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Monday, April 25, 2011

Helge Dedek on the Role of Rights in Blackstone's Commentaries

The venerable Blackstone seems to be attracting a lot of interest these days. Dr. Helge Dedek, who teaches Roman Law and Legal Traditions (among other things) at the McGill University Faculty of Law, has just posted "Of Rights Superstructural, Inchoate and Triangular: Some Remarks on the Role of Rights in Blackstone’s Commentaries" on SSRN as part of the accepted paper series. You can read it there, or as part of THE RIGHTS OF PRIVATE LAW, A. Robertson, D. Nolan, eds., Hart Publishing, 2011 eventually.

Here's the abstract:

Peter Birks has famously described the way in which rights operate in Blackstone’s legal cosmos as “superstructural.” In order to fully understand what this assessment entails, we will have to take a closer look at how the elements of Blackstone’s conceptual mechanism – right/wrong, rights, wrongs, and remedies – interact and complement each other. This “juridical” analysis, however, will inevitably take us back to the more foundational aspects of Blackstone’s vision of private law. In a formalist jurisprudence, Ernest J. Weinrib has explained, conceptual constructions and philosophical foundations are closely and intrinsically linked in the sense that the former are the expression of the latter – an insight particularly helpful, I believe, in Blackstone’s case, where the explicit verbalization of philosophical underpinnings remains fragmentary and basic theoretical assumptions have to be gleaned from doctrinal construction and categorization. As we shall see, the rights-remedies division in Blackstone’s organizational scheme is the expression of a “dualist” conception of the rights-remedies relationship: Blackstone’s perception of private law is not a Weinribian vision of a coherent, transactional unit, defined by the correlativity of right and duty. The “rights” that come into existence when a “wrong” is committed are of such nature that they can only be perceived as a triangular relationship that necessarily involves plaintiff, defendant and the state.

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