Rule-Based Rights and Court-Ordered Rights

Abstract

This essay addresses a single question: how do we know what rights we have? In particular, how do we know what rights we have vis a vis other citizens? I explore this question by first distinguishing two kinds of inter-personal rights — rights declared by substantive legal rules (‘rule-based rights’) and right created by judicial rulings (‘court-ordered rights’) — and then by exploring the links between these rights. I criticize various attempts to establish a necessary link between rule-based rights and court-ordered rights (ie, arguments that might allow one to say, for example, that if a court makes X ruling, Y right must exist). I then examine various reasons, based on general features of court rulings and rule-based rights, that one might expect courts to make (or not make) particular kinds of rulings. The argument of this section is that some of the considerations that courts might be expected to take into account support rulings that replicate rule-based rights, but others argue for rulings that transform or limit rule-based rights or even for rulings that create entirely new rights. The final conclusion is therefore messy: there is no single or unique relationship between rule-based rights and court-ordered rights. Court rulings are one piece of evidence, but only one piece, that we can use to help determine our rights.

Keywords: private law, remedies, legal theory, private law rights