Private Law Theory

INTRODUCTION
In its most basic form, a ‘right’ is an entitlement to performance of an action by an individual that grounds a further entitlement to censure that individual absent performance. While debates about what rights seek to protect (eg, interests or choices to demand performance of acts that may not be in our interest) and/or what features one must have to possess a right (eg, interests or something more) continue, most models posit that rights must be ‘correlative’ with duties and that failure to fulfill a duty where other necessary features of a right are fulfilled create (second-order) entitlements to censure those who do not perform that duty. Despite this near-unanimity, ‘correlativity’ is often untheorized. In this work, I clarify its scope and meaning by explaining deficiencies with the canonical account of the correlativity of rights. I demonstrate that the arguments adduced for the canonical account are primarily legal in nature and there are only sufficient reasons to favor it in the private law domain. As a result, I further explain, either the canonical account of correlativity needs to be modified to account for the non-canonical structure of seemingly justified public law and moral rights or correlativity applies differently in private law, public law, and ethics, undermining the general applicability of the canonical account. I prefer the latter option, which can also avoid undue ‘pluralism’ about rights …

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Michael Da Silva, Correlativity and the Case Against a Common Presumption About the Structure of Rights, Journal of Value Inquiry. First Online: 16 July 2019.

First posted 2019-07-20 09:44:59