I argue that corrective justice theorists of private law (at least those who view corrective justice as instantiating a Kantian conception of political morality) cannot successfully account, except in a stipulative way, for a central structural feature of the private law landscape: the correlative structure of private law litigation – the fact that the plaintiff must initiate and maintain proceedings against the defendant in order to vindicate her rights. Corrective justice theory readily explains why a defendant has a duty to correct his infringement of the plaintiff’s rights, but it doesn’t so readily explain why the plaintiff has the power to decide whether any such duty gets enforced.
I sketch an alternative explanation that can explain why the plaintiff should have the power. Because realising justice is a difficult task even for a polity in which most people are committed to the project, persons’ private legal rights in a moderately non-ideal polity should be regarded as provisional determinations of what justice entitles them to that are subject to revision as the community makes progress towards realising justice. The relational norms of private law, given that they take persons’ entitlements as given for the most part, should be regarded in a similar light. But if the norms of private law are therefore properly regarded as only provisional wrongs, the legal system ought to make room for plaintiffs and defendants to negotiate about the appropriate response to a defendant’s legal wrongdoing in the light of their own, perhaps superior, conception of what justice between them requires. This in turn suggests that the legal system ought not to enforce private rights directly. Instead it should give the parties some latitude to figure things out for themselves. It does this by giving the victim the authority to decide whether to enforce her legal rights, thus enabling her to decide whether to seek the remedy she might be legally entitled to or instead obtain another resolution of the dispute with the defendant that, at least in the parties’ eyes, better realises justice between them.
Stone, Rebecca, Who Has the Power to Enforce Private Rights?, UCLA School of Law, Public Law Research Paper No 22-04, 2022, in Oxford Studies in Private Law Theory Volume 2 (Paul B Miller and John Oberdiek eds), forthcoming.