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On the Idea of Private Law

Published online by Cambridge University Press:  09 June 2015

Martin Stone
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This essay endeavors to comment on the main themes of Ernest J. Weinrib’s The Idea of Private Law. Weinrib’s primary example of private law, and the example I shall pursue here, is tort law. In a typical torts case, the plaintiff complains that he has been injured as the proximate result of the wrongdoing (usually the negligence) of the defendant. This, the plaintiff says, is a breach of legal duty for which the defendant is liable. Questions about the foundations of tort law are questions about the significance of the terms in this story and about why, when it is proven that a transaction characterizable in these terms has occurred, the plaintiff is entitled to what he asks for, namely, compensation.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 9 , Issue 2 , July 1996 , pp. 235 - 277
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Copyright © Canadian Journal of Law and Jurisprudence 1996

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© Martin Stone, 1996. The occasion of this essay was an invitation to comment, at the 1994 American Philosophical Association Eastern Division Meeting, on Ernest J. Weinrib’s The Idea of Private Law. This essay closely tracks the themes of Weinrib’s book. Although 1 have tried to emphasize some points of disagreement, I am greatly indebted to Weinrib not only for the wealth of instruction his work has afforded concerning the problems I discuss here, but more fundamentally, for bringing these problems themselves so compellingly into view. I would like to thank Richard Bronaugh, George Christie, Richard Moran, Chris Schroeder, Gisela Striker, Toril Moi and Ernest Weinrib for their comments on an earlier draft.

1. “Law Like Love” in W.H. Auden: Selected Poems, Mendelson, D., ed., (London: Faber and Faber, 1979) at 89–90.Google Scholar

2. Cambridge, MA: Harvard University Press, 1995 [hereinafter PL], [i-x + 237 ISBN 0-674-44212-1 US$35]

3. The phrase is from Leon Green, “Tort Law: Public Law in Disguise” (1959) 38 Texas L. Rev. 1. “Functionalism” here refers broadly to theories seeking to justify tort liability rules exclusively through their purposes or goals. This should be distinguished from “functional explanation” in the sense of explaining why something is the way that it is by reference to the consequences of its being that way.

4. In the terms of Guido Calabresi’s classic analysis, “deterrence goals” aim to minimize the sum of accident and avoidance costs (primary costs), “compensation goals,” to redistribute occurrent losses in a way that makes them easier to bear (secondary costs). A third category of costs are administrative costs. Calabresi takes it “as axiomatic” that the function of any form of accident law, is optimal cost-reduction. See Calabresi, Guido, The Cost of Accidents (New Haven, CT: Yale University Press, 1970).Google Scholar

5. See, e.g., Calabresi, Guido, “Concerning Cause and the Law of Torts” (1975) 43 U. Chicago L. Rev. 69 CrossRefGoogle Scholar at 105. See also Posner, Richard, The Problems of Jurisprudence (Cambridge, MA: Harvard University Press, 1990) at 360–61Google Scholar[hereinafter PJ].: “Wealth maximization…provides not only the key to an accurate description of what judges are up to but also the right benchmark for criticism and reform.”

6. Compare Kant’s use of the term “public right” in The Metaphysics of Morals, trans. Gregor, Mary, (Cambridge: Cambridge University Press, 1991) at 120–23Google Scholar [306–12].

7. See, e.g., Posner, Richard, “The Concept of Corrective Justice in Recent Theories of Tort Law” (1981) 10 J. of Legal Stud. 187.CrossRefGoogle Scholar

8. PL at 8; cf. 5.21. See also Weinrib, Ernest, “The Insurance Justification and Private Law” (1985) 14 J. of Legal Stud. 681 CrossRefGoogle Scholar at 686; Weinrib, , “Understanding Tort Law” (1989) 23 Valparaiso U. L. Rev. 485 Google Scholar at 491.

9. Cf. Calabresi, Guido, “Concerning Cause and the Law of Torts” (1975),Google Scholar supra note 5.

10. Hegel, G.W.F., Elements of the Philosophy of Right, ed. Wood, Allen W., trans. Nisbet, H.B. (Cambridge: Cambridge University Press. 1991) at 130.Google Scholar [Hereinafter PR].

11. My argument in 2–4 below generally follows Weinrib, PL at 40–42, and Weinrib, , “Understanding Tort Law,” supra note 8 at 486”510.Google ScholarA brief version of the argument is available in Weinrib, , “Formalism and Its Canadian Critics” in Cooper-Stephenson, Ken & Gibson, Elaine, eds., Tori Theory (North York, ON: Captus University Publications, 1993) at 6–15.Google ScholarA premise of the argument is the commonplace that the joining of two parties through liability is a central, identifying feature of tort law. But someone might wonder whether this doesn’t already load the question against the public law theorist. Might one not just as well begin by taking “tort law” to be society’s response to the costs of accidents, leaving it open what institutional practices will be most serviceable? Are we perhaps inappropriately “essentializing” tort law? The answer, I think, is no. Nothing in the present starting point need imply that the current institution of tort law may not be revised in light of a new understanding of its normative foundations; nor does it imply any commitment to decide prior to such a revision whether the result would still be recognized as “tort law” or some more or less distant relation. The only point to be insisted on here is that if it makes sense to speak of an institution and its revision at all, it also makes sense to seek a description of it that (unlike the proposed “economic” starting-point) allows the question of its rational and moral interest to be raised as a question. Where the reasons for an institution are controversial (as they are in the case of tort law), that is the kind of description we need.

12. The point is noted by Posner. See Posner, Richard, “A Theory of Negligence” (1972) 1 J. of Legal Stud. 29 CrossRefGoogle Scholar at 31.

13. This question concerns what Jules Coleman calls tort law’s “mode of rectification.” See Coleman, , Risks and Wrongs (Cambridge: Cambridge University Press, 1992) at 287–88.Google Scholar

14. Some judges do, of course, support their application of tort liability rules by a “loss-spreading” rationale. But the search for a good spreader remains limited by the requirement that liability be placed only on a party causally related to the accident. And despite efforts to reinterpret the idea of “causal relation” along functional lines, this requirement is bound to limit the possibilities of loss-spreading. See my “Focusing the Law: What Legal Interpretation is Not” in Marmor, A., ed., Law and Interpretation: Essays in Legal Philosophy (Oxford: Oxford University Press, 1995) at 72–80.Google Scholar

15. For an argument to this effect, see Jules L. Coleman, supra note 13 at ch. 16. That the idea of annulling wrongful losses is subject to the same difficulties as what 1 am calling the “compensation rationale” would be one way of putting one of Coleman’s points. The “annulment thesis” implies that “wrongfully imposed losses are among the kinds of losses that should be compensated for, but so are (arguable) losses that result from handicaps, natural disasters, and misfortunes generally” (ibid, at 314). In acknowledging the need for “agent-relative” reasons, Coleman is here accepting a criticism of his earlier view by Stephen Perry (among others). See Perry, Stephen R., “Loss, Agency.and Responsibility for Outcomes: Three Conceptions of Corrective Justice,” in Tort Theory, supra note 11 at 26–29.Google Scholar

16. See Richard Posner, “A Theory of Negligence”, supra note 12.

17. How well it deters is controversial. Steven Sugarman finds “little reason to believe that personal injury law today actually serves an important accident-avoidance function.” Indeed, if deterrence were the only objective, “society would be decidedly better off if it did away with private law damages for accidents.” Sugarman, , Doing Away With Personal Injury Law (New York: Quorum Books, 1989) at 3.Google Scholar

18. Proponents of deterrence who do not allow compensation as an independent goal of tort law generally seek to take the plaintiff’s right to damages on board as a useful means of identifying inefficient conduct and bringing the requisite penalties to bear. Damages, in short, “are paid over to the plaintiff (to be divided with his lawyer) as the price of enlisting their participation in the operation of the system.” Richard Posner, “A Theory of Negligence”, supra note 12 at 33. Adequate criticism of Posner’s proposal is not possible here, but the following general point might be noted. Although this proposal does suggest a reason to penalize the inefficient defendant, on the one hand, and to pay someone to prosecute the defendant, on the other, tort liability links the parties in a much stronger way. First, the amount of the plaintiff’s recovery is identical to the amount of the defendant’s liability. Second, this common amount is based on the plaintiff’s actual loss. Third, the plaintiff’s claim to recovery is a claim against just those persons who have harmed him, while the defendant’s liability is to just those persons whom he has harmed. For doubts about Posner’s “private enforcement” argument in light of these points, see Ernest Weinrib, “Understanding Tort Law”, supra note 8 at 503–10; Jules Coleman, supra note 13 at 374–84. It should not be assumed, of course, that an explanation of tort liability must be as categorical as the rules themselves. But the appeal to efficiency seems to make the rationality of the current practice hang by a thin empirical thread.

19. Cf. Guido Calabresi, supra note 4.

20. In practice, the causal requirements of tort liability (implying a backward focus) preclude a (forward-looking) search for such ideal cost-avoiding parties. So the conclusion reached in one recent examination of the judicial use of economic analysis is not surprising: Most of the cases were resolved on traditional grounds. See Englard, I., The Philosophy of Tort Law (Brookfield, VT: Dartmouth Publishing Co., 1993) at 33–43.Google Scholar

21. Guido Calabresi(see supra note 4) is, in one important respect, not the sort of pluralist imagined here. This tri-part scheme of accident cost reduction is, for him, a framework for the analysis of “accident law”; and that leaves the case for tort law to be made.

22. These questions follow Weinrib, PL at 40–42.

23. See, e.g., Franklin, Marc, “Replacing the Negligence Lottery: Compensation and Selective Reimbursement” (1967) 53 Va. L. Rev. 774 at 784–85:CrossRefGoogle Scholar“The most that can be said for the fault system is that sometimes it compensates, sometimes it deters and sometimes it furthers good resource allocation, not from any general philosophy, but rather because it is incapable of operating beyond the individual case.” See also Stephen Sugarman, supra note 17.

24. Compare Guido Calabresi, The Cost of Accidents, supra note 4 at 14; Calabresi, G. & Klevorick, A., “Four Tests for Liability in Torts” (1985) 14 J. of Legal Stud. 585 CrossRefGoogle Scholar at 626. My statement of the empirical issue is oversimplified since the choices for optimal cost reduction are not limited to tort law or one of its alternatives, but. as Calabresi points out, include mixed systems as well. Given the information problem, it is not surprising that Calabresi himself makes few endorsements.

25. Aristotle, , Nicomachean Ethics, trans. Terence, Irwin (Indianapolis, IN: Hackett Publishing Co., 1985)Google Scholar at 1180a21 [hereinafter NE).

26. For (I), see, e.g., PL at 26–28; for (2) and (3), see, e.g., PL at 4, 11–12, 16, 18.

27. See Joseph, Raz. “Formalism and the Rule of Law” in George, Robert P., ed., Natural Law Theory: Contemporary Essays (Oxford: Oxford University Press, 1992) at 314.Google Scholar

28. With Weinrib’s characteristic qualification of purposes as “external” (e.g., PLM 16) and goals as “extrinsic” (e.g., PL at 12), compare Posner, PJ at 361: “From the premise that the common law does and should seek to maximize society’s wealth, the economic analyst can deduce … the set of legal doctrines that will express and perfect the inner nature of the common law.”

29. It is not clear that Weinrib himself thinks we can. See infra § 20.

30. Admittedly, it can seem unclear what the point of talk of “justification” might be in many cases of “prudential” reasons for action. But the present point seems clear enough if, following Kant, we understand questions of justification to be questions about whether one’s reasons for action are good ones (i.e., where the principles for assessing reasons are hypothetical, prudential and categorical imperatives). Weinrib’s requirement of “coherence” purports to express a requirement practical rationality; it purports to say something about the sufficiency of reasons. But the presence of conflicting purposes or trade-offs doesn’t seem to distinguish good reasons from bad ones.

31. It cannot, for Weinrib, be a sufficient condition either, since some forms of utilitarianism obviously pass the coherence test.

32. More generally, according to Hart, “any morally tolerable account of [criminal punishment] must exhibit it as a compromise between distinct and partly conflicting principles.” “Just because the pursuit of any single social aim always has its restrictive qualifier, our main social institutions always possess a plurality of features which can only be understood as a compromise between partly discrepant principles.” Hart, H.L.A., “Prolegomenon to the Principles of Punishment” in Punishment and Responsibility: Essays in the Philosophy of Law (Oxford: Oxford University Press, 1968) at 1,Google Scholar 10.

33. Cf. Paul, Ricoeur, Oneself as Another, trans. Blamey, Kathleen (Chicago: University of Chicago Press, 1992) at 219.Google Scholar

34. My understanding of Aristotle’s discussion of corrective justice has benefited especially from Ernest Weinrib, PL; Weinrib, , “The Gains and Losses of Corrective Justice” (1994) 44 Duke Law J. 277;CrossRefGoogle Scholar Finnis, John, Natural Law and Natural Right (Oxford: Oxford University Press, 1980) at 161–97;Google Scholar Jules Coleman, supra note 13 at 197–429; Perry, Stephen R., “The Moral Foundations of Tort Law” (1992) 77 Iowa L. Rev. 449;Google Scholar and Benson, Peter, “The Basis of Corrective Justice and Its Relation to Distributive Justice” (1992) 77 Iowa L. Rev. 515.Google ScholarLike Weinrib, Benson wishes to ground Aristotle’s conception in a notion of personality whose “hallmark … is indifference to and independence from particularity as such, including the person’s very life and existence” (564); see § 18 below.

35. A similar induction seems to underlie Aristotle’s distinction between three forms of rhetoric, each having “its own ‘time’” and its own corresponding “end”. “Judicial” [dikanikon] rhetoric is directed toward judgment concerning “what has been done” (a past happening about which disputants offer accusation and defense) and it has as its primary end “the just” [dikaion]. “Deliberative” and “demonstrative” rhetoric are directed towards the future and the present respectively and have as their primary ends “the advantageous” [sympheron] and “the honorable” [kalon]. Aristotle, , On Rhetoric, trans. Kennedy, George A. (Oxford: Oxford University Press, 1991) at 47–49 Google Scholar [1358b-59a]; see also 31 [1354b].

36. See, e.g., Mclntyre, Alasdair, Whose Justice? Which Rationality? (London: Duckworth, 1988) at 103–04;Google Scholar Fletcher, George, “Corrective Justice for Moderns” (1993)106 Harv. L. Rev. 1658 CrossRefGoogle Scholar at 1668; Hamburger, M., Morals and Law: The Growth of Aristotle’s Legal Theory(New Haven: Yale University Press, 1951) at 46.Google ScholarThe possibility that corrective justice refers to an absolute equality of holdings may be discounted, not because this is unlikely to be true, but because it is hard to see what significance such equality would have unless it accorded with a distributional norm; so this possibility is only a special case of proportional equality.

37. See PL at 79. See also Nozick, Robert, Anarchy, State and Utopia (New York: Basic Books, 1974) at 160–64.Google Scholar

38. Actual legal practice supports this. Suppose that when X negligently destroys Y’s sheep, the validity of the norm that entitles Y to repair is conditional on the justice of their antecedent holdings. Given this, why isn’t it an appropriate defense for X to claim that the distribution following upon the transaction is more equitable? The law does not allow this defense. It requires, and so permits. X’s liability to be established without reference to distributive justice. It may be thought that the prior justice of the parties’ holdings is present as a presumption, which is required if the rules for transactions are not to be overly complex. There is truth in this; securing background justice must largely be the province of a different set of institutions. But aren’t other simplifying presumptions possible? Is the only realistic alternative to allowing transaction-based challenges to the distribution of wealth that of excluding such challenges altogether? Cf. Weinrib, PL at 79 and Benson, Peter, “The Basis of Corrective Justice and Its Relation to Distributive Justice,” supra note 34 at 530–31.Google Scholar

39. I follow Weinrib’s use of the word “correlative” here. See Aristotle, , Rhetoric, ed., Ross, W.D. (Oxford: Oxford University Press, 1959)Google Scholar at 11.23. 1397a23-27; quoted in Weinrib, Ernest, “The Gains and Losses of Corrective Justice,” supra note 34 at 284 Google Scholar n. 15: “Another topic is derived from correlatives. If to have done rightly or justly may be predicated of one, then to have suffered similarly may be predicated of the other.... And if rightly or justly can be predicated of the sufferer, it can equally be predicated of the doer....”

39. I follow Weinrib’s use of the word “correlative” here. See Aristotle, , Rhetoric, ed., Ross, W.D. (Oxford: Oxford University Press, 1959)Google Scholar at 11.23. 1397a23-27; quoted in Weinrib, Ernest, “The Gains and Losses of Corrective Justice,” supra note 34 at 284 Google Scholar n. 15: “Another topic is derived from correlatives. If to have done rightly or justly may be predicated of one, then to have suffered similarly may be predicated of the other.... And if rightly or justly can be predicated of the sufferer, it can equally be predicated of the doer....”

40. See Irwin, Terence, “Reason and Responsibility in Aristotle” in Rorty, A.O. ed., Essays on Aristotle’s Ethics (Berkeley: University of California Press, 1980)117–55Google Scholar at 134.

41. On the idea of such a progression in Aristotle’s discussion, see Weinrib, Ernest, “Aristotle’s Forms of Justice” in Panagiotou, Spiro, ed., Justice, Law and Method in Plato and Aristotle (Edmonton, AL: Academic Printing and Publishing, 1987) at 134–37.Google ScholarThe progression would accord with Aristotle’s observation that justice is not a mean in the same way as the excellences of character (ME at I133b29-ll34a).

42. See Palsgrafv. Long Island Railroad, 248 N.Y. 339, 162 N.E.99 (1928). The relation between such problems of action description and the problems which tort lawyers call “proximate cause” is brought out especially clearly by Morris, Clarence, “Duty, Negligence, and Causation” (1952) 101 U. of Pa. L. Rev. 189 CrossRefGoogle Scholar at 196–98.

43. This, of course, is not true without qualification, since ignorance may itself be culpable. But from the point of view being described here, ignorance would presumably not be culpable unless it was itself, in some sense, “voluntary.”

44. I am following Ackrill, J.L., “Aristotle on Action” in Essays on Aristotle’s Ethics, supra note 40 at 93–101 Google Scholar. See especially 95–97.

45. There can seem to be an inconsistency between what Aristotle is saying here where the conditions for “blaming” are clearly controlling—“something will be unjust without thereby being an act of injustice, if it is not also voluntary” (1135a20-25)—and the earlier point, in the context of “special justice,” that corrective justice applies to a variety of voluntary and involuntary transactions (1131a1-10). However, in the latter passage, “voluntary” and “involuntary” qualify the nature of the parties’ relationship, not the offending conduct.

46. NE at 1170b5-9; cf. 1155a26-29(“If people are friends, they have no need of justice”): 1169b5-6, 1166a30-33.

47. Or of “natural"” causation. The point is that the scope of responsibility for the products of action would not depend on the sort of normative considerations by which tort law distinguishes between consequences (for which one is answerable) and mere fortuities. Whether this is coherent is another matter.

48. Cf. Aristotle, supra note 39.

49. For a classic common law articulation of the “objective” or “external” standard of negligence, see Vaughan v. Menlove, 2 Bing. (N.C.) 468, 132 Eng Rep. 490 (1837); see also Holmes, Oliver Wendell Jr., The Common Law, ed. Howe, Mark DeWolfe (Cambridge, MA: Harvard University Press, 1963) at 85–88.Google ScholarCuriously, the absence of certain kinds of “moral” excuses (i.e., those negating culpability, but not those negating agency) implied by the “objective” standard has led some commentators to view it as a form of “strict liability.” See e.g., Honoré, T., “Responsibility and Luck” (1988) 104 Law Quart. Rev. 530;Google Scholar Balkin, J., “The Crystalline Structure of Legal Thought” (1986) 39 Rutgers L. Rev. 1.Google ScholarBut taking a hint from Aristotle, one might also say that the objective standard expresses the notion of fault or wrongdoing that is appropriate to the consideration of a person’s action “in relation to another” rather than merely as it concerns the actor. Consider a remark from Thomas Nagel’s “Moral Luck” which has a related problem about negligence in view: “If the object of moral judgment is the person, then to hold him accountable for what he has done in the broader sense is akin to strict liability, which may have its legal uses but seems irrational as a moral position.” Nagel, , Mortal Questions (Cambridge: Cambridge University Press, 1979) at 31.Google ScholarThe complaint here is perhaps most clearly in focus when the frame of attention is filled by the actor's self-relation to her action; then it looks like the remedy is, in Nagel’s words, “to pare down each act to it morally essential core, an inner act of pure will assessed by motive and intention” (31). But, enlarging the frame, can we rationally explain to the victim of the action that his injury lacks moral significance because all that matters is the inner quality of the actor’s will? Keeping both parties in view can, in short, help us to see the “objective standard” for the consequences of one’s action as itself an expression of a certain type of ethical demand (i.e. justice), not merely of legal expediency. (I do not think Nagel disagrees with this.)

50. The one favored by aristocracies. See Aristotle, , Politics [published as The Politics of Aristotle], trans. Barker, Ernest (Oxford: Oxford University Press, 1946)Google Scholar at 1278a, 1279a; see also NE at 113la 25–29.

51. Oliver Wendell Holmes Jr., supra note 49 at 77.

52. As Weinrib puts it, from the point of view of corrective justice, the “subjective standard” is the mirror image of strict liability. See PL at 177–83.

53. Oliver Wendell Holmes Jr., supra note 49 at 86.

54. Y.B. 17 Edward IV. 2; quoted in Salmond, John, Essays in Jurisprudence and Legal History (London: Stevens and Haynes, 1891;Google Scholar reprinted by Fred B. Rothman and Co., 1987) at 139.

55. Cf. Jules Coleman, supra note 13 at 355.

56. Hans Kelsen’s version of this objection draws on Aristotle’s description of justice as a mean between having too much and too little. Taking this to imply that the judge who grasps the concept of justice would have a decision procedure for determining what is owed by one person to another (just as the geometer has a procedure for determining the midpoint of a line), Kelsen points out that for the idea of “too much” and “too little” to get a grip in the judicial characterization of a transaction, a doctrine of entitlement is needed; but once the parties’ entitlements are established, the idea of justice as the observation of a mean can drop out. Thus, for Kelsen, Aristotle’s characterization of justice as a mean is a tautology and—since the mesotes formula only gets its grip through established entitlement—a glorification of positive law. See Hans Kelsen, “Aristotle’s Doctrine of Justice” in Kelsen, Hans, What is Justice? (Berkeley: University of California Press, 1960) at 117–36.Google Scholar

57. The suggestion that the plaintiff has gained, ex ante, by forgoing the burden of precautions is made by Posner, “The Concept of Corrective Justice in Recent Theories Of Tort Law”, supra note 7. Aquinas entertains the same idea in passing (“the assailant and the murderer have more of what is esteemed good, inasmuch as they have done their own will and so seem as it were to have gained”), but he adds that here “too little is clear.” Aquinas, St.Thomas, Commentary on Aristotle’s Nicomachean Ethics, trans. Litzinger, C.I., (South Bend, IN: Dumb Ox Books, 1993) at 952.Google Scholar

58. For this objection, see Fletcher, George, “Corrective Justice For Moderns,” supra note 36 at 1668;Google Scholar Perry, Stephen R., “The Moral Foundations of Tort Law,” supra note 34 Google Scholar at 457; cf. David, Sachs, “Notes on Unfairly Gaining More,” in Hursthouse, Rosalind, Lawrence, Gavin & Quinn, Warren, eds., Virtues and Reasons: Philippa Foot and Moral Theory (Oxford, Oxford University Press, 1995) at 214.Google ScholarFletcher concludes that corrective justice does not apply in cases of risk-taking, where “there is no reason to assume that the injurer’s gain, either economic or psychic, is equal to the injury that happens to materialize.” However, this non-equivalence is not uniquely true of risk-taking; the point would extend to most of the transactions that Aristotle counts within the scope of his discussion (NE at 1131 a 1–10).

59. Weinrib offers a similar resolution when he speaks of “normative gain and loss” (PL at ch. 5). His proposal is discussed separately in the Appendix.

60. This is noted by Terence Irwin in Irwin, trans., NE at 334.

61. Note the explanatory addition in Aquinas’ paraphrase: “But when passion is measured, i.e.. according to the measure of justice, then what is more is called gain and what is less, loss.” St. Thomas Aquinas, supra note 57 at 953 (my emphasis). The equivalence of gain and loss, as 1 read this, belongs to the measure of justice and not, independently of the use of such a measure, to what is measured.

62. The terms “loss” and “gain,” as Aristotle says, “are derived from voluntary exchange.” NE at 1132b 11-15. The present suggestion—viz., that Aristotle’s extension of these terms is to be understood in terms of the conceptual centrality of the legal remedy—is reflected in the following comment by Aquinas: “It is evident that justice is a mean between gain and loss, that justice is simply the possession of an equal amount before and after a transaction, even an involuntary one as we see in the person who, when constrained by a judge, restores to another what he had in excess.” St.Thomas Aquinas, supra note 57 at 963 (my emphasis).

63. Posner, PJ 316.

64. Thus according to Posner, the passage in NE beginning “it makes no difference whether a good man …” states “a procedural rather than an ethical principle”: “it does not imply that [distributive] considerations should not affect the definition of rights or the determination of what sorts of act are unjust or wrongful. The point is that the judge is interested only in the character—whether it is wrongful—of the injury” (PJ at 315).

65 I am indebted here to John McDowell’s characterization of the structure of Aristotle's thought in “The role of eudaimonia in Aristotle’s ethics” Essays on Aristotle's Ethics, supra note 40 at 359–76, especially 364. On the large question of whether Aristotle intends to provide an external grounding or validation of ethics (and of whether he feels the need for one), I am following McDowell’s interpretation of Aristotle. See also McDowell, , “Eudaimonism and realism in Aristotle’s ethics”- in Heinaman, Robert, ed., Aristotle and Moral Realism (Boulder, CO: Westview Press, 1995);Google Scholar McDowell, , “Some issues in Aristotle’s moral psychology,” in Everson, S., ed., Ethics (Cambridge: Cambridge University Press, 1996);Google Scholar McDowell, , “Two Sorts of Naturalism” in Virtues and Reasons: Philippa Foot and Moral Theory, supra note 58.Google Scholar

66 ComparePosner, Richard, Economic Analysis of Law, second ed. (Boston: Little, Brown and Co., 1977) at 185–86.Google Scholar See infra note 96.

67 Hence the premise that opens Posner’s discussion: Correctivejustice is supposed to be “an overarching principle of justice, a political-ethical norm that could be used to ground legal obligations” (Wat 313).

68 On the nature of ethical content in Aristotle generally, see McDowell, note 65. For a suggestive Aristotelian picture of the relation between the understanding and application of legal concepts, see Gadamer, Hans Georg, Truth and Method (New York: Crossroad Publishing Co., 1982) at 278–305.Google Scholar

69 Cf. Fuller, Lon, The Law in Quest of Itself (Chicago: Foundation Press, 1940).Google Scholar

70 For example, Holmes’ denial that the law is a “brooding omnipresence in the sky.” For a more modest approach to the common lawyers’ idea, see Raz, Joseph, “The Inner Logic of the Law” in Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford: Oxford University Press, 1994) at 222–37.Google Scholar

71. Posner, “Corrective Justice in Recent Theories of Tort Law”, supra note 7 at 206.

72. See Ronald Dworkin, “Is Wealth a Value?” (1980) 9 J.of Legal Stud. 191. Of course, if it is conceded that wealth-maximizing measures are only worthwhile given that antecedent conditions of justice are satisfied, then the notion of “wealth-maximization” will be in a poor position to play the validating role Posner assigns to it.

73. NEat 1098M’5; cf.l095b5’10. On this remark, see Burnyeat, M.F., “Aristotle on Learning to Be Good” in Essays on Aristotle’s Ethics, supra note 40Google Scholar. Burnyeat’s translation.

74. Thus, instead of having to rely on practical judgment, we would have (what Kelsen mistakenly imagines Aristotle to be claiming to have: see note 56), a technical procedure for determining when one or another legal result is correct. Consider an opinion by Judge Posner: Ordinarily, and here, the parties do not give the jury the information required to quantify the variables that the Hand Formula picks out as relevant. That is why the formula has greater analytic than operational significance. Conceptual as well as practical difficulties in monetizing personal injuries may continue to frustrate efforts to measure expected accident costs with the precision that is possible, in principle at least, in measuring the other side of the equation—the cost or burden of precaution. For many years to come juries may be forced to make rough judgements of reasonableness, intuiting rather than measuring … [these] factors. McCarty v. Pheasant Run, Inc., 826 F.2d 1554 (7 Cir. 1987).

Given Posner’s understanding of the Hand Formula for negligence as a device of wealth maximization, the thought here may be rendered like this: (I) judgments of reasonableness are second bestto a proper economic analysis; (2) still, we can understand such judgments as aiming to get something right because economic theory gives us, in principle, an independent certification of their correctness; (3) theoretically represented, the correct result is the one that would be reached on the basis of correct calculations starting with the premise that the objective of all legal intervention is to maximize wealth. Anthony Kronman is helpfully alert to the contrast between prudential judgment and economic analysis in The Lost Lawyer: Failing Ideals of the Legal Profession (Cambridge, MA: Harvard University Press, 1993) at 230–40.

75. Cf. McDowell, supra note 65.

76. See Kant, Immanuel, The Metaphysics of Morals, supra note 6 at 56 [230]:Google Scholar “Right is … the sum of the conditions under which the choice of one can be united with the choice of anotherin accordance with a universal law of freedom.”

77. On these commonplaces, see John Finnis, supra note 34 at 161–64.

78. To be clear, 1 should say that 1 am leaving entirely aside in thisessay the vexed question (though not vexed enough in Weinrib’s discussion) of Kant’s own mature position on the question of the possibility of “grounding” morality.

79. Kant, Immanuel, Groundwork of the Melaphysic of Morals [published as The Moral Law], trans. Paton, H.J. (London: Hutchinson & Co., 1948) at 106 [445].Google Scholar

80. Kant, Immanuel, “On the Common Saying: ‘This May Be True in Theory, but it Docs Not Apply in Practice,’” in Kant: Political Writings, ed. Reiss, Hans, trans. Nisbet, H.B..second ed. (Cambridge: Cambridge University Press, 1991) at 79 (my emphasis).Google Scholar

81. See Aristotle, , Metaphysial, trans. Hope, Richard (Ann Arbor: University of Michigan Press, 1960) at 995a27; NE at 1145b4, 1146b5–7.Google Scholar

82. See PL 126–27. The problem was raised by Stephen Perry, from whose discussion I have benefitted. See Perry, , “The Moral Foundations of Tort Law”, supra note 34 at 483–88.Google Scholar

83. PR § 51; cf. § 44. Of course, it would be implausible to think that Aristotle understood properly as an expression of abstract will; his criticism of Plato’s abolition of private property involves a direct appeal to “the goods [the citizens] will be deprived of.” Aristotle, Politics, supra note 50 at II.5, I263b22. Insofar as Aristotle anticipates “abstract personality,” his political theory must thus seem inconsistent.

84. This might be compared to the puzzle about how responsible doings are possible, given (hat “moral” pressures to free responsibility from contingency and luck ultimately “pare down each act to its morally essential core, an inner act of pure will…” Thomas Nagel, “Moral Luck” in Mortal Questions (Cambridge: Cambridge University Press, 1979) at 31. Here the question is the reverse: not how, as pure agency, I can recognize myself in my doings, but how. as pure agency, I could (be made to) suffer at all. Compare PR § 91: “[T]he human being can certainly be dominated.... But the free will in and for itself cannot be coerced [gezwungen], except in so far as it fails to withdraw itself from the external dimension in which it is caught up ....”

85. In the critical terms Weinrib applies to the compensation rationale (see § 2), this would make the “normative position of the plaintiff decisive for both parties” (PL at 124).

86. Steven Perry suggests that there a further aspect of this problem. Tort law not only gives moral significance to losses affecting the person’s “embodiment,” but also generally makes doings wrongful only when they result in such losses. His point might be illustrated, I think, by a difficult remark of Kant’s: A “failure in the duty of respect [i.e., arrogance, defamation or ridicule] infringes upon a man’s lawful claim.” Kant, Immanuel, The Metaphysics of Morals, supra note6 at 256 [464].Google Scholar Cf. Kant, , Lectures on Ethics, trans. Infield, Louis (Indianapolis, ID: Hackett Publishing Co., 1930) at 214.Google Scholar Whatever the scope of such duties, the idea of infringing another’s claim is presumably to be restricted to cases where there has been some concrete injury to feelings or reputation: where A has not only insulted B (an ambiguous expression) but B has been insulted (suffered the insult) as well. However, it will be clear that A can breach duties of respect (constraints on willings in virtue of B’s status as a person) and thus insult personality, yet leave B unharmed and without any legally significant complaint. Cf. Perry, , “The Moral Foundations of Tort Law”, supra note 34 at 484.Google Scholar

87. If we follow Kant in thinking of legality as merely prohibitory, as abstracting from moral ends such as the well being of others (See PL at 96-97, 99, 111; cf. PR at § 38), then an obligation to make repair based on the differentiated value of another's possessions looks like a detour into morality where the concern with outcomes is a concern with another's freedom in a more positive sense. Cf. PR 112A, 113R. See Brudner, Alan, “Hegel and the Crises of Private Law” (1989) 10 Cardozo L. Rev. 949, especially 969–76Google Scholar, and Brudner, Alan, The Unity of the Common Law: Studies in Hegelian Jurisprudence (Berkeley: University of California Press, 1995), especially 167–68.Google Scholar

88. The dictum is typically cited when damages are unusually high due to some peculiarity of the plaintiff. See. e.g., Bartolone v. Jeckovich, 481 N.Y.S.2d 545 (1984).

89. As Hegel remarked, when right is based on abstract personality, the particular aspects of possession are “not yet… identical with freedom. What and how much I possess is therefore purely contingent as far as right is concerned” (PR § 49; cf. PR S 37A). Compare PR § 230.

90. This might recall Marx’s complaint that “[equal right] is … a right of inequality, in its content, like every right.” Marx, Karl, “Critique of the Gotha Program” in McLellan, David. ed., Karl Marx: Selected Writings (Oxford: Oxford University Press, 1977) at 569.Google ScholarI do not think there is anything mysterious here in itself. What gives the flavor of paradox here is the purported grounding of right in the equality of abstract persons. If concrete possessions are indeed external to the person, how does the obligation to respect personality come to mean an obligation to maintain the value of possessions? Arid if the relation between persons and concrete possessions is not to be thus prized apart, in what sense are persons equal? It looks as if the relation must be both external and internal at once.

91. On Hegel’s difficult view, the “truth” of right requires the standpoint of the “moral subject” (with its concern for the welfare of others) as it is located from the standpoint of “ethical life.”

92. As the following remark by Jules Coleman may suggest, one may findsuch a gap even if. unlike Weinrib and Posner, one sees no present intellectual prospect of being able to fill it: Ultimately, no defense of a conception of corrective justice will be satisfactory in the absence of a foundation for it. Of course, there will be different views about what counts as an appropriate foundation for a principle of justice; there will even be differences of opinion about whether foundational arguments are possible. On these matters. I am partial to the wisdom … that progress can be made on the penultimate questions in philosophy even as the ultimate ones remain unresolved. Risks and Wrongs, supra note 13 at 478.

This contrast between ultimate and penultimate questions in philosophy is fleshed out by Coleman in terms of a distinction between foundational and “middle-level” theory (see ibid, at 8–9). The latter involves reflection about the law as an existing social practice, and it attempts to identify the norms of the practice at a higher level of generality, moving back and forth as need be between features of the practice and more general statements of principle. “Foundational theory” is described by Coleman simply in terms of an indefinite expectation: It will one day validate theresults of middle level theory. It can be tempting to think that Aristotle would count as a middle level theorist in Coleman’s sense. But Aristotle apparently lacks the sense—expressed by Coleman about his own middle level endeavor—that his reflections are merely second-best:

Middle level theory … lacks the power that being committed to a foundational view has. If I believed, for example, that utilitarianism was the correct political theory, then I would have a tool I could bring to the practices I hoped to understand and endorse. It would give me a kind of power that one who does middle-level theory simply does not possess (Risks and Wrongs, supra note 13 at 441).

Coleman thinks that in lacking a foundational view, he lacks a privileged form of rational insight. That does not seem to be Aristotle’s view. Indeed, in Coleman’s sense of the word, I do not think that Aristotle means to present a “theory” at all.

93. Another natural response to formalism would be skepticism, as can perhaps be seen in Weinrib’s drawing from Roberto Unger’s “critique of formalism” the very image of what he wishes to defend. See PL at 23-24, 45, 230; Mangabeira Unger, Roberto. The Critical Legal Studies Movement (Cambridge, MA: Harvard University Press, 1986) at 1–14.Google Scholar

94. The good point and the mistake can be found side by side in Calabresi, Guido. “Concerning Cause and the Law of Tons”,supra note 5 at 105.Google Scholar My understanding of the alternative, non-reductive possibility suggested in this and the next two paragraphs has benefitted from Wiggins, David, Needs, Values, Truth: Essays in the Philosophy of Value (Oxford: Basil Blackwell, 1987) especially 66–68.Google Scholar

95. Consider, in this light, a typical remark of Kant’s:

By the well-being of a state must not be understood the welfare of its citizens and their happiness; for happiness can perhaps come to them more easily and as they would like it to in a state of nature (as Rousseau asserts) or even under a despotic government. By the well-being of a state is understood, instead, that condition in which the constitution conforms most fully to principles of Right; it is that condition which reason, by a categorical imperative, makes it obligatory for us to strive after. The Metaphysics of Morals, supra note 6 at 129 [318].

I take it this says that the object of civic association is well being, only not that kind of well being (viz., ‘welfare,’ ‘happiness’) which is, in principle, available in the state of nature: Civic association brings about a new kind of human good. Weinrib is right, 1 think, to question the received contrast between Aristotle and Kant as respective instances of teleological and deontological ethics. But is this because Aristotle’s remarks on justice compel us to read him as a proto-deontologist? Or is it because Kant’s remarks on Right show him to be not only pursuing a recognizably classical inquiry into the nature of the good but also refiguring the Aristotelian thesis (see Aristotle, Politics, supra note 50 at I.ii.8-10) that a central element of the good is not available to the person who is outside the justice of the polis? These matters deserve far more attention than 1 can give them here.

96. PL at 5. Posner’s main concern in the passage Weinrib cites is to ask whether there is really a “fundamental inconsistency between morality and efficiency”: Not only love, but honesty and trustworthiness also “enhance an individual’s ability to maximize his satisfactions” by reducing “the costs of transactions.” Economic Analysis of Law, supra note 66 at 185–86. By “inconsistent,” Posner apparently means the possibility that moral requirements might turn out to be economically sub-optimal. But elsewhere he suggests that moral requirements also have their “roots in inefficiency.” See Posner, , “A Theory of Negligence”, supra note 12 at 33.Google Scholar

97. See Raz, Joseph. The Morality of Freedom (Oxford: Oxford University Press, 1986) at 352–53.Google Scholar

98. Alan Brudner suggests, rightly I think, that the case for tort law would involve seeing that, on any appropriately expansive notion of well being, the idea of unlimited social insurance against loss is, without any independent notion of wrongdoing, self-defeating. See Brudner, Alan, The Unity of the Common Law: Studies in Hegelian Jurisprudence, supra note 87 at 204–10.Google Scholar

99. PL at 228; see also PL at 46 and Weinrib, . “Understanding Tort Law”, supra note 8 at 492.Google Scholar

100. How a grounding of private law which “starts with agency and shows its necessary embodiment in a juridical order of abstractly equal agents” (PL at 83)(or again, which “obliges lawmakers”: PL at 87) can claim to leave room for such a political choice may not be easy to see. Hegel’s argument that the standpoint of abstract right must be superseded on account of its internal deficiencies is often understood as an attempt to create such room for the modern ascendency of public law.

101. The difficulty seems exacerbated by Weinrib“s speaking ofcoherence as something “valued” by sophisticated legal systems. If coherence is a necessary condition of justification (§ 7), how can it figure alongside other values in political deliberation?

102. “Suppose … you negligently injure me. A comparisonof my present and my previous condition reveals that I am materially worse off than I was before. This is the factual aspect of the loss. In addition, however, I am also worse off than 1 should be, given the norm against negligent injuring. The loss considered from the standpoint of the relevant norm is the normative aspect of the loss” (PL at 115).

103. “A party may realize: (1) a normative gain but no factualgain: if I negligently injure another, I have acted wrongly but no holding of mine has been improved by the wrong … (3) a normative loss, but no factual loss: if someone trespasses on my property without impairing its condition, a common law court may award me nominal damages to mark the breach of a norm, despite the absence of actual damages … ” PL at 116).

104. See ibid.

105. See, e.g., PLM 116–17; Weinrib, , “The Gains and Losses of Corrective Justice”, supra note 34 at 285–86.Google Scholar