PRIVATE LAW AND PUBLIC RIGHT

Abstract

In Kant's philosophy of law “public right” refers to the condition in which public institutions guarantee rights. This lecture deals with the relationship between public right and the rights of private law. In accordance with corrective justice, private law links the parties to a transaction bilaterally, so that they are subject to correlatively structured bases of liability. In contrast, public right is omnilateral, linking everyone to everyone else. Two normative ideas inform public right: publicness (that public institutions secure everyone's rights on the basis of reasons that can be known and acknowledged by all) and systematicity (that the norms and institutions of law form a systematic whole). In standard cases public right makes no difference to a private law controversy except to add the dimensions of publicness and systematicity. In some circumstances, however, public right alters the principle on which a court resolves a controversy, without, however, changing the structure and content of the private-law right itself. Kant himself pointed out that publicness can have this effect, as he illustrated in his discussion of market overt. Systematicity operates similarly, sometimes extending and sometimes narrowing the effect of the plaintiff's right. For instance, the tort of inducing breach of contract expands the effect of the promisee's right by securing it against everyone. On the other hand, the privilege to preserve property, exemplified in the controversial case of Vincent v Lake Erie, narrows the effect of the plaintiff's right by subjecting it to conditions that justify its infringement. The effect of public right is to make right holders reciprocally determining participants in the legal system, thereby transforming private law into a community of rights.