Standing in private law

Thesis

This thesis is the first monograph-length work dedicated to investigating the idea of standing within private law. The overarching claim of this thesis is that standing is a separable concept that can, and should be distinguished more clearly from ‘right’. Doing so is important for the rational development of private law doctrine.

In public law, standing rules are well-recognised. Yet, to private lawyers, standing seems a missing concept. It even appears to be conventional wisdom that private law does not have or need standing rules. In this thesis, it is argued that a key reason why standing has been a relatively overlooked concept, receiving meagre attention from private lawyers, is because it has been obscured from plain sight, submerged within the more dominant concept of a ‘right’.

This is a situation ripe for confusion and error. The difficulty is compounded by the lack of a suitable vocabulary and conceptual apparatus to differentiate standing from ‘rights’. In a wide range of contexts, what we might think of as standing has been variously referred to as a ‘right to sue’, ‘right to enforce’, or ‘right of action’. For the unwary, these labels have proved misleading. Further, the role of standing has been subsumed within the broader umbrella of ‘privity’, itself an inadequately understood cluster of ideas.

Through extended analyses of case-law and statutory examples, the undesirable implications of this conceptual elision will be shown. A concept of standing is introduced, and then distinguished from neighbouring concepts which could obscure it from view. It is also argued that an implicit general standing rule exists across private law. Its content is defined, and questions about its justifiability, and the justifiability of its exceptions, are addressed.

Authors: Liau, T

• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: Standing; Private law theory; Powers; Rights; Law of obligations; Private law
• Subjects: Law