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Liberty, Community, and Corrective Justice

Published online by Cambridge University Press:  09 June 2015

Ernest J. Weinrib
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Extract

In a well-known article, Duncan Kennedy has stated that the central problem for law is its treatment of the fundamental contradiction of our condition. On the one hand we are dependent on others for protection against destruction and for the fullest realization of our sense of ourselves; on the other hand we recognize in others a threat to our own well-being. Kennedy regarded the dilemma “that relations with others are both necessary to and incompatible with our freedom” as the essence of every legal problem, and he ascribed to the liberal conception of law the historical function of dressing up as rational or natural the structures of bondage that emerged as its particular resolutions. Kennedy’s contradiction invokes the recurrent tension between the notions of liberty and community that supply traditional vantage points for the analysis of social and political relations. The reconciliation of these notions poses an enduring philosophical problem, and one need not agree with Kennedy’s unflattering assessment of the law’s function to realize that it is a problem in which law too has been centrally implicated.

Type
Research Article
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Canadian Journal of Law & Jurisprudence , Volume 1 , Issue 1 , January 1988 , pp. 3 - 17
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1988

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References

1. Kennedy, , The Structure of Blackstone’s Commentaries, (1979) 28 Buffalo L.R. 205, 211–3.Google Scholar See also Gabel, and Kennedy, , Roll Over Beethoven, (1984) 36 Stanford L.R. 1 15 Google Scholar (renouncing the fundamental contradiction). The issue is discussed in Hunt. The Theory of Critical Legal Studies, (1986) 6 Oxford J. of Legal Studies 1, 24–28 Google Scholar

2. Kennedy, supra note 1, at 28 Buffalo L.R., 213.Google Scholar

3. Throughout this paper “private law” is used as a conventional term that includes tort law, contract law, and the law of restitution. As will be seen, however, my focus is not on the content of this conventional term but on the ordering of corrective justice that underlies the most significant features of private law. Legal doctrines that are not intelligible on that basis (e.g. contribution among tortfeasors) are beyond the purview of this essay, although they might conventionally be included in private law.

4. For critical surveys of the leading approaches in contemporary tort theory, see Steiner, Economics, Morality and the Law of Torts (1976) 26 University of Toronto Law Journal 227 Google Scholar; Englard, , The System Builders: A Critical Appraisal of Modern American Tort Theory (1980) 9 Journal of Legal Studies 27;Google Scholar Coleman, Moral Theories of Torts: Their Scope and Limits (1982) 1 Law and Philosophy 371, (1983) 2 Law and Philosophy 5.Google Scholar

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6. Cf. Hobbes., A Dialogue Between a Philosopher and a Student of the Common Laws of England (Cropsey, ed.,1971) 55); “The Law of England .. . hath been fined and refined by an infinite number of Grave and Learned Men.”Google Scholar

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8. Aristotle, , Nicomachean Ethics 5, 2–4, discussed by Weinrib, Aristotle’s Forms of Justice, (1988)1 Ratio Juris.Google Scholar

9. Cf. Arendt, , Men in Dark Times (1968) 31f.Google Scholar

10. Plato, , Republic 462C.Google Scholar

11. Cooper, , Aristotle on Friendship, in Rorty (ed.), Essays on Aristotle’s Ethics (1980) 301;Google Scholar Kronman, , Aristotle’s Idea of Political Fraternity, (1979) 24 American J. of Jurisprudence 114.CrossRefGoogle Scholar

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13. Most recently by Finnis, supra note 12, chapter VI (on community) and pages 9–11 (on central cases).

14. (188) 146 Mass. 349.

15. Kant, , The Metaphysical Elements of Justice (Ladd tr. 1965) 42 (emphasis added), discussed in Weinrib, Law as a Kantian Idea of Reason, (1987) 87 Columbia L.R. 472–491, 500.Google Scholar

16. Kant, supra note 15, 70.

17. Hegel, , The Philosophy of Right (Knox tr. 1952 s. 37A.Google Scholar Cf. Hegel, , Aristotle, Nicomachean Ethics 81155a 26Google Scholar and Cooper’s comment on this passage in Aristotle on the Forms of Friendship, 1977 30 Review of Metaphysics 619, at 646.Google Scholar

18. E.g., Hume, , A Treatise of Human Nature (Selby-Bigge, ed. 1978 497.Google Scholar

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21. Kant, supra note 15, 34.

22. Cf. Goldmann, , Immanuel Kant (Black, tr. 1971 170.Google Scholar

23. [19321 A.C. 562, at 580 (H.L.).

24. Hegel, supra note 17, s. 1Í8.

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28. (1837) 3 Bing. N.C. 467 (CP.).

29. Ibid, at 471.

30. Epstein makes this criticism of negligence supra note 25, at 6.

31. Weinrib, supra note 15, 478–91.

32. Holmes, , The Common Law (1881) 88ff.Google Scholar

33. Ibidat 94.

34. Ibidat 96.

35. Hegel, supra note 17, ss. 96–101.

36. E.g. Calabresi, and Hirschoff, , Toward a Test of Strict Liability in Torts, (1972) 81 Yale Law Journal 1055.Google Scholar The term “activity tax” is taken from Henderson, Process Constraints in Tort, (1982) 67 Cornell Law Review 901, at 915.Google Scholar

37. Supra note 25, at 15ff.

38. In Notion et Portée de la “Volonté Generale” chez Rousseau, Jean-Jacques (1912) 20 Révue de Méta-physique et de Morale 383, at 384 Google Scholar, at 384, Rudolf Stammler formulates Rousseau’s decisive conceptual innovation in terms of this shift. Hegel describes a similar transformation in his Prefatory Lectures on the Philosophy of Law (1978) 8 Clio 49, at 57–61 (Brudner tr.). Cf. Habermas' account of what he terms “the positivization of Natural Law” in Theory and Practice (Viertel tr. 1973) 82ff.

39. For an outline of the significance of the Kantian priority of the right, see Weinrib, supra note 15, 501–3. The matter is dealt with at length in a forthcoming article, Benson and Weinrib, The Right and the Good.

40. Rawls, , A Theory of Justice (1971) 8;Google Scholar Gewirth, , Reason and Morality (1978).Google Scholar

41. Gewirth, , Contract as Promise (1981).Google Scholar

42. Dworkin, , Taking Rights Seriously (1977).Google Scholar

43. Iam grateful to Peter Benson. David Copp. Peter Schuck, and Roger Shiner for comments on earlier drafts of this paper.