. They "characterised as paradigmatic what ought to be understood as legislative pathologies." (6) The "ought" here is a normative imperative for academics and jurists who attempt sound descriptive scholarship. The book does not proffer a normative argument about the proper balance of powers between legislative and judicial (though it certainly has normative, constitutional implications). The authors set out to reframe a clear picture of how a properly-constituted and well-functioning legislature responds and adds security to human rights in fact.

The authors of Legislated Rights attribute to the received approach four theses, which they desire to challenge. The first thesis is that a legislature acts to aggregate preferences or maximize collective utility, (7) enterprises that necessarily involve zero-sum contests between individual or identity-group interests. The second is that legislatures are institutionally biased in favor of majority interests and against minority interests. (8) The third thesis is that "the legislature regularly and permissibly acts in opposition to human rights, since it must infringe rights to achieve other aims for the sake of the public interest." (9) The fourth thesis is that almost all human rights are defeasible, as the unavoidable infringement of rights is often justifiable on the balance of competing interests. (10) Together, these four theses commend a strong power of judicial review of legislation, judicial diligence on behalf of rights against legislative encroachment, and the use by judges of balancing or proportionality tests to assess when legislative infringement of rights is justified.

The four theses of the received approach provide a useful foil to frame and clarify the four major premises of the book's argument, which the authors call "counter-theses." These are:
(1) the legislature is capable of principled, reasoned deliberation,
and the central case of legislative action consists in reasoned
deliberation to promote the common good, which has as its concern the
wellbeing and rights of all persons in community; (2) the legislature
is not inherently biased against minorities and is fit to engage in
principled decision-making about human rights; (3) sound legislation
does not oppose human rights, but rather affirms the requirements of
human rights, including by specifying the broad, goal-oriented
standards included in human rights instruments into relatively precise
legal form; and (4) the legislature is capable of securing human rights
by specifying them in a form so that rights are not defeasible against
countervailing interests or the general welfare. (11)


The first three of these counter-theses are revolutionary in contemporary scholarship about legislatures and rights. And, in making the case for those premises, I think the authors are successful. In Part 11 of this essay, I will explain why the book succeeds on the first three counts, and why that success matters. (12) Yet, as I will explain in Part III below, I think the book fails to demonstrate persuasively counter-thesis four. Indeed, I think premise four cannot be demonstrated for reasons Aristotle identified more than two millennia ago. (13) Just as proponents of the received account fail to contend with the strongest arguments in favor of legislative specification of rights, the authors of Legislated Rights fail to contend with the strongest arguments in favor of the role that natural rights, customary rights, vested private rights, and other pre-positive sources of legal obligation must play in specifying civil rights, and that impose limitations on legislative power as a matter of legal justice.

II. RIGHTS AND THE COMMON GOOD

The book is tightly argued and its premises are patiently developed. The book's analytical precision avoids sweeping generalization. The authors consider carefully each aspect of each premise. The result is a slim, elegant argument.

The authors' modesty and precision might cause readers to miss the profundity of key insights. One of these is the idea that legislated rights can, and in central instances do, serve the common good of persons. The authors employ Hohfeld's scheme of jural relations and other analytical tools to demonstrate the inadequacy of unspecified right assertions. (14) When used by other scholars, these analytical devices often yield a reductionist account of rights. What analytical jurisprudence gains by distinguishing the different jural relations bound up in a legal status or relationship, it often yields back by reducing legal advantages and disadvantages to mere power comparisons.

One sees this reductionism most clearly in American Legal Realism and in the legal criticism movement. (15) Though not inherently cynical, those schools share the cynic's failure to attend to the reasons for which people obey their legal obligations. In their schemes, rights are either mere instruments for predicting by scientific methods how judicial power will be exercised or devices to be manipulated in zero-sum power conflicts between different identity groups.

By comparison to those schools of academic skepticism, the authors of Legislated Rights demonstrate the inherent desirability of specifying rights to achieve a genuinely common good. Following Hart (who followed Plato, Aristotle, and Aquinas), (16) they show how legal justice can serve natural justice when designed in pursuit of good ends. Right action is the keystone. A right in their account is not a possession or entitlement but rather a guide to practical deliberation and action--"the right thing to do." (17) This univocal sense of right enables the authors to connect legislation to human rights, for legislation specifies by rule what intentions and actions are to be done or avoided in choosing and doing. The decision to jettison in rem rights deprives the authors of the plural senses of "right" which common-law jurisprudence supplies, a deprivation that exposes their blind spot. (18) But it also frees the main argument from needless baggage.

Though the argument is predicated on "right" as a reason for action, the result is not a normative argument. The book argues that legislatures are competent to specify rights, not that they should have exclusive jurisdiction over any class of rights. But nor do the authors load the dice with false neutrality. Descriptive jurisprudence cannot avoid evaluation if it is to be done well. (19) Scholars of law are engaged in academic inquiry--inquiry for the sake of knowing what is true, classically known as theoretical reasoning--about the practical reasoning of people who act for legal reasons. (20) To perform good descriptive work about the normative activities of human beings requires some understanding of those normative activities from the inside. In particular, one must discern the most important features of an institution equipped to secure human rights from the perspective of those who participate in it.

To see that well-constituted legislatures possess the central features of a rights-specifying institution, or even to doubt that proposition, is to make an assessment both about what it means to be a legislature and what it means to be a rights-specifying institution. Value is bound up in a legislature's institutional design. A good legislature has a moral purpose. It provides a forum for the political community to deliberate about existing legal reasons and the reasons for possible new legal reasons. If not, then it serves some other practical end. Similarly, to assess a legislature's efficacy for specifying rights, one must first have in mind some central instance of an institution that does that job well.

Though the book is descriptive, the authors do not attempt to hide the assessments inherent in their argument: a political society that secures human rights is better than one that does not. Both civil rights and concrete remedies for their deprivation are necessary to secure human rights. Rights should be specified to direct practical reasoning in law. That specification should be done in rules, which apply generally and equally.

Scratch just below the book's analytical rigor and you will find the perspective, manifestly shared by all of the authors, that rights in their focal sense are oriented toward the common good, a good that is not reducible to mere preference or a desire to oppress. A cynic might assume that this is a mere rhetorical strategy to make a majoritarian institution seem less threatening to minority rights. But in fact, predicating rights on the common good is the way to understand why majority factions owe an obligation--a moral obligation--to secure the human rights of minorities. The move toward the common good enables the book to avoid the intractable conflict between individual and collective interests, which so flummoxes contemporary thinking about rights.

The idea of a common good does not belong to any particular political ideology. Natural rights theorists disagree whether the political common good is basic or merely instrumental. Some follow Aristotle in thinking that all communities are political, starting with the family, and that the polis, being the most complete political community, possesses the most perfect common good. (21) Others follow Aquinas in thinking that the common good is only instrumental for securing the conditions of security and law so that individuals and non-state communities can pursue their genuinely-basic goods, which are not comprehended within the good of the polis as a whole. (22) The authors of Legislated Rights appear to side with Aristotle. For example, they suggest that the common good of the political community encompasses the private goods of all of its members, "including: life, liberty, security, equality, privacy, family life, property, religion, expression, association, and assembly." (23)

Many Americans, especially classical liberals, will find this disagreeable, even potentially illiberal. Indeed, some parts of the book might prove a distraction, especially the dubious and undefended empirical assertions in chapter three. For example, the authors state that centralized redistribution schemes are more apt than private ordering to produce goods and secure rights. (24) And they suppose that people need the "specific convergence" of extensive legislative and regulatory schemes in order to abstain from violating their duties to avoid harming others, such as the duty not to run a red light. (25)

Nevertheless, the argument of the book stands without these contestable glosses. Indeed, that the political common good is not basic in the way that the good of the family or the university is basic does not detract from the desirability of specifying rights with reference to the common good. To the contrary, because the common good is plural, a theory of rights as grounded in the common good can yield a pluralist understanding of rights. The argument of Legislated Rights is not inherently incompatible with liberalism.

III. PRE-POSITED LAW

A primary object of the book is to "recall the unique capacity of positive law to solve coordination problems, to promote important aspects of individual wellbeing, and to prevent or minimise injustice." (26) To show that this capacity is unique, the authors criticize on various grounds custom, usage, private law, and other forms of law not posited by legislatures. They recognize that persons have rights "prior to any legal specification by a legislature," (27) including "natural rights," (28) Yet pre-positive sources of rights are inadequate, they charge; customary law lacks a rule of change, and judges are not fit to change the law. "A judge deciding a case responds to that legal dispute and his decision is limited by the existing legal materials. It is not open to him to simply change the law to be as he thinks it should be if it were open to him to posit the law anew." (29) The legislature responds to the political community's need "to institute a body to make law deliberately," and to "respond directly to the reasons that bear on changing the law." (30)

Here lies a tension in the argument, and a blind spot. Insofar as natural rights are universal, it would be unjust to change their declaration in human law. The legislature is an institution of legal change, not law creation, and its willingness to alter legal rights should be tempered by a strong deference to ancient practical wisdom. Furthermore, customary law does change as people deliberate about their practices and institutions, else lawyers would never have developed the doctrine of desuetude. Customs change slowly, and social engineers are often impatient. Yet rapid legal change always produces unintended consequences.

So what of common law? This is a lacuna in Legislated Rights. The authors recognize that rights correlating with general duties of abstention--absolute moral rights not to be killed or tortured, (31) rights imposing prohibitions on harmful action, (32) and other so-called "negative" rights (33)--exist by custom and legislative silence. (34) They follow the Hohfeldian practice of characterizing a liberty as the absence of legal duty, and so understand liberties to exist because of the absence of law on the subject matter (35) (though they deny that the same logic applies to immunities). The authors acknowledge that relevant law might not exist because of a custom, but in their telling, the custom is one of the "law-makers" themselves, who by custom choose not to impose a legal duty. (36) They give as examples the right to speak freely in one's home and the right peaceably to assemble in public places, implying that the legislature could lawfully abrogate those liberties simply by changing its own custom. (3)

The authors claim that common-law right specification is contrary to "Rule of Law values," (38) because common law is unclear and because common law "can be changed only by a decision in which the judge applies that change in the case sub judice--a change that the parties to the case may not have foreseen." (39) This idea would come as a surprise to those myriad parties who routinely make the law by their own deliberate actions in conveyances, gifts, contracts, pledges and liens, condominium and residential association bylaws, and many other acts of private law-making. The practice of common law produces millions of discrete, obligating legal duties on particular persons, each correlating with a fully-specified right.

Indeed, the history of legislation in Anglo-American property and contract law is a story of legislatures inventing formal limitations to slow and even prevent legal changes made by innovative lawyers, who specify rights and duties to assist their clients' plans of action. From the Statute of Uses to statutes prohibiting restraints of trade, legislatures have often redirected or even halted the course of legal change in the practice of common law. There were, of course, good reasons for those legislative acts. But it was the legislative acts, not the ancient common law, that the parties to existing settlements may not have foreseen. And insofar as Parliament and other English-speaking legislatures today are allowed to change the law retrospectively, deliberately abrogating the vested rights of classes of persons, (40) it is odd that the authors should direct their concern for settled expectations at the common law rather than at legislatures.

More provocatively still, at times the authors take aim at the Legal Realist caricature of common law as judge-made law. They declaim that a "judge in a case under the common law has a dual role of law applier and (potentially) law-maker." (41) They rightly worry about judges exercising discretion to decide cases unconstrained by law, (42) but they associate "judge-made law" with common law (43) and legal direction with legislation. (44) Common-law adjudication has no "canonical linguistic form," they assert, and any coherence it possesses is imposed upon it by commentators. (45)

This straw man collapses easily, but he bears little resemblance to the common law described and applied in real cases by Coke, Hale, Kent, and Story. He looks more like the caricature of a common-law jurist that predominated during the skeptical decades of the late 19th and 20th centuries. In that caricature, the English jurist resisted the insights of Roman law and scholastic philosophy. He thus "repelled with jealous vigilance the encroachments of light from the primaeval darkness of her law, and has preserved in all its shapeless deformity the chaos accumulated by the successive contributions of empirical mechanics... to whom all method was unknown and everything that resembled principle unintelligible." (46) Careful scholarship in recent decades has shown this to be claptrap. (47) In fact, common-law jurists learned from Roman jurists, Aristotle and Aquinas, Maimonides, canon law, and other sources, and they drew upon the principled reasons and heuristics of the Western tradition in both theory and practice.

Private common law is more pluralist than public law, but it too has a reason and coherence to it. Lawyers and their clients make private law for common, practical ends--according to basic reasons that people pursue together--so its elegance and order should not surprise us. Indeed, the explosion of private law theoretical scholarship in recent years reveals how elegant and orderly private common law is at all levels of specification. (48)

The authors insist that legislation is inherently superior to common-law specification with respect to all human rights. They give examples of rights that require legislative specification including the rights of spouses and children and "the right to own property 'alone as well as in association with others.'" (49) The latter requires "systematic regulation of personal and real property ownership." (50) But of course, parents were held to their natural duties, and property rights were enforced in court, long before the advent of the administrative state. The authors add that the right to enjoy the fruits of one's intellectual labor requires "an extensive scheme of legislation on intellectual property." (51) They do not mention such common-law doctrines and practices as the right of first publication, trade secret, and unfair competition.

Significantly, the book also contains no mention of vested rights. (52) This is understandable, as conventional academic wisdom teaches that the vested rights doctrine is peculiarly American. (53) But as I have shown elsewhere, the basic idea came from English law, especially the insistence of English jurists that neither courts nor Parliament are competent to divest persons of certain natural liberties and duties that are grounded in the law of reason. (54) And of course, English common law has a public-law analog in the prohibition against ex post facto laws. Early American jurists were not the only ones to recognize the dangers of a legislature that feels itself unconstrained to change law retrospectively and retroactively.

A judge who gives juridical enforcement to a fully-specified, vested right is not making the law. Nor, if vested, is the right unclear; it is a three-term Hohfeldian relation. When a landlord and tenant elect in their lease agreement to assign responsibility for maintenance to the tenant, the tenant owes the landlord the duty to maintain, as a discrete aspect of the general duty not to commit waste. The election giving rise to the right might have been chosen because of an imbalance of economic power, but it might have been chosen for reasons--lower rent for the tenant, less work for the landlord. Retrospective legislation inventing a non-waivable warranty of habitability is not required to specify the parties' rights; it abrogates their rights.

The same can be said of vested liberties and immunities that secure multital relations or clusters of personal relations. At common law, a child enjoys the vested right to a natural parent's support and maintenance with or without existing legislation saying so. Whether statutes terminating natural parental status and re-assigning the child's rights to other people for the purposes of artificial reproduction promote or injure human rights is an open question. Regardless, if the object is to secure the child's right to be connected to her parents, no one can claim that the statute is necessary. A use of land made for decades without complaint by the neighbors, toward which new neighbors voluntarily move, is not a nuisance, while a new brick kiln in a residential neighborhood is. Perhaps the profound powers to divest people of their vested uses are normatively desirable (though I have my doubts). But that American legislatures were understood for more than a century to lack the power to abrogate vested rights, and still lack that power in several states, makes it problematic to claim that legislation is necessary to secure common-law rights.

More generally, the authors overlook two pervasive features of the common-law rights tradition. First, common law is pluralist in its sources and levels of specification. Just as proponents of the received approach denigrate the legislature's relationship with rights by holding up defective instances as central, the authors of Legislated Rights have selected easy targets from the common law. Second, common law, private law, and equity make up for the deficiencies of posited rules, just as legislation makes up for the deficiencies of those more particular aspects of legal and natural justice. The authors consider only one half of this equation.

Customary law and the law of reason are not unitary phenomena. Indeed, common law and equity are not even all unlegislated, much less unwritten. Statutes are an integral part of the common law, and a source of equitable power. And they have been so since long before English Civil War and the ascendance of parliamentary supremacy. Declaratory statutes codify and clarify existing customary norms. Remedial statutes often change customary law incrementally, altering the common law in some ways and leaving it unaltered in others. In turn, remedial acts become subsumed within judicial interpretations and the customary norms and institutions that people build upon them.

Consider the common-law liberty not to be convicted of a crime without some evidence of culpable intention. Common-law jurists have long guarded this ancient liberty with jealousy. And they continue to guard it against encroachment by legislatures, which often enact criminal and civil prohibitions without referencing any scienter requirement. As Justice Jackson explained, this right is rooted in ancient maxims and usages that reflect a universal requirement of natural reason. (55) So, when Congress declares common-law offenses such as theft to be violations of federal law, courts interpret those statutes to incorporate the scienter requirement with or without express mention. (56)

Furthermore, much non-statutory law is written and clear. When lawyers draft insurance contracts and merger and acquisition agreements, they have strong incentives to use precise language and to specify rights with care. The long tradition of numerus clausus makes concise habendum clauses effective to specify estates of ownership, leaving little or no doubt which incidents are included. Even context-dependent doctrines such as equitable servitudes, nuisance, and waste draw upon written sources, as where plat plans and neighborhood association bylaws provide evidence of what the community deems reasonable in the circumstances.

There also remains the fact of usage--the reality that people order their affairs according to more and less determinate, shared intentions, without the assistance of any law giver. From the right to roam in Scotland and right to hunt in South Carolina, to the right to sunbathe on beaches in Oregon, customs generate determinate rights. By ignoring all this, Legislated Rights conveys the impression that its authors are insensitive to the way that law really works.

Next, the authors tally the benefits of legislative specification of rights without accounting for the costs. Nor do they consider the advantages of alternatives. More than two millennia ago, Aristotle noticed that general rules and particular judgments compete with each other to bring about legal justice. Each has advantages over the other.

As Aristotle observed, judgment is the right discrimination of the equitable which, when done well, takes into account all of the relevant considerations of fact and legal justice bearing on the case. (57) It is inherently particular; but when correct, it is also true and conclusive. (58) By contrast, legislation is inherently general and therefore incomplete in its relation to justice.
The reason is that all law is universal but about some things it is not
possible to make a universal statement which shall be correct. In those
cases, then, in which it is necessary to speak universally, but not
possible to do so correctly, the law takes the usual case, though it is
not ignorant of the possibility of error. And it is none the less
correct; for the error is in the law nor in the legislator but in the
nature of the thing, since the matter of practical affairs is of this
kind from the start. When the law speaks universally, then, and a case
arises on it which is not covered by the universal statement, then it
is right, where the legislator fails us and has erred by over
simplicity, to correct the omission--to say what the legislator himself
would have said had he been present, and would have put into his law if
he had known. Hence the equitable is just, and better than one kind of
justice--not better than absolute justice but better than the error
that arises from the absoluteness of the statement. (59)


Aristotle's dilemma frustrates any attempt to understand legislation as complete law. Common law, with its plural sources of obligation in reason, conscience (equity), custom, and private ordering, makes available to the judge the materials to reconcile positive law with legal justice, and therefore to render rights fully conclusive. In the common-law tradition since the reconciliation of law and equity, equity is not the undoing of law but rather the perfection of law's rights on law's own terms. But the authors deprive themselves of the resources to render legislated rights conclusive in that way precisely to the extent they insist that legislation alone is sufficient to do the job.

In place of Aristotle's dilemma, the authors set up an easier target--a dichotomy between authority and discretion. (60) They insist that these are "mutually exclusive options." (61) And they associate discretion with common-law adjudication and authority with legislation. (62) But to read cases in which judges employed common-law and equitable maxims and doctrines to interpret statutes is to dissolve this false dichotomy.

The classic case illustrating Aristotle's dilemma and the common-law solution to it is Riggs v. Palmer. (63) To inherit the estate of his grandfather, Francis Palmer, young Elmer Palmer murdered him. (64) Francis had bequeathed his "considerable personal property" to Elmer. (65) But the arrival of a new wife for Francis made Elmer worry that Francis might alter his will. (66) Elmer decided to prevent this from happening by the surest means possible: poison. (67)

Whether Elmer should be given his grandfather's property under New York testacy law would be a simple question for a textualist. The will satisfied the formal requirements for enforcement stipulated in the act. (68) Yet the New York Court of Appeals insisted that the legislature did not intend to vest title in one who, like Elmer, consummates a will by murdering the testator. (69) Elmer Palmer's claim was contrary to the "general principles of natural law and justice," which forbid one to take "property by inheritance or will from an ancestor or benefactor whom he has murdered." (70) The New York legislature expressed no intention to abrogate that common-law rule, and therefore the statute must be interpreted to incorporate the rule implicitly. (71) The common law also specified the rights of those who stood to gain by Elmer's loss. The general rules of inheritance control in the absence of an enforceable testamentary disposition. That the right of Francis' heirs to inherit was not mentioned in the statute did not entail that they had no such right. "It was evidently supposed that the maxims of the common law were sufficient to regulate such a case, and that a specific enactment for that purpose was not needed." (72)

Did the legislature intend to confer upon Elmer the right to inherit his grandfather's estate by an act of murder? It defies credulous reason to suppose that it did. But the judges were not required to, and did not, refuse to attribute an unreasonable intention to the legislature as an exercise of discretion. Their reasoning was directed by law. Some of that law is ancient and universal, such as Aristotle's maxim that justice (equity) corrects general legal rules in their deficient parts. Some is particular, such as the prohibition in New York law against murder. In the common-law way of thinking, it is all law, and the rights it specifies are legal rights.

The authors rightly emphasize the achievements of legislative assemblies. These include the abolition of slavery in United Kingdom and United States and the security of American civil rights in the 1960s. (73) The authors add that in the 19th century, the United States Congress repeatedly promulgated legislation to secure the civil rights of black Americans, while the Supreme Court of the United States struck much of that legislation down. Those facts certainly complicate the now-conventional idea that courts vindicate rights while legislatures aggregate majority preferences.

Nevertheless, Anglo-American legislatures do not have entirely clean hands, and common law is not indifferent to civil rights. Progressives who sought to engineer society through legislation in the early 20th century imitated southern legislators who had used the slave codes to control black Americans in the late 19th century, rendering inherently nonculpable actions criminal. And before complete abolition, it was the common-law doctrine of Free English soil that promised freedom to slaves who escaped the political boundaries of slave colonies and states. (74) Those states used legislation contrary to common law to keep human beings in chains. Likewise, before the American Civil Rights acts, it was common law that prohibited unreasonable discrimination, especially racial discrimination, in places of public accommodation. (75)

IV. THE NON-DEFECTIVE LEGISLATURE IS COMPETENT

One result of the book's omissions is that it makes the legislature seem more indispensable than it is in fact. For example, the authors conclude one chapter with the promise that "good law making brings rights into being." (76) As this statement illustrates, to elide the distinction between declaratory and remedial statutes is to place upon the legislature far more responsibility than it can bear. It is to make the legislature the source of rights.

The story of Legislated Rights in some places resembles a creation story, in which legislatures generate civil rights ex nihilo. By contrast, the subtitle of the book emphasizes that legislation secures human rights. And the authors insist that at least some rights have normative force apart from legislation. But the book does not consider this possibility in detail. And the (im)balance of its argument causes pre-positive rights to recede from view--even to disappear altogether.

The overstatements seem unnecessary, in light of the modesty of the book's overall thesis. Indeed, the fourth counter-thesis appears superfluous. The authors set out to show that the legislature is well placed to secure and specify rights. In that project, they succeeded admirably. The legislature is indeed a vital institution in rights discourse and security, and this book makes an important contribution to our understanding of human and civil rights.

(1) GREGOIRE WEBBER ET AL., LEGISLATED RIGHTS 1 (CAMBRIDGE UNIV. PRESS 2018) [hereinafter LR].

(2) Id.

(3) See, e.g., WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND; THE FEDERALIST.

(4) LR, supra note 1, at 2.

(5) Id. at 32-39.

(6) Id. at 4.

(7) Id. at 4.

(8) Id. at 6-7.

(9) Id. at 10.

(10) LR, supra note 1, at 11.

(11) Id. at 25.

(12) See infra Part II.

(13) See infra Part III.

(14) LR, supra note 1, at 41-42.

(15) See generally James Penner & Henry E. Smith, Introduction in PHILOSOPHICAL FOUNDATIONS OF PROPERTY LAW xv-xxvii, xvii (James Penner & Henry E. Smith, eds. 2013); Adam J. MacLeod, Metaphysical Right and Practical Obligations, 48 U. MEM. L. REV. 431, 436-39 (2017).

(16) LR, supra note 1, at 45.

(17) Id.

(18) See infra Part III.

(19) See JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 17 (2d ed. 2011); Eric R. Claeys, The Conceptual Relation Between IP Rights and Infringement Remedies, 22 GEO. MASON L. REV. 825, 835 (2015).

(20) Pavlos Eleftheriadis explains succinctly, "Theoretical reason is concerned with what is rational to believe. Practical reason is concerned with what is rational to do." PAVLOS ELEFTHERIADIS, LEGAL RIGHTS 16 (2008).

(21) ARISTOTLE, POLITICS, I.1.

(22) THOMAS AQUINAS, SUMMA THEOLOGICA Theologiae I-II, q. 96 art. 3; JOHN FINNIS, AQUINAS: MORAL, POLITICAL, AND LEGAL THEORY 219-27 (1998).

(23) LR, supra note 1, at 6.

(24) Id. at 56-58.

(25) Id. at 58.

(26) Id. at 16.

(27) Id. at 11.

(28) Id. at 13.

(29) LR, supra note 1, at 93.

(30) Id.

(31) Id. at 102.

(32) Id. at 120.

(33) Id. at 19.

(34) Id. at 126.

(35) LR, supra note 1, at 126.

(36) Id.

(37) Id.

(38) Id. at 129.

(39) Id.

(40) West v. Gwynne, (1911) 2 Ch 1.

(41) LR, supra note 1, at 129.

(42) Id. at 153-80.

(43) Id. at 174-75.

(44) Id.

(45) Id.

(46) J.G. PHILLIMORE, PRIVATE LAW AMONG THE ROMANS 6 (1863).

(47) See, e.g., Timothy Endicott, The Conscience of the King: Christopher St. German and Thomas More and the Development of English Equity, 47 U. TORONTO L. REV. 549 (1989); R.H. HELMHOLZ, NATURAL LAW IN COURT: A HISTORY OF LEGAL THEORY IN PRACTICE 82-178 (2015); and the essays in GREAT CHRISTIAN JURISTS OF ENGLISH HISTORY (Mark Hill QC & RH Helmholz eds., 2017).

(48) See, e.g., Eric R. Claeys, Intellectual Property and Practical Reason, in 9 JURISPRUDENCE 251 (2017); Eric R. Claeys, Labor, Exclusion, and Flourishing in Property Law, 95 N.C. L. REV. 413 (2017); John C.P. Goldberg, Inexcusable Wrongs, 103 CAL. L. REV. 467 (2015); John C.P. Goldberg & Benjamin C. Zipursky, Torts as Wrongs, 88 TEX. L. REV. 917 (2010); ADAM J. MACLEOD, PROPERTY AND PRACTICAL REASON (2015); Thomas W. Merrill & Henry E. Smith, The Morality of Property, 48 WM. & MARY L. REV. 1849 (2007); CHARLIE WEBB, REASON AND RESTITUTION: A THEORY OF UNJUST ENRICHMENT (2016); Benjamin C. Zipursky, The Inner Morality of Private Law, 58 AM. J. JURIS. 27 (2013).

(49) LR, supra note 1, at 123, (quoting Articles 16 and 17 of the Universal Declaration of Human Rights).

(50) Id.

(51) Id. at 123-24.

(52) See Soc'y for the Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 766 (C.C.D.N.H. 1814) (No. 13, 156); 2 JAMES KENT, COMMENTARIES ON AMERICAN LAW 319 (2d ed., O. Halsted 1832); 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES [section][section] 1398-99, at 272-74 (5th ed. 1891); THOMAS M. COOLEY, TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 357-413 (1868); Christopher M. Newman, Vested Use--Privileges in Property and Copyright, 30 HARV. J.L. & TECH. 75, 80-81 (2016).

(53) See, e.g., Edward S. Corwin, The Basic Doctrine of American Constitutional Law, 12 MICH. L. REV. 247, 255 (1914); Gordon S. Wood, The Origins of Vested Rights in the Early Republic, 85 VA. L. REV. 1421 (1999).

(54) Adam J. MacLeod, Of Brutal Murder and Transcendental Sovereignty: The Meaning of Vested Private Rights, 41 HARV. J.L. & PUB. POL'Y 253, 276-86 (2017).

(55) Morissette v. United States, 342 U.S. 246 (1952).

(56) Elonis v. United States, 135 S. Ct. 2001 (2015).

(57) ARISTOTLE, ETHICS at VI.11.

(58) ID.

(59) ARISTOTLE, supra note 57, at V. 10.

(60) LR, supra note 1, at 155.

(61) Id.

(62) Id. at 174-75.

(63) 22 N.E. 188, 189 (N.Y. 1889).

(64) Id.

(65) Id.

(66) Id.

(67) Id.

(68) Id.

(69) Riggs, 22 N.E. at 190.

(70) Id.

(71) Id.

(72) Id.

(73) Id. at 146-50.

(74) Somerset v. Stewart (1772) 98 E.R. 499; Forbes v. Cochrane (1824) 2 B. & C. 448; Dred Scott v. Sandford, 60 U.S. 393, 534-37 (1857) (McLean, J., dissenting).

(75) Ferguson v. Gies, 46 N.W. 718, 719, 719-20 (Mich. 1890); Bell v. Maryland, 378 U.S. 226, 254 (1964) (Douglas, J., concurring); Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 Nw. U. L. REV. 1283, 1303-73 (1996); Adam J. MacLeod, Tempering Civil Rights Conflicts: Common Law for the Moral Marketplace, 2016 MICH. ST. L. REV. 643, 686-700.

(76) LR, supra note 1, at 84.
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Title Annotation:Symposium on "Legislated Rights: Securing Human Rights Through Legislation"
Author:MacLeod, Adam J.
Publication:Faulkner Law Review
Date:Sep 22, 2018
Words:6162
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