Enforcing Legal Norms Through Private Means

Abstract

We ordinarily think of legal norms as not only established through public means, but also enforced through public means—typically by legislatures and courts, or by bodies authorized by law to produce and enforce such norms. That view of legal norms is, however, an incomplete one. Private actors of various stripes also produce norms that, directly or indirectly, exert binding effect. Modes of private law enforcement span a wide range, running from the most private, personal, and informal at one extreme, to the quite formal, on the other. Development of private modes of law enforcement relieves public authorities of carrying the full law enforcement burden. Yet, private law enforcers often work in tandem with public authorities, especially as we move along this spectrum I have identified. Either way, private law enforcement promotes the public good. However, private law enforcement is not an unmitigated good. Each mode of private law enforcement brings along with it a certain number of risks that must be acknowledged and addressed. Ironically, perhaps, these risks sometimes can only be properly addressed with a minimum of intervention of public authorities. In other words, public and private law enforcement are deeply mutually interdependent.