It would be difficult for any recent scholar of private law not to have noticed the increasing amount being written about the role of “rights” in private law. This scholarship can roughly be grouped in three categories. First, there is analytical or descriptive work which, normally taking its cue from Hohfeld, typically analyses the conceptual nature of and analytical relationships between the legal rights created by private law, and the taxonomic consequences (if any) of this. Second, there is interpretivist work which typically claims that understanding private law in terms of rights (and here the notion of “rights” usually refers to some more-or-less-worked-out theory of moral rights) provides the most coherent or morally appealing explanation of private law or aspects of private law as we find it. Third, there is (purely) normative work, which seeks to justify private law's existence or particular aspects of private law, by reference to (moral) rights or which makes normative claims about the role of rights in private law adjudication.

Rights and Private Law contains 21 essays, each of which engages with one or more of these strands of rights-centred scholarship. Around one-third of them are relatively general explorations of the role of rights in private law. These essays will be particularly helpful to those seeking to understand the different kinds of rights-centred theories and analyses of private law out there and what makes them distinctive. Ten contributions are about the role of rights in tort law. The volume closes with two essays on unjust enrichment. None of the contributions is directly focussed on contract law. All in all, this is a stimulating collection of high quality work. A brief rundown of some (but certainly not all) highlights follows.

In the analytical strand of scholarship identified above, one of the most interesting contributions is Stephen Smith's, “Rule-Based Rights and Court-Ordered Rights”. Smith explores the relationship between the rights and duties created by court orders and the antecedent “rule-based” rights and duties which addressees of legal norms enjoy and to which they are subject prior to any court order. His conclusion is that there are no necessary, conceptual, connections between court-ordered rights and rule-based rights, in that the existence of one need not imply the existence of the other, and that court-ordered duties can perform different functions (such as providing greater motivational force to, and making precise the requirements of rule-based duties) from rule-based duties.

Nicholas McBride's “Rights and the Basis of Tort Law”, also broadly in the analytical strand, provides a neat analysis of the precise sense in which tort law confers legal rights upon people. He criticises the conflation in the work of other rights-centred approaches to tort law of rights to x, and rights that other people do or refrain from doing something, arguing that tort law confers only the latter form of rights. McBride's essay is also of interest from a normative perspective. It sets out what might be described as a “pluralist” view of the considerations relevant to determining what legal rights tort law should confer. In McBride's view, considerations of public interest (such as concerns about the incentive effects of creating a certain right (p. 354)) can be relevant alongside others concerning the individual interests of the potential right-holder and duty-bearer. Andrew Robertson also provides an interesting pluralist account of the considerations relevant to determining when a duty of care in negligence should be owed which claims to accord “adequate weight to considerations of both justice and welfare” (p. 457). François du Bois’ contribution, “Social Purposes, Fundamental Rights and the Judicial Development of Private Law” could also be construed as pluralist in so far as it accepts that considerations of the “common good”, structured by values in human rights legislation, should also be relevant to determining the content of private law rights alongside relational considerations concerning the interaction of the parties as equal rational agents. These pluralist contributions may be welcomed by those who reject monistic accounts of private law, such as the rational-agency-centred account offered by Ernest Weinrib in The Idea of Private Law (Harvard 1995).

Moving to the interpretivist strand, Jason Neyers’ essay “Explaining the Inexplicable? Four Manifestations of Abuse of Rights in English Law”, seeks to show that a principle against the abuse of rights, interpreted as imposing a duty not to inflict gratuitous harm, is consistent with a Weinribian-Kantian rights-based theory of private law and that it can explain various, otherwise anomalous, private law doctrines. These are: the equitable doctrine of marshalling of securities, misfeasance in public office, lawful means conspiracy, and lawful act duress. As Neyers realises, however, an abuse of rights principle cannot explain why gratuitous harm is only actionable where committed by a person in public office (the misfeasance tort) or when they join together with another person (lawful means conspiracy). Abuse of rights is at best a partial explanation for the current scope of these torts.

Also in the interpretivist strand, Donal Nolan and Richard Wright's contributions both offer rich discussions of the tort of private nuisance from rights-based perspectives. Nolan's basic argument is that the tort is a “thoroughly coherent cause of action” (p. 459) once construed as protecting rights in land. It is not entirely clear what conception of rights Nolan has in mind, however. It is not simply a Hohfeldian analysis. At one point, he writes that if the scope of liability in nuisance were determined by a cost-benefit analysis, which weighed the utility of the interference against the harm to the claimant, this “would call into question the idea that the tort protects the claimant's real property rights, since determining the question of actionability in such a way would not give property owner and occupiers an objective ‘right’ at all” (p. 469). This implies some deeper notion of a right, since there is no problem with having a Hohfeldian legal claim-right whose content is determined purely by reference to a cost-benefit analysis. One might question whether conceiving of private nuisance as protecting property rights in land in itself explains certain features of the tort, or whether it is only one particular (and potentially controversial) conception of rights which does so.

Some of the most interesting contributions to the volume are those which offer more general reflections on the role of rights in private law. Nolan and Robertson's opening chapter “Rights and Private Law” helpfully attempts to set out the main characteristics of rights-based analyses of private law, based upon a wide-ranging engagement with different proponents of such approaches, and discusses the role of taxonomy, policy, corrective justice and the state therein. In a similarly general, if more idiosyncratic, vein Robert Stevens’ chapter, “Rights and Other Things”, seeks to differentiate “rights from other things with which they are frequently confused” (p. 116). One such other thing is “loss”. Stevens makes a surprising claim about the relationship between rights and loss. In his view “it is … meaningless to talk of a right not to be caused loss. If loss is suffered, it is a consequence of a breach of a duty; it cannot go to the definition of what D is under a duty to do or not to do” (p. 119). The reason, it seems, is that “a wrong, or injury, occurs in a moment of time” whilst whether one has suffered a loss depends upon a comparison between one's state at the time of trial with one's pre-tort state (and so is not a question of what occurred at a moment in time). Stevens’ defence of this view is understandable given the sharp contrast drawn in his Torts and Rights (Oxford 2007) between a loss-based model of tort law and a rights-based model. If people can enjoy legal rights not to be caused a loss (under certain conditions), then the contrast between these two models is blurred. Yet many, I suspect, will be unconvinced by the idea that the concept of “loss” cannot – as a matter of conceptual fiat – enter into the specification of a person's primary legal rights or duties.

Perhaps the most critical, general, reflection on rights-based approaches in the volume is Peter Cane's contribution, “Rights in Private Law”. Cane's basic claim is that leading rights-based theorists (his principal focus is on the work of Stevens and Allan Beever), whilst offering their views as interpretations of the existing private law, ultimately seek to impose their own “individualist ideology of autonomy” upon private law (p. 41). In so far as these theorists claim that the best interpretation of (most of) private law rests upon moral rights grounded solely in considerations of individual freedom, there is probably some truth in this. It may be that an ideal private law should only be concerned with enforcing the moral rights individuals enjoy qua free and equal rational agents. If so, let it be defended in those, explicitly normative, terms.