"Le Droit Subjectif" and English Law

Editorial Committee of the Cambridge Law Journal

"Le Droit Subjectif" and English LawAuthor(s): Geoffrey SamuelSource: The Cambridge Law Journal, Vol. 46, No. 2 (Jul., 1987), pp. 264-286Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4507026 .

Accessed: 12/06/2014 13:35

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

Cambridge University Press and Editorial Committee of the Cambridge Law Journal are collaborating withJSTOR to digitize, preserve and extend access to The Cambridge Law Journal.

http://www.jstor.org

This content downloaded from 62.122.76.45 on Thu, 12 Jun 2014 13:35:43 PMAll use subject to JSTOR Terms and Conditions

http://www.jstor.org/action/showPublisher?publisherCode=cup

http://www.jstor.org/action/showPublisher?publisherCode=ecclj

http://www.jstor.org/action/showPublisher?publisherCode=ecclj

http://www.jstor.org/stable/4507026?origin=JSTOR-pdf

http://www.jstor.org/page/info/about/policies/terms.jsp


Cambridge Law Journal. 46<2). July 1987, pp. 264-286 Printed in Great Britain

"LE DROIT SUBJECTIF' AND ENGLISH LAW

Geoffrey Samuel*

Some years ago Professor Lawson reminded a Continental audience

that "[i]n the English language there can be no confusion between the

two legal senses attaching to the German word 'Recht' which has made

it necessary to coin the two technical terms 'objektives' and

'subjektives Recht."' For in the English language "the former is 'law', the latter 'a right.'

"* In fact, as Lawson went on to explain, the notion

of a "subjective right" in the civilian systems is not quite the same as

"right" in the English system, in that as far as English lawyers are

concerned "the term 'right' has no metaphysical significance."2 Yet

Professor Lawson suggested at one point in his report that although in

America one speaks of "interests" rather than rights, the two terms are

synonymous3; and the association of rights with interests has also led

one Belgian theorist to conclude that the common law does recognise the concept of the le droit subjectif.4 It is the purpose of this article to

return to this topic of the subjective right and English law in order to

suggest that the association of le droit subjectif with "protected interest" ought to be treated with caution.

I

It must be stressed at the outset of this paper that there is no single and

fully accepted definition on the Continent as to what is meant by the

term "subjective right." A number of theories have been advanced

over the last century or so,5 but as they have all tended to reflect

different epistemological or philosophical positions the question of

* Reader in Law, Bristol Polytechnic. This article began life as a paper read to scminars at Bristol Polytechnic and at the Department of Philosophy, University College, Cork. My thanks, with the usual disclaimcrs, lo the participants of both scminars and to Bernard Rudden and Garrett Barden.

Lawson, "'Das subjektive Recht' in ihe English Law of Torts," Selected Essavs, Vol. 1 (North-Holland, 1977), p. 176. Ibid.,p. 177. Ibid.,p. 183. Ionescu, La notion de droit subjectif dans le droit prive (Bruylant, Brusscls, 2e ed., 1978), pp. 141-149. See generally, Ghcslin & Goubcaux, Traiil de droit civil: introduction generale (L.G.D.J., Paris, 1977), pp. 124-141; Weil & Tcrrc\ Droit civil: introduction generale (Dalloz, Paris, 4c ed., 1979), pp. 82-87.

264



C L J. "Le Droit Subjectif" and English Law 265

what is meant by the concept of the subjective right has often ended up

in the same kind of impasse as the question of what is meant by "law" itself.6 However for the purposes of this article probably the most suitable working definition is that offered by a leading French textbook on the legal system: the subjective right is a term corresponding to an "individual prerogative" in the legal subject.7 It is, as another textbook puts it, a power which the individual (legal subject) can exercise against another person or over a thing (legal object).8 Of course, as Lawson observed in his investigation, the idea of a metaphysical legal concept that attempts to embrace not just "what is lavv" but also "what ought to be law" is something rather alien to the common lawyer, who traditionally has been more used to leaving the latter question to political scientists9; yet the concept of a right is, perhaps now more than ever, a central theme of Western law because it raises questions not just about the pllilosophical starting point of legal thought: it raises an important question about the source of political authority.

This may seem at first sight a topic of minor concern, given Professor Lawson's observation that i'it is hard to whip up the interest of the orthodox lawyer even in parliamentary sovereignty""'; yet the truth is that times have changed since Lawson's assertion that the '4thrust in public law normally comes from the layman, not the lawyer.''l l Not only have the Englash courts moved increasingly towards a more formalised public law, 12 but there has been a

significant shift from the political consensus which, in turn, is forcing judges those lawyers who "furnish [the layman] with a theory"t3-

into the political arena. "Judges are now accepted as a perfectly normal element of the process by which power is exercised in at least some areas of government," wrote a political observer recently'4; and this has had the result that "submission to a judicial verdict is no longer a badge of ministerial incompetence or dishonour, so much as an emblem of the judges' expanding role as the citizen's policeman of the executive.' In this atmosphere the relationship between citizen and government the ius between individual and the State is no longer an esoteric question of public law theory: the strength of the iaris

vinculum which binds the citizen to the group is being put to its political test.

6 See, e.g., Ghestin & Goubeaux, supra, pp. 11(k115.

7 Ibid., p. 1 l 0.

x Weill & Terre, op. cit., p. 82. 9 Lawson, op. Ctt., p. 177.

"' Ibid., p. 66. | | lbid., p. 67.

Lord Justice Woolf, "Public Law-Private Law: Why the Divide?" 11986] P.L 220. 3 Lawson, op. cit., p. 67 4 Hugo Young, The Gliardiun. 31 October 198S, p. 19.



266 The Cambridg-e Law Journal [1987]

No doubt for the Continental lawyer the subjective right has always had at bottom the politico-legal flavour which is only now becoming more overt in some English case-law. However it must not be forgotten that the concept itself is primarily one belonging to private law in that the paradigm subjective rights, namely ownership and contract,ls are the central pillars of the civil codes rather than devices underpinning administrative law jurisprudertce; indeed there is some debate as to

whether there are such things as public law subjective rights. 16 In fact it would be a mistake to think that in questions of sovereignty the two areas of public and private law can always retain their sharp separation: for even in Roman law the view of the later emperors was omnia principis esse intelliganturl7 and it is possibly no exaggeration to say that modern positivist legal theory represents, from an historical position, the subjugation of private law by a publicist hegemony.18 One must not, therefore, be misled by the public/private divide of

Continental Europe. At the level of abstract legal theory, classification of law? and its role in the formulation and definition of rights, can be made to appear to have only a limited role, and this means that the political force of a legat right can easily become divorced from the positive context in which rights are actually defined and formulated. A legal right as a positive aspect of law and a legal right as a theoretical concept through which law can be viewed are often, historically and philosophically, two quite separate things.

It is this apparent separation of legal theory from the traditional positive legal source of rights and principles in other words the location of rights in a Grundnorm rather than in the Institutional system19-that provides the clue as to why, in the civilian systems, the subjective right of private law can transcend the Civil Codes to play an important political, or public law, role. Thus article 544 of the French Civil Code expressly limits the absolute sovereignty of a person over a thing, not by limiting the private law notion of dominium itself, but by locating a limitation of exercise within public law.20 And in England, also, the interrelationship of private and constitutional law is exceedingly complex-indeed constitutional lawyers in England, lf they wish to have a proper understanding of their subject, have to be learned in almost the whole of private, criminal and procedural law.21

ts Villey, Seize essais de philosophie du droit (Dalloz, Paris, 1969), pp 152ff; Ghestin & Goubeaux, op. cit., para. 206. Primarily because "la base principale des situations juridiques subjectives (ou droits subjecti&) est la volont6": Dijon, Le ssjet de droit (Larcier, l982), para. 94.

16 lonescu, op. cit., pp. 131-134. '7 C.7.37.3. 18 Roubier, Theorie gEnerale du droit (Sirey, Pans, 2e Fd., 1951), pp. 66 67, 79. t9 See generally, lonescu, Op. Cit., pp. 61-70; cf. Stein, "The Fate of the Institutional System,"

H"ldigungsbundel Paul van Wsrmelo (Pretoria, 1984), pp. 220ff. 20 Bergel, Le droit des biens (P.U.F., Paris, 1983), p. 30; cf. Hinsley, Sovereignty (Cambridge, 2nd

ed., 1986), p. 129. 21 Maitland, The Constitutional ffilistory of England (Cambrldge, reprint l965), pp. 53>539.



C.L J. " Le Droit Subjectif " and English Law 267

Yet care must be taken before any favourable comparisons are made between Continental and English politico-legal theory. In England the historical absence of an Institutional system whereby rights were founded upon legal relationships (iUS)22 means that far less emphasis has been accorded to the actual conceptual devices linking citizens with each other (obligations), with things (property) or with tl2e State (public law). And while in an empirical sense this may have had a number of advantages it may for example have made the law much more adaptable to changing notions of property23 -the point must be made at the outset of this article that it is extremely difficult to talk about le droitsubjectifoutside the rational structure inherited from the Corpus luris CivilLs.24 There is, quite simply, no firm a priori system in the common law by which the subjective right can be ratlonally defined.

II

It is, perhaps, this lack of a scholarship tradition founded upon the Corpus luris Civilis that distinguishes the common law attitude towards "rights" from the attitude on the Continent. It would of course, be quite wrong to say that the idea of "a right" has neither a history nor a conceptual place in the common law tradition, yet this history and conceptual role is in many ways outside the mainstream Continental tradition, in that not only is there more of a linguistic than philosophical bias but the whole political context in which "rights" are to be understood is a context formed by particular historical circumstances.25 The history of a right in English law is, on the whole, much less a question of political and legal philosophy and more an issue of language. The modern result of this difference of emphasis is that English judges use the term right "in the ordinary popular sense"26 without much regard to its rational analysis in the coneext of a politico-legal philosophy. Indeed in most situations where "right' is used by the judges they 'icould always have expressed themselves equally well without using the word at all."27 If however the notion of a right as a source in itself of legal authority is not part of the English tradition, the question arises as to whether it is possible to talk about 22 Stein, Legal Snstitutions (Buticrworths, 1984). pp. 129129; Samuel, "Roman Law and Lcgal

Theory," MElanges Villey tP.U.d'Aix-Marscillc, 1985), pp. 43 48. 23 Kahn-Frcund, in Rcnncr, TE2e Institutions of Private Law and tfteir Social Functions (R.K.P..

1949), p. 21; Fricdmann, Law in a Ckanging Sociery (Penguin. 2nd ed.. 1972) pp. 9v98. 24 Villey, La formarion de la pensee jurisdique znoderne (Montchreslicn. Paris. 4e ed.. l975),

pp. 526ff. 2S See e.g., Kiralfy, "Law and Righl in English Lcgal Hislory'' ( 1985) 6Journal of Legal flistory 49.

Things may now bc changing: sec Lloyd & Frecman, Introduction to Jurisprudenee (Stevcns. 5th ed., 1985), pp. 432ff.

26 Lawson, Op- Cif., p; 180 27 Lawson. supra.



The Cambridge Law Journal [1987]

268 the "subjective nght" at all in the common law tradition; and this question itself raises others. How is the question of the existence of the subjective right in English law to be tackled-from a rational, empirical, objective and/or subjective point of view?

This question is made all the more difficult by a controversy that has been troubling Continental writers at least since the end of the last war and very probably since an observation by Maine at the end of the last century.28 Did the Romans have the concept of the subjective right? This may seem an odd question to pose, given its seemingly greater relevance to the civilian rather than the common law tradition but the guestion is of philosophical importance to the common lawyer for two reasons. First it is of importance because one of the leading European figures in the debate who denies the concept to the Romans goes some way in supporting this denial by comparing the methods of the Roman classical jurists with those of the common lawyers.29 The Digest, it would seem, is closer to the spirit of Colie than to the methods of the Cartesian minded rationalists.30 Whether this reference to Coke is a particularly appropriate one in this context is open to question;3l but the point remains that the case-law method, with its emphasis on the factual circumstances, may well be of great relevance to the theoretical question of the sources of legal authority.32 The second reason why the question of the subjective right in Roman law is of importance to the common lawyer is because it raises the whole problem of the relationship between positive law and legal theory.33 What is the correct theoretical perspective to view the rules of any one legal system? This question as to the very relationship between a theory and the object of the theory-a question rather neglected by Lawson in his otherwise excellent contributionould, in the end, determine the whole issue ;3S to whether the "subjective right' exists in the common law. Accordingly, it is important at the outset of any investigation of English law via a Cuntinental concept to search for an acceptable premise which is capable of acting as a suitable starting point.

The guestion whether this starting point is to be found, for example, in law itself as a rational discipline or, say, in the empirical reality of English political life is obviously a premise question of the utmost relevance in determining whether the citizen can genuinely be seen as a source of individual sovereignty. And while theorists in

28 See Early Law snd Custom (1883), pp. 365-366. 29 Villey, Philosophie du droit: 11 (Dalloz, Pans, 1979), p. 159; Le droit et les droits de l'hornme

(P.U.F.t Paris, 1983), p. 66. 30 Villey, La formation (op. cil.), p. 700. 31 Cf. Kiralfy, op. Ctt., pp. 5960. 32 Villey, Phglosophie (op. cil.), pp. 15S159. 33 Pugliese, "'Re corporales,' res incorporales' e il problema del diritto soggettivo.' Sludi

Arangio-Raiz (Jovene, Naples, 1953), I11, pp. 225ff.



C.L.J. "Le Droit Subjectif " and English Law 269

particular public lawyers may well differ in the way this constitutional issue is resolved,34 it is perhaps worth remembering that English legal history has its own special role to play in this question of rights. As the present author has argued elsewhere,35 the common lawyers, as the final practical arbitrators of constitutional theory have never really been forced to state the actual constitutional position of the citizen (or subject?) vis-a-vis the political powers; and while they have admittedly, given from time to time strong indications as to the supremacy of Parliament this has not stopped them from using history36r indeed 4'rights"37-to conjure up a range of public law innovations. English legal history, as perceived by the judges, provides a premise in itself for reflecting upon whether the subjective right

* . _ . ,

exlsts ln < ng lsn aw. Yet whatever the premise difficulties that lie in the path of the

theoristsS there are several more technical problems which must faced. In fact, it is these technical problems that provide the main obstacle to answering the question whether the subjective right exists in English law. The first difficulty which must be faced arises out of the historical methodology of the English law system. If one accepts that the common law is interested in remedies rather than rights,38 it would nevertheless seem that there are two broad classes of remedies that establish an historical truth that the common law 'is the result of a continuing interplay between . . . the demand for a right and the complaint of a wrong"39; today this interplay is reflected in the law of torts, according to Professor Lawson, by the division of remedies into "interferenceX' and "damages" actions.4" And in the law of contract the right/wrong dichotomy might be said to be manifested in the distinction between debt and compensation claims.41 Consequently it would seem that a conclusion could be drawn that, although the common law does not appear to be fully aware of the subjective right as a technical and positive source of legal authority, it is aware of a difference between "rights" and '4objective legal situatlons."42 However the difficulty with this conclusion, when it comes to constructing a theory, is that it is a dichotomy rooted in a law of actions that is fundamentally uncommitted to any Institutional system in the

34 See Harlow & Rawlings, Law and Administration (Weidenfeld & Nicolson, 1984) pp. l-59. 3S "Governmental Liability: Law of EnglanGeneral and Conslitutional Questions," Report for

the U.K.N.C.C.L. Colloquium on Governmental Liability, Birmingham Univrsity September lg85.

36 See, e.g., Shaw v. D.P.P. (1962J A.C. 220. 37 See, e.g., Thomas v. N.U.M. 11986} Ch. 20. 38 David & Brierley, Major Legat Systems in the World Today (Stevensl 3rd ed., 1985), pp. 31S317. 39 Milsom, Alistorical Foundations of the Common Law (Bulterworths, 2nd ed., 1981), p. 243. 40 Lawson, Op- Cit., p- 181 41 Weir, "Complex Liabilities," Internationsl Encyclopedia of Comparotive Law, Vol. Xl, Chap. 12,

para. 8. 42 Roubier, DroAs subiectifs ef sitaations jurid ques (Dalloz, Paris, 1963), pp. 9ff., 73ff



[1987] 270 The Cambridge Law Journal

source of law sense.43 This is not to say that English law does not now conform to the Gaian scheme indeed the present author has argued elsewhere that Roman classification can be very relevant to an analytical understanding of common law cases.44 But common lawyers have never really seen the Institutional system as much more than a general classification scheme; they have never really approached legal relationships in terms of sources of law and/or power. It therefore becomes very easy for a court to make fundamental alterations to an individual's "right" by a seemingly minor alteration in the law of remedies45 and this, in turn, makes it very difficult to translate an "interference" action into the form of subJective sovereignty that the concept of the subjective right implies.

The doctrine of precedent is, of course, supposed to prohibit too much freedom of movement within the law of remedies and one might thus claim, with some theoretical justification, that the various kinds of actions are as fixed as any codified structure of rights. There is, however, the difficulty that the doctrine of precedent, as a real check on judicial creativity, is a matter of some controversy: for although there are many decisions that have clearly been dictated by existing case-law,46 there remain some cases where the binding nature of precedent might be said to be illusory. Such cases include not only those where, for example, differences of fact can seemingly be used as the foundation for distinction,47 but those where analogy can be rejected or accepted free from any focal point of liability such as the nature of the damage48 or the alloczltion of risk.49 ln reality the factual approach to liability often allows "rights" to appear and disappear like optical illusions and this is due partly to the possibility of locating the operation of precedent in different parts of the legal system; inflexibility in substantive law can be offset by flexibility in the law of actions.50 The doctrine of precedent can, then, go some way in allowing the theorist to construct a system of substantive rights in as much as precedent injects a certain predictability into the outcome of legal actionsSl; but the loose nature of the rational structure of English law that is, the ease with which one can move from one classification

43 Weir, op. cil., para. 67; Stein, Legal Institutions (op. cit.), p. 125. 44 Samuel, "Roman Law and Modern Capitalism" (1984) 4 L.S.185. 45 Weir, A Caseboolc on Tort (Sweet & Maxwell, 5th ed., 1983), p. 269. 46 MacCormick, Legal Reasoning and Legal 7Aeory (Oxford, 1978), pp. 1952. 47 Twining & Miers, Elow To Do Thgngs With Rules (Weidenfeld & Nicolson, 2nd ed., 1982),

pp. 284ff. 48 Sce, e.g, King v. Liverpool City Councii 11986] 1 W.L.R. 890, 902. 49 Rcad v. J. Lyor & Co. ll947] A.C. 156; cf. Brown & Garner, French Adminztrative bw

(Butterworths, 3rd ed., 1983), pp. 122-123. so See, e.g., Miller v. Jackson 11977? Q.23. 966; Ex p. IsZand Records Ltd. [1978J Ch. 122. 51 Hart, Essays in Jurisprudence and P}2ilosophy (Oxford, 1983) p. 28.



"Le Droit Subjectif " and English Law 271 C.L.J.

category to another52- allows the reasoner considerable liberty in the choice of a foundation upon which to fasten any decision.

One way of tackling this ease of movement might be to locate the concept of a right not in the rational structure of legal thought as such but at the empirical level of social ''interests.''S What kinds of interests will the judges habitually protect in family, property, obligations and public law? This empirical or interest approach has been particularly influential in the United States54 and has also acted as the basis of one Continental view that subjective rights do exist in the common law.55 An interest, then, might be "only another, though perhaps safer, way of looking at the same thing.'S6 All the same this interest approach to rights raises the second technical difficulty with regard to English law and the subjective right. Merely because the courts will predictably protect certain identifiable social interests, does this mean that the interest itself can be seen as a source of legal authority? Leaving aside the whole question of deriving a norm from a fact57 there is still the point that, whatever may have been the position in the nineteenth century regarding the law of contract and the law of property, the later twentieth century has seen a profound disillusionment with the idea that ownership and volonte are the rational focal points investing the various factual situations the clash of "interests" with their normative dimensions.S It has become less easy to see the individual human being as a focal point of legal authority. This is not to suggest that the courts have started to become unsympathetic to property owners or commercial business concerns59ne can in fact still find cases where individual responsibility is emphasised.i' But the identification of new social interests in this century has gone some way in raising a question mark over the effectiveness of promise, if not ownership, as a source of legal authority in itself and the courts often seem to be searching for more contextual reasons for upholding commercial contracts.6i In other words, in many commercial cases the judges are looking less and less to an abstract bond between person-and-person or person-and-thing as the foundation of a source of legal authority and more to economic

S2 Weir, i*Compicx Liabilitics" (op. cit..). para. 4. S3 Jhering, Geist des romischen Rechls: 111 (1865). pp. 332ff; Villey, Seize essais (op. Cif.),

pp. 20S220. 54 Lloyd & Frecman, op. cil., pp. S66ff. ss IOneScu, op- cil.. pp. 141-149

56 Lawson, op. clt., p. 183- S7 Cf. Bathffoi, ProblEmes de base de philosophie du droit (L.G.D.J., Paris, 1979), pp. 178ff. SR Atiyah, Promises, Morals and Law (Oxford, 1981). pp. W28 sg See, e.g., Palaline Graphic Arts Co. Ltd. v. Liverpool City Council 119861 Q.B. 335, C.A.;

Griffath, The PoJXtics of the Judiciary (Foniana, 3rd cd., 1985). pp. 202-203. 60 See e.g., Nattonal Westminster Bank plc v. Morgon 119851 A.C. 686, H.L. 6} See, e.g., N.Z. Shipping Co. Lld. v. A. M. Sotterthwaite & Co. 1197SI A.C. 154, P.C.; Atiyah, The

Rise and Fall of Freedom of Contract (Oxford, 1979), pp. 716ff.



272 The Cambridge Law Jollrnal 1l987]

factors which in themselves have very little to do with a self-contained jurisprudential theory.62 And the problem this approach presents with regard to the claim that interests are just empirical subjective rights is that each definition tends to contradict the other

This contradiction can be illustrated by looking at the source of authority of the legal rules applied in a contract problem. Either a contract rule gets its legal force from some objective characteristic(s) of certain types of transactions, in which case one is in the realm of i'objective" law (le droit objectif ),63 or a contract gets its force from the volonte "iuris vinculum" flowing between the subjects, ln which case it is legitimate to see the subject as the source of the legal rule(s) (le droit subjectif ). To argue that some empirical foundation acts as the source of legal authority for the imposition of this or that rule which is then expressed in the language of a "subjective right" is seriously to misunderstand the independent rational structure underlying the history of the subjective right; one is crossing the divide between objective and subjective law-between obligatio (and/or actio) and izAS as the later civilians would have seen it-at a place where there is no bridge. The whole follndation of a subjective right, historically speaking at least, is the power-advantage relationship deemed to exist in the rational world of legal conceptualisation; it is not a power- advantage relationship described by particular sets of facts that happen to confer a material benefit on one particular person or class of persons.64 A legal system may, of course, operate via sets of facts-and it is highly likely that this was the approach of systems that emphasised forms, rather than causes, of actions. But to claim that "rights" are the same as "interests" is like claiming that ownership is the same as possession (or that the Grundnorm is the same as the Rule of Recognition).65 And thus merely because a person is able to enforce an empirical interest in a court it does not follow that such a person has a subjective right: for the history of ius and interest is the history of norm and fact.66

It is this contradiction whlch lies at the heart of Villey's argument that the classical jurists did not know of the subjective right.67 The Roman law of contract, as a glance at the Digest will show,68 was not founded upon volonte but upon types of transactions; yet when the Law of Actions and the Law of Things became more strictly separated in the post-classical period the source of law aspect became more 62 Jacquemin & Schrans, Le droit Sconomique (P.U.F., Pans, 3rd ed., 1982), p. 1()6. 63 Villey, Le droit romain (P.U.F;., Paris, 7e ecl., 1979), pp. 99 108. 64 But cf. MacCormick, Legal Right and Socis! Democracy (Oxford, }982), pp. 15Fl66. 6S Cf. MacCormick in Lloyd & Freeman, op cit., p 461. 66 s3atiffol, op. cit., pp. 303, 313. The distinctic)n between "ius" and "interest" may well have been

recognised by the Romans: sec, e.g., D1.6.2; 47.7.8pr; 47.8.13, 23. 67 Villey, Seize essaz (op. ct.), pp. 212ff. 68 See D. 19.5.3 4.



C.L.J. "Le Droit Subjectif " and English Law 273

complex. If an action was simply a method of enforcing some ius,69

what gave the ius its authoritative force? In answering this question the old civil lawyers found themselves pushed into the world of legal rationalisation-in effect into an Institutional system divorced from Actions -- and the problem then became one of deciding what the plaintiff had to show in court in order to support his claim. The

common lawyers (like the classical Roman jurists), '° on the other hand, never really got beyond the stage of objectively presenting facts which, when categorised, themselves gave rise to a legal remedy71; and in jurisprudential terms this effectively meant and means that they have never arrived, save perhaps occasionally during the highly individualistic atmosphere of the nineteenth century,72 at the subjective view of law. Just as it is misleading to see Roman classical law through a subjective rights structure, so it is misleading to view the common law through such a concept. The problem, therefore, in arguing that the common law recognises, via the notion of an "interest," the concept of a "subjective right" is that one is applying an epistemologlcal framework that is, historically speaking, quite inappropriate; the common law has never rationally located any legal source within the citizen him- or herself.

What the common law has done is to accord to subjects strong remedies to protect certain interests. But the "actions," rather than "rights," aspect of these remedies is reflected in the fact that there is no differentiation between ius in rem and ius in personam when it comes to compensation claims73: actions for compensation arising out of wrongs and actions to vindicate interferences with '4rights" are both classified, as far as a civil lawyer looking at the common law is concerned, under "obligations." The owner depnved of his or her chattel sues in the tort of conversion and/or trespass74; the landowner disturbed by an intrusion sues in the tort of trespass or the tort of nuisance75; and the citizen suffering special property damage as a result of reasonable and lawful (in the public law sense of these terms) governmental action recovers conzpensation only via the tort of negligence.76 This classification "confusion" (to a civil lawyer) leads to a third difficulty with regard to the subjective right in English law. There has been no serious attempt to systematise and to categorise the nature of rights within a constitutional framework which pays regard to

69 See D.44.7.51. 70 Stein, "Roman and Comrnon Law" (1979) 59 Boston Univ.L.R. 437. 71 Lelang V. Cooper 11965J 1 Q.B. 232, 242-243. 72 See, e.g., Printing und Numerical Regisirvwling Co. v. Sampson ( 1875) L. R. 19 Eq. 462, 465; but cf.

Reynolds' observation: (1986) 102 L.Q.R. 628, 633. 73 Weir, Casebook (op. cit.), pp. 401 406. 74 Wilson v. Lombank LJd. [19631 1 W.L.R. 1294; Torts (Interference with Goods) Act 1977t s. l . 7S Weir casebooks PP 34>344 76 Rigby v. Cfiief Constable of Northamptonshire [19851 1 W.L.R.1242.



274 The Cambridge Law Journa! [1987]

the whole relationship between dominium, obligatio and imperium. How can one thus even begin to think of a rationally structured world capable of supporting the (conceptual) notion of a subjective right?

III

This lack of a basic structure is, it must be said, often cited as one of the great strengths of the common law system.77 Yet there is a problem in that when the courts wish to develop aspects of the law, as Lawson himself has shown with respect to the law of tort, "they might find themselves hampered by the lack of a general theory of rights or interests, which might help to establish broader concepts under which new sets of facts can be subsumed.*'78 Put another way, one might say that the English judge has never really appreciated the teleological importance of classification, not just as a starting point for a general theory of rights, but as a means of legal development in itself.79 In civilian systems on the other hand, the appreciation of the teleological role of the legal divisions is built not just into the codes of substantive law but into the codes of procedure as well.80 The Institutional system, as adapted by the Natural Lawyers,81 is the rational structure that supports the subjective right at every stage of the legal process.

There are, of course, sound historical reasons for this lack of a formal classification structure to underpin a system of rights. The forms of action did not arrange legal issues around an abstract Institutional system, and the remedial emphasis on debt and damages in the common law, and on injunction and specific performance in Chancery, led judges to think in a very different way than on the University-influenced Continent.82 One should not be surprised7 therefore, to finz3 that the protectic)n of interests has been viewed in a rather more paternal way in England than in the systems that had more formalised legal relations. The typical English approach to legal development was, and is, to concentrate on the type of complaint in issue and measure this against a "duty" structure which gains most of its force from factual analogy83; and even if the extension of liability involves a move from one area of law to another from say contract to tort as in the Hedley Byrne case84_the nature of the obligation, a factor of importance in a rights-structured system, is, in the end, of

" See, e.g., Lawson, Ttte Rstional Strength of Engfish Law (Stevens, 1951), pp. 143-147. B Lawson, "Das subjektive Recht" (op cit. ), p. 183.

79 Cf. Jones, Historical Introdaction to lhe Theory of Law (Oxford, 1940), pp. 179176. 9 See, e.g., French New Code of Civil Procedure, Art 12. 8} Stein, "The Fate of the Institutional System" (op cit), pp. 218ff. 82 David & Brierley, op. cit. pp. 321-323. 83 See, e.g., Dutton v. Bognor Regis U.D.C. 11972] 1 Q.B. 373

[1964] A.C. 465.



"Le Droit Subjectif ' and English Law 275 C.L.J.

little importance.85 The question is always whether the defendant was under a duty to the plaintiff in respect of the damage, and the remedyJ86 in issue. With the interference torts the question of damage is, as we have seen7 replaced by the idea of an "interference with a right"; but care must be taken with regard to the meaning of "right" in this context. No doubt it has a constitutional flavour in torts such as trespass, especially when public officials are the alleged trespassers?87 because from its earliest days the idea that trespass involved the King's Peace meant that the wnt had a public law function88; yet there are many interference torts libel probably being a good example7 where the '4right' might be said to be used only to describe presumed damage. And even in the equitable remedy cases where say, an injunction is granted without there being any actual wrong on behalf of the defendant, the concept of a "right often seems more applicable to the protectisn of the plaintiff from some future wrong (including unjustified enrichment of another) than to the court giving expression to the notion of an active bond between person and thing.89 Accordingly when an English court grants compensation an injunction or some other remedy to protect a "rights' it is not necessarily trying to recognise a form of individual sovereignty as such; it is either just refusing to enter into the compIexities of trying to measure the damage in terms of money90 or just granting its services to prevent the plaintiff suffering any injury to a recognised isproperty" nterest.9l

All the same there is no escaping the fact that the so-called stnct liability torts (together with a range of intellectual and equitable property cases) come much closer to recognising 'srights" in the Continental sense of the term than is true of the duty of care torts. The tort of libel is in practice, almost as iiabsolute' as the Roman actio in

rem.92 And more generally, one might argue that all English law is about ';property8' in the sense that it thinks in terms, not of in rem and in personam bonds but of a general relationship between citizens (subject) and interest (object)-protection being just a matter of degree upon the strength of the interest in issue.93 Thus the difference

sS Sees e.g., Midland Bank rr"St Co. Ltd. v. Hetl, Stubbs tS Kemp ll9791 Ch. 3S, 416. Bb See, e.g., CJti<ConstabZe csf Kent v. V. 119831 Q.B 34, 43, 46 where it is the plaintiffs duty which

gives rise to his rigkt to an injunction. 87 See, e.g., Morrzs v. Beardmore {19801 A.C. M6 sR David & Brierley, op. cat., p. 321.

89 This idea is latent in the expression 'cquily acts in personam'h English legal thought does not operale on the Roman idea of suing a thing (ct. Gaius 4.1S17 )

S Cf. Weirf Casebookt p. 436. 91 See generally Heydon, Gummow & Austint Cases and Mowterials on Equily (Butterworthst

Australia, 1975) pp. 2046. 92 Cf We1r, Casebook, pp. 443 444. And so is an area like that of eopynght With regard to the io

tnrem?see D.6.1 9n13. 93 See, e.g.t Heydon, Gummow & Austin1 supra.



[19871 276 The Cambridge Law Journal

between ownership and contract is, to an English court, only a question of "property" interests protected by remedies of diffenng intensity as measured by the competing claims of the various parties involved.94 If interests are translated into objects capable of supporting a bond with a legal subject it becomes possible to bypass the Institutional structure in that the common law effectively becomes just a law of "rights"; and the "is" and "ought" difficulty, discussed earlier, is avoided by the notion that a11 citizens have a wide patrimony (rights), the only question being whether, for policy reasonss the courts are able to offer protection .lt the level of intensity argued for. Thus, for example, it could be said that all "expectation" interests are recognised by English law as being "property" capable in theory of being protected; whether they will be protected depends upon a number of policy factors such as the "floodgates" argument, commercial practicability95 or simply prevailing legal values with regard to the issuing of remedies.96 In such a legal environment as this, legal development will not be a question of rationalisation at the level of legal categories, but a question of types of property types of "right"-towards which the courts (or the legislature), always having made the assumption that such "rights" exist as empirical "property," will formally feel able to extend their protection.97

If this "property" analysis does represent the conceptual stance of the common law then the question arises as to the relevance of the i'subjective right" to this structure. As a means of direct legal sovereignty over a specific object "le droit de jouir et disposer . . . de la maniere la plus absolue," to use the ownership language of the French Civil Code98-it would seem to have no application simply because any English concept of "la chose" would be far too wide to act as an object of sovereignty. The wider the notion of "property," in the patrimonial sense of the term, the less intense the effectiveness of sovereignty in the politico-legal sense of the term.99 However if the idea of a direct power/advantage relationship growing out of a bond between subject and specific object is inappropriate, the idea of an indirect sovereignty growing out of a general bond between subject and "liberty" (object) is by no means so impractical. Ownership may not be defined directly by the common law but there is no doubti-ng that the owner is 'sat liberty" to do what he, she or it wishes with the property just on the basis that the law will refuse to intervene into this

94 See, e.g, Ingram v. Littk 11961l 1 Q.B. 31. gs Leigh & Sillivan Ltd. v. Aliakmon Sfxippgng Co. Ltd. [19863 A.C. 785, 81S817. 96 Weir, Casebook, pp. F5. 97 See, e.g., Ex p. Island Recordu Lld. 119781 Ch. 122; Tate c5E Lyk Food and Distribution Ltd. v. G.L.C. 1198312A.C. 509. 98 Art. 544. 99 Friedmann, op. cil., pp. 9s98.



C.L.J. "Le Droit Subjectif" and English Law 277

area.1 If anything, then, it is the "liberty" that becomes the vehicle for

the subjective right in English law. Yet the problem with this analysis when it comes to making a closer comparison with the Continental

subjective right is that there is not just a certain difficulty in turning

"liberty" into a "thing" capable of being vindicated in the actio in rem

sense (although the Renaissance Spanish theorists certainly went far in

achieving this and their efforts were an important step in the whole

development of the subjective right)2; there is also a difficulty with

regard to the individual as a source of legal authority. The citizen may well enjoy a whole range of liberties, in turn giving rise to some

effective legal "rights" in the remedial description of this term, but

these rights will in the end be entirely dependent upon the "objective" law (in the Continental sense of le droit objectif) continuing to

recognise the various liberties.3 Thus the "right to demonstrate" on

the highway will not be a subjective right in the sense that it is some

power/advantage which grows out of a bond between the subject and

the specific object of demonstrating on the highway; it will be a

"subjective right" only in as much as the subject has the liberty to act in

this way. And such a "liberty" can soon lose its right-like character

because it is a liberty that can be very easily destroyed, not just at the

stroke of the legislative pen giving, say, more procedural powers to the

authorities to control demonstrations, but by seemingly minor changes in the law of actions apparently increasing the "liberties" (or

"rights"?) of other highway users.4 Thus in England it is not so much

the "subjective right" that represents the point where political power coalesces with legal authority: it is the somewhat more nebulous

notion of civil liberties.

IV

It would doubtless be naive to think that citizens living under civilian

legal systems enjoy a stronger political position vis-a-vis the state than

citizens under the common law.5 In fact it might well be true to say that

in the common law system(s) of the United States, if not in England, the concept of civil liberties as a fundamental right is a much more

powerful political and legal reality than in any other Western system.6 Yet the lack of a rationalised structure of legal relations built into the

Dolitico-leeal svstem can become increasinelv noticeable in situations

See, e.g., Moorgate Mercantile Co. Ltd. v. Twitchings [1977] A.C. 890. Tuck, Natural Rights Theories (Cambridge, 1979), pp. 49ff. Cf. D.1.5.4pr. Ullmann, The Individual and Society in the Middle Ages (Methuen, 1967), p. 74. See, e.g., Hubbard v. Pitt [1976] Q.B. 142; Thomas v. N. U.M. [1986] Ch. 20. But cf. Turpin, British Government and the Constitution (Wiedenfeld & Nicholson, 1985), p. 292; Zellick, "Government Beyond Law" (1985) P.L.283. But then America does have a written Constitution and Bill of Rights; cf. Simmonds, Central Issues in Jurisprudence (Sweet & Maxwell, 1986), p. 132.



278 The Cambridge Law Journal [1987]

where the absence of a written constitution finds itself combined with acute political controversy. Ought workers to have a (subjective) right to strike, or to picket, in conditions where both legislation and the law of actions seem effectively to be denying the liberty to strike or to picket?7 Or take another, somewhat different, area of controversy. Ought a public body to be at liberty to use its land its rights of property as dominus in any way and for any purposes within the normal liberties of private law, it wishes? In civilian systems the droit (dominium) and pouvoir (imperium) dichtomy at least allows for an accurate and immediately identifiable politico-legal analysis and this, in turn, might provide a basis for an informed political debate at both the popular and the professional levels.8 The point to be made is that when it comes to England there is a further difficulty with regard to the application of the concept of the subjective right to the legal system. What is the foundation or source of legal powerof sovereignty - that, if the rhetoric of politicians is to be believed,9 lies at the heart of the subject-liberty structure?

This question may seem either unduly simplistic or unduly academic to those convinced that the foundation of rights lies in the granting and enforceability of legal remedies deriving their authority from Parliament.l° But there are areas of English law where the problem of a rational foundation of politico-legal power beyond the law of remedies is becoming apparent. For example despite an apparent (historical) absence of any formal division in England between dominium and imperium,l l a local authority or public corporation cannot use the land it owns in the same way as a private landlord12; and the idea, expressed in the case law, that all that is not illegal is legall3 would appear to be under some strain when it is the State, or one of its organs, that is the plaintiff. 14 Thus it may be that the scene is being set for some serious consideration to be given in administrative law to the sources o-f politico-legal authority. Yet even if this constitutional rights consideration does not openly take place in the judgments, it is nevertheless becoming increasingly clear that the traditional thought patterns of English law are proving less and less

? For an interesting journalistic insight into this whole question (and the problem of rights more generally), see Torode, The Cuardian, 7 January 1986, p. 21. (Torode was a member of the Younger Committee on Privacy.)

5 Ct. Turpin, op. cit., pp. 406 407, 430 432, 46tW470. 9 See, e.g., Shirley Williams & Des 51Vilson, The Guardian 11 August 1986, p. 18.

'° For a general discussion, see Simmonds, op. cit., pp. 141-151. Weir, "The Common Law System," Internarional EncycZopedia of Comparative Law, Vol. II, Chap. 2, Part IIl, para. 115.

12 Cinnamond v. British Airports Authority 119801 1 W.L.R. 582; Wheeler v. Leicester City Council [1985] A.C. 1054.

13 Malone v. Metropolitan Police Commissioner [1979] Ch. 344. 14 See, e.g., Tkomas v. N. U.M. 119&61 Ch. 20; and The Cuardian and The Observer injunction case:

The Guardian 26 July 1986, p. 4.




convincing. The fact that a public body cannot behave in the same way as a private landlord when it comes to the rights of ownership impliedly means that land law and the law of tort (trespass, nuisance etc.) cannot

now provide all of the answers to questions concerning rights as

instruments of advantage and power. It would appear, instead, that

despite Dicey there is now a public and a private law, in turn giving rise

to public and private rights.15 The temptation at this point is to arrive at the conclusion that this

kind of classification issue will force the courts into thinking more and

more along Continental lines. Indeed it would seem that the judges have already gone far in giving a Continental pattern to English administrative law by openly adopting not just the public and private

dichotomy16 but the Italian distinction between "rights" and

"legitimate interests" or "expectations."17 But the position must not

be exaggerated. If the courts have a notion ofthe "legitimate interest"

or "expectation" in public law there remains something of a problem when it comes to the interpretation of a "right"18; and the forms of

action historical tradition ofthe common law will doubtless continue to

frustrate any clear logical scheme for the public/private divide.19

Nevertheless if the political controversy surrounding governmental actions with regard to local authorities, education, social security and

the public service unions continues to attract litigation at the rate that it

has been doing over the past few years,20 the courts are probably going to be propelled in the direction of a fairly major theoretical

rationalisation at the substantive level, whatever the complexities of

the historical legacy of English "public" law.21 And one reason why the courts might be propelled in this direction is because, as Colin

Turpin observes,22 there is today "markedly less confidence in British

government than formerly" which is raising a serious problem about "the legitimacy attaching to the constitutional order." In turn the

effect that this "general feeling of dissatisfaction with the system of

government"23 could have is to force a choice, which would at some

point have to be reflected in public law, between either "the restraints

of a bill of rights" or "reliance upon coercion." What is interesting here is that this dichotomy between "rights" and "coercion" is itself

Bourgoin S.A. v. Minister of Agriciuulture,Fisheries and Food (1986] Q.B. 716, 759ff, 787ff. O'Reilly v. Mackman [1983] 2 A.C. 237. Council for Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374; Certoma, The Italian Legal System (Butterworths, 1985), pp. 20-24. See Bourgoin, supra. See, e.g., Wandsworth L.B.C. v. Winder (1985] A.C. 461. Hugo Young, The Guardian 31 October 1985, p. 19; Norton-Taylor, The Guardian 14 January 1986, p. 5. Rubin & Sugarman, Law, Economy & Society (Professional Books, 1984), pp. 74ff. Turpin, op. cit., p. 289. Ibid., p. 290, quoting Research Paper 7, Devolution and Other Aspects of Government: An Attitudes Survey (HMSO, 1973), p. 10.



The Cambridge Law Journal [1987] 280 helping to set tl}e scene for a civilian - indeed Roman law24-analysis in that at the level of economic policy there is now being observed ;'a useful distinction between the coercive power or the resource of force, which [Professor Daintith] terms imperium, and the power to employ the government's material resources of wealth [which] he terms dominium."25 ln effect, therefore, it may be that the question of individual sovereignty (dominium) vis-a-vis state power (imperium) will find itself thrust upon the common law courts not as a result of administrative law activity by the i'disadvantaged or vulnerable groups such as immigrant communities, the unemployed and those whose jobs are at risk,"26 but by the more dominant community which in reality has a vested interest in keeping at bay the bureaucratic imperialism which tends to be 'iso opposed to the private law spirit and habits of the commercial world."27

Such concern for private rights by the business community will no doubt be treated with a great deal of scepticism by the pressure groups more concerned with issues of personal (as opposed to corporate) civil liberties and social justice. But it must not be forgotten that the history of Western law and thus the history of private rights is so closely intertwined with the history of property and commerce as to be virtually indistinguishable from it.28 Thus the whole notion of domanium is probably so inextricably tied up with material resources and wealth that the only effective way the imperial pretension omnia principia esse intelligantur- together with its philosophy of state voluntarisman effectively be resisted is by the blunt recognition that true individual sovereignty owes its very ex}stence to private property rights.29 In other words the Marxist view that all individual rights are, in the end, founded upon property relations30 seems to be true as far as history is concerned. From the political viewpoint, such property relations certainly give rise to problems in that private ownership of the means of production creates its own kind of imperium within the state3l; yet even if history does teach that 4'the institution of [priYate]

property leads automatically to an organisation similar to the state"32 it must not be forgotten that history also seems to show that attempts to suppress or control this power through a formal public law structure

24 Jones, Op. Cit., pp. 159156. 2S Turpin, Op. Ctt., p. 291 quoting from Daintith, 4'Legal Analysis of Economic Policy" (1982) 9

Journal of Law and Society 191. 26 Turptn, p. 290 27 Champaud, Le droir des affaires (P.U.F:., P3fis, 2e (d., 1984)t P- 46 22 Ibid., pp. 6ff; Jaquemin & Schrans, op. cit., pp. 1 lff. And see also LEvy, Histoire de Za proprihS

(P.U.F., Paris, 1972); Macpherson, The Politicaf Theory of Possessive Individuatism (Oxford, 19623.

29 Batiffol, Problenles (op. cit.), p. 46. 30 Eorsi, Comparative Civi! (Private) Law (Budstpest, 1979), pp. 68, 283. 31 Renner, The ItisfifUtiOt15 of Private Law and Their Social Functions (R.K.P., 1949), p. 107. 32 ,bid.




only lead to a corporate political state in which the subjective right is viewed with much distrust.33 The whole 4uestion of legal rights seems doomed by history to remain trapped in the stark political dichotomy of authoritarian corporatism and unregulated individualism.

The problem facing the common lawyer in a politically charged atmosphere is, then, not just a problem of formal rationalisation regarding public and private law and subjective rights and legitimate expectations. There is inherent in the individual conceptual building blocks of Roman law (and Professor Daintith's analysis shows how alive is the influence of the Corpus luris Civilis, even for the English) a powerful potential for political philosophy. And however much the English courts may wish to distance legal reasoning from political consequence,34 the mere fact of using Continental concepts will in itself amount to constitutional theorising. Of course one can, philosophically, take the question back several historical stages in order to make the point that there is no indisputable reason why the existence of individual rights should be so dependent upon a private law which seems unable to secure individual sovereignty except at the cost of inequality and private imperium. But the political philosophies of the social contractarians were themselves forged out of the vocabulary and concepts of the Corpus luris,35 and thus legal and political philosophy themselves seem caught in a cruel embrace by the past. In fact even Marxism, with its emphasis on the state, seems on occasions just as trapped by the politico-legal vocabulary of Rom;n law.36 The point to be stressed, therefore, is that once the courts have openly accepted "public law" as a formal reasoning category there is little point in continuing the pretence that the reasoning within this category, particularly when it utilises traditional civilian concepts, has little or nothing to do with the constitutional position of the citizen. For public law is simply political theory expressed through the language and practices of juridical institutions.37

None of this is to suggest that the courts are in anything but a very difficult position when it comes to reviewing government action. Historically constitutional theorising never really needed openly to take place in the courts possibly because feudalism once provided a sufficient social bulwark against any absolutist and theoretic pretentions of the monarch38-and thus 'icivil liberties" acted, in the 33 See, e.g., Hoehn, "Le droit subjectif et le Illmc Reich," ttudes Lambert (L.G.D.J., 1938), 1l1,

240ff. And see Cotta, Le corporatisme (P.U.F., Paris, 1984), p. 75. 34 See, e.g, Criffith, op. cit., p. 122 3S See, e.g., Villey, Laformation (op. cit.), pp. 647 648. 36 Brimo, Les grands courants de la philosophie du droit et de l'#tur (Pedone, Paris, 3e Fd., 1978),

p. 8. 37 Ullmann, "Public Law as an Instrument of Government," Dirirto e porere nello storia earopeu

(Olschki, i982), 1, 37ff. 38 Ullmann, Law and Politics in rhe Middle Ages (Sources of History, 1975), pp. 218ff; Medieval

Political Thoughr (Penguin, 1975), pp. 146ff.



282 The Cambridge Law Journal [1987]

formative days of our modern political system (if not until quite

recently), as an adequate "political" theory upon which the judiciary could found their legal reasoning.39 What appealed to the legal mind

right from medieval days was the factual administrative minutiae of

government in practice40; and even today the theories of Hobbes and

Locke have little or no place in judicial rationalisation, legal history or

legal education.41 This factual approach to the place of the individual

in society has no doubt conferred a number of political advantages on

those within common law jurisdictions42; yet it would be wrong to

exaggerate today these benefits. Whatever may have been true of the

past, the position now is that Britain has one of the most centralised

states in Europe43 and this means that many ofthe great constitutional

advantages which were secured as a result of the common law's

formulation within the ascending political empiricism of feudalism44

have been lost.45 The "political culture of democratic Britain assigns to

ordinary people the role, not of citizens, but of subjects."46 This lack of "citizenship" has serious consequences for the issue of whether the

"subjective right" exists in the common law system simply because

"[i]t goes beyond human ingenuity to devise a scheme of the subject's

rights within the descending theme and to devise a protection of the

subject's rights; for within the descending theme of government, the

subject, precisely because he [is] a subject, [has] no other rights than

those which were conferred upon him."47 And, as we have already

suggested, any "rights" conferred can "be changed by one stroke of the pen by the theocratic monarch"48 who uses law as a vehicle for

conveying his "commands."49

The courts are, it must be said, probably doing their best to prevent British public law from becoming the equivalent ofthe iuspublicum of classical Roman law: thus the notion of "abuse of power" has recently established itself50 as a central principle within an area that in Rome was just one of "administrative discretion."51 The problem, however,

39 Ullmann, Law and Politics (supra), pp. 21&-219; Principles of Government and Politics in the Middle Ages (Methuen, 2nd ed., 1966), pp. 170-173.

40 Milsom, op. cit., pp. 56-57. 41 The point can be tested by looking at the amount of space devoted to these two theorists in English

legal history or jurisprudence textbooks. Cf Villey, La formation (op. cit.), pp. 635ff. 42 Trespass can still be a useful "right1' against the state, especially where real property is concerned: see, e.g., Morris v. Beardmore [1981] A.C. 446.

43 Turpin, op. cit.,p. 292. 44 Ullmann, Individual and Society (op. cit.), pp. 96-97, 150. 45 Atiyah, The Rise and Fall (op. cit.), p. 342. 46 Turpin, op. cit., p. 407 quoting McKenzie & Silver, Angels in Marble: Working Class

Conservatives in Urban England (1968), p. 251. 47 Ullmann, Individual and Society (op. cit.), p. 74. 48 Ibid. 49 Atiyah, supra. 50 See, e.g., Reg. v., I.R.C, exp. Preston [1985] A.C. 835, 852, 864ff.; but cf. Bradley [1986] P.L.

508. 51 Jones, op. cit., p. 142.




with "abuse of power" is that it is really just an aspect of the wider

principle of abuse of rights and this in itself implies that all rights are in

the state's, rather than the subject's, hands.52 The conclusion to be

drawn from all this is that politically and constitutionally there is

neither an empirical foundation left over from the past save perhaps

dominium in its narrow property sense (the granting of sovereignty via

the sale of council houses?) nor any rational foundation from

political theory upon which any notion of the subjective right can be

built. The common law, in other words, is now isolated not just from the

European legal and political scholarship which for many centuries has

been built upon the Corpus luris Civilis: it is now also isolated from its

own past

V

In some ways it is not just the common law that has suffered a

dislocation in its historical lineage: the whole of legal scholarship has

been profoundly affected by the arrival of utilitarianism. And the

subsequent developments in the field of sociological jurisprudence

have transformed our epistemological understanding of law and legal

concepts. It would be wrong, of course, to say that previous

generations of jurists had no empirical notions of law.53 But the rise of

the age of science focused attention much more acutely on the factual

realities of the world and this, in turn, led to the idea that all scientific

principles, even legal ones like the subjective right, could be reduced

to an apparently simple factual residue. At this empirical level it is

much easier to conclude that the subjective right has a place and a

relevance in the common law because, as with all the systems, English

law is in reality only about the balancing of interests.54 This replacement of a transcendental term like "right'? with a

factual reality such as "interest" has doubtless given enormous insights

into the role and function of law in society. However, this present

article has tried to show that the replacement is not quite as simple as

perhaps Professor Lawson appears to have suggested.55 In the first

place there is the civilian history of a right itself: is this history now to

be completely subsumed by the empirical outlook of the twentieth

century; or could it not be said that the history of a right as a rational

concept has a constitutional legitimacy that cannot be reduced to any

S2 See, e.g., lhe reported st31emenl of Sir John Donaldson: "Though there can be no doubt about lhe

public interest in ensuring thal allegations of wrongdoing by the Security Service, MI5, should be

investigated, thal is very differenl from arguing that they should be exposed in the press": Th<>

Cuardian 26 July 1986. p. 4. S3 Baliffol, Prob{#mes (op. cit.), p. 296; La philosop/ie du droit (P.U.F., Se ed., 1975), pp. 31-54.

S4 lonescu, Op. Cit., p. 147; Jolowict, Lectures on Jlwrisprudence (Athlone, 1963), pp. 167-168,

179179. S5 l-awson, "Dus subjektive Recht," op. cil., p. 183.



The Cambridge Law Journal [1987] 284

simple factual element? No doubt the empirical positivist can produce a suitably realist explanation capable of subsuming.all sovereignty to state voluntarism founded, directly or indirectly, upon naked force; yet for many this remains an incomplete picture of the constitutional position of the individual in Western society.56 And if the individual is to be a citizen rather than a subject it would seem that the rational proposition that there exists a iuris vinculum between individual and the state (or its figure-head)ven if this iuris vinculum cannot now be seen as a species of contract57-must at some point be recognised, otherwise much of the history of Western politico-legal thought will be rendered worthless. Probably the real issue is one of choice. By acquiescing to the Austinian theories, first thrown up by Byzantine theocracy, whereby not only does the will of the emperor (i.e. state) have force of law but dominium itself is subjected to this will,58 the political, or more probably the ideo}ogical, choice is being made to locate all power in modern Britain in Parliament.59 Yet is must be remembered that this is only a choice. If constitutions gain much of their rational force from the history of politico-legal thought there is in this self-same history plenty of material upon which sovereignty can be redistributed in the form of rights to the individual.60 The subjective right as a means of locating some political power at the individual level remains too powerful a rational baby to be thrown out with the Begriffsjurisprudenze bathwater.

This is not to criticise the notion of an "interest" in the world of social science or jurisprudence. ln fact it is a concept that can be particularly helpful in understanding the remedy-oriented common law and, moreover, it is a concept that seems now to have an important rational role in civilian legal theory itself.6l The point to be stressed is that the concept of an interest operates on quite a different plane from the one inhabited by the subjective right. An interest, as far as the legal theorist is concerned, is either an empirical concept, meaning something to be deduced from tlle Law of Actions,62 or a rational concept, expressing a form of advantage that is constitutionally something inferior to a subjective right63; in neither case is an interest a subjective right. Accordingly in systems where the terms "right" and "interest" are used interchangeably, as for example in Britain,64 it

s6 Moreovcr from an epistemological point ol view thc positivist-voluntarist position runs into problems: Atias, A:pistEmologie jundEque (P.U.F., Paris, 1985), pp. 3936.

57 Jolowict, Lectures (op. cit.), pp. 92-93; Gough, The Sociaf Contract (Oxford, 2nd ed., 2957), pp. 18S206.

S8 Roubier, ThEorie generale du droit (op. cit.), p. 79; Batiffol, ProblEmes (op. cit.), pp. 42-5V. sg Bobbio, "Sur le positivismc juridique ," MElanges Roubier ( 1961), I, 53 e 59ff; Atias, Op. Cit., p. 66.

60 Finnis, Natural Law nnd Naturul Rights (Oxford, 1980), pp. 19S226. 61 Certoma, op. cit., pp. 22-23. 62 See, e.g., D.1.6.2; 47.23.3.1; Roubier, Droitssnbjectifs (op. cit.), pp. 6869.

63 Certorna, op cit., p. 23. 64 Samuel (1984) 100 L.Q.R. 537, 539



C.L.J. "Le Droit Subjectif "

and English Law 285

would seem to follow that the concept of the subjective right, as the

term is understood in the context of civilian historical jurisprudence, has no place.

This rationalisation at the metaphysical level is not, it must be said,

just a question of a single historico-legal development. The modern

subjective right is the product of several distinct lines of thought. In

particular it results from the utilisation of, and speculation upon, a

philosophically respectable legal bond (ius)65 that had roots, on the

one hand, in a range of positive and effective legal devices (dominium, iura in re aliena and actio in rem) and, on the other hand, in the abstract

worlds or legal maxims and principles; in turn this bond could be

expressed as a iuris vinculum obligation capable of acting in public law

(lex regia) as a means of transferring political sovereignty (imperium) to the ruler.66 The notion of a ius was, then, an ideal focal point for the

harmonisation of political power, commercial relations, individual

advantage and philosophical respectability67; it was, quite simply, a

political, and no doubt ideological, device by which the subject could

be turned into an economically active citizen without undue

compromise to the realities of imperium. And it is this interplay of

powerful legal devices, gaining their medieval authority from their

pedigree in the Corpus luris Civilis,68 that not only lies at the base of

the Continental idea of private sovereignty in private law, but goes some way in showing that Roman law need not be viewed by the

common lawyers as a system tending always to bolster the descending thesis of government.

In fact the common lawyer's traditional distrust of Roman law is

today probably misplaced in that many of the conceptual ingredients of

Roman law are now to be found in the common law69; yet the sum total

of these ingredients seems to have added up to something rather

different to that found on the Continent. The absence (until recently at

least) of a formal division between public and private law and the lack

of an individualistic iuris vinculum between person and thing have

tended to shift the focus of attention onto the legal subject him-, her-

or itself as the nucleus of a range of varying patrimonial interests. In

the place of an inviolable bond between subject and object the

historical tradition of the common law has instead provided a series of

boundaries aimed at protecting the "liberties" ofthe subject. In other

words the approach of the common law, when it has had to consider

the limits of public or private power, has been to think more in terms of

negative interests rather than positive rights. The point can be

65 Finnis, op. cit., pp. 206-210. 66 D.1.4.1. 67 See, e.g., D.4.4.16.4; Macpherson, Possessive Individualism (op. cit.), pp. 255-257. 68 Ullmann, Law and Politics (op. cit.), pp. 53-79. 69 Stein, Legal Institutions (op. cit.), p. 125.



[1987 286 The Cambridge Law Journal

sllustrated by the remedy of trespass, perhaps the most central action for the protection of "constltutional rights."70 This action has never really provided the means by which an individual could be invested with a sword which he or she could wield against an overmighty public or private body; all that the action has provided has been a shield against existing Parliamentary power.71 If Parliament wished to overcome for the future this particular shield, all that it had to do was to increase the powers of the agency in question.72 Of course trespass does not give the complete legal picture with regard to the individual and the State the expansion of the judicial review remedies has changed the details (but perhaps not the overall picture) considerably and it would probably be quite misleading to suggest that property owners on this side of the Channel have significantly less economic power than their brethren on the other side.73 However in eschewing, until recently at least, the systematics of Gaius,74 the English judges have invested the individual with remedies capable of finding their starting point at best only in the notion of "duty"-a notion that lends itself to analysis as an "objective juridical situation" rather than a "subjective right''75- and at worst in some vague notion of freedom and liberty.76 There is, quite simply, no specific constitutional starting point in the English common law by which the individual can assert a political claim against the state, or indeed against any other person, via the language of law.77 In both public and private law the litigant in the English legal system must always behave like the plaintiff in a tort claim: he or she can certainly assert that they have in such or such a situation an action against some public or private body-and they can probably assert that they have a "legitimate interest" or "expectation." What they cannot claim is a right to the actual substance, or object, of the action itself they cannot claim a right, as a citizen, to succeed. In other words, for better or for worse, the concept of le droit subjectif has little relevance in English law.

7n Weir, Casebook (op. cit.), p. 268. 71 See, e.g., Cooper w. Wandiswort/ Board of Works (1863) 14 C.B.(N.S.) 180; 143 E.R. 414. 72 See e.g., l.R.C. v. Rossminster Ltd. 11980] A.C. 952: omniapraesumllntur rite esse acra. 73 LEvy, PropriFld (op. cit.), pp. 112-114; Griffith, op. cit., pp. 202-203. 74 Weir, "Complex Liabilities" (op. cit.), para. 67. 75 Griffith, Op. Cit., p. 203. See generally, Roubicr, Droits subjectifs (op. cit.), pp. 1-43. 76 Griffith, Op. Cit., pp. 8>87. " Turpin, Op. Cit., pp. 92-93; Lewis & Wiles, "The Post-Corporatist State?" (1984) 1I Journal of Law and Sociery 65.



Documents

"Le Droit Subjectif" and English Law