Much has been written in both the common law and the civil law about the ‘sources’ of rights or of obligations. Jurists have attempted to classify and organize these sources as a way of shedding analytical light on the different kinds of rights that exist in private law. Building on recent scholarship in Quebec civil law, the author argues that the idea of the source of a private right is deeply ambiguous, and that the failure to see this has bedevilled attempts to classify the sources of rights. Just as every effect has multiple causes, every right has multiple sources. The author also argues that a similar ambiguity inhabits the common law’s idea of a ‘cause of action’. Distinguishing between the different senses of the ideas of ‘source’ and ‘cause of action’ helps to clarify a number of debates in private law theory.
Smith, Lionel, Sources of Private Rights (March 21, 2020). Forthcoming, S Degeling, M Crawford, N Tiverios, eds, Justifying Private Rights (Hart, 2020).