Of Brutal Murder and Transcendental Sovereignty: The Meaning of Vested Private Rights

Abstract

The idea of vested private rights divides those who practice law from those who teach and think about law. On one side of the divide, practicing lawyers act as though (at least some) rights exist and exert binding obligation upon private persons and government officials. On the other side of the divide, scholars of law and jurisprudence have generally proceeded, since at least the rise of English positivism in the nineteenth century and the American legal realist movement in the early twentieth, as if the concept of vested right has little real meaning. This article attempts to explain the doctrine’s continued appeal and to discern some coherence in it while also accounting for the causes of skepticism.The approach is made by way of a central case study: the right of emancipation on free English soil. The study suggests a coherent, focal meaning of the vested private right as a norm that imposes a conclusive duty upon a duty-bearer or class of duty-bearers, and which constrains public officials’ powers to recognize, change, or adjudicate private rights and duties. This focal meaning suggests that central instances of vested rights are quite rare. This accounts for skepticism of the concept. Yet it also suggests that less-central instances of vested rights are rather common. This accounts for the concept’s practical appeal and enables one to distinguish weak or peripheral senses of vested private rights, which are not as conceptually interesting but are nevertheless significant for the practice of law, from strong or central senses, which are rare in practice but theoretically interesting.