Private Law, Private Enforcement

Abstract This chapter examines the dominant private enforcement paradigm that exists in private law. It explains the normal ‘right-holder’ rule, according to which anyone holding any type of Hohfeldian private law ‘right’ (claim right, power, liberty, or immunity) has a right of action when the right is infringed, together with a number of possible exceptions to the rule. It identifies the possible justifications (moral and instrumental) both for the rule and the exceptions. It concludes by examining the extent to which private enforcers act in protection of public interests through hybrid private law actions for punitive or exemplary damages. It examines the logical implications of accepting private enforcers in this role both for the way in which rights of action are controlled; and for the way in which damages awards should be distributed, examining systems which split awards between the enforcer and the public.