Rights and Wrongs

If one were to ask an American lawyer or legal scholar for a definition of liberalism, her explanation would likely include mention of constitutional provisions such as the First and Fourth Amendments. This is because liberalism is today understood primarily as a theory of what government officials may not do to citizens. Its most immediate expression in law is thus taken to be those parts of the Bill of Rights that set limits on state action. This tendency to conceive of liberalism exclusively as a theory of rights against government is a twentieth century phenomenon. To be sure, liberalism has always embraced such rights. But for most of its history, it has in addition contained a theory of rights against private misconduct. It thus entailed not only a negative obligation on the part of government to refrain from infringing upon the liberties of citizens, but also a positive obligation to provide criminal and civil law that protects against, and provides redress for, wrongful invasions of rights by private actors. Thus, whereas today liberalism is primarily understood as a theory of constitutional rights, for most of its history it was offered as a theory of both rights and wrongs. The older conception of liberalism is evident in the work of Blackstone. Blackstone quite explicitly organized the Commentaries so that they would “in the first place consider the rights that are commanded, and secondly the wrongs that are forbidden by the laws of England.” Implicit in this organization is the claim that, just as English liberalism entailed a duty on the part of government to respect individuals’ rights, so too it entailed an obligation to enact and administer laws against private misconduct. These wrongs include what Blackstone called “private” or “civil” wrongs – wrongs against particular persons – and “public” or “criminal” wrongs – wrongs against society as a whole. Critically, for Blackstone, the law of wrongs incorporated both a prospective and a remedial component. Government was “officially bound” not only to specify the conduct forbidden by law, but to provide “redress” for harms caused by such conduct.