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Published online by Cambridge University Press: 09 June 2015
A specter of disunity haunts the common law, threatening to throw property, contract, tort, and penal law into a crisis, where competing paradigms stand intransigently opposed, undermining any claims of coherence and giving sober proof that legality is a battleground of equally unjustifiable ideologies where only force wins out at the end. The impending crisis pits advocates of liberalism, affirming the primacy of the right over the good, against communitarians, upholding the priority of commonly shared ends embodied in an historically given community. Yet although the conflict parallels what many take to be the exhaustive options of ethical thought, the difficulty extends beyond theoretical dispute into the actual practice of common law, where at every turn, tendencies promoting welfare clash with tendencies upholding the formal right of ownership. In face of such division in both theory and practice, the dangers of idealism seem hardly surmountable by fidelity to law or by reflective equilibrium, for if disunity pervades legal thought and convention, neither appeal to the given can locate a coherent kernel in the conflicted shell.
1. Hegel, G.W.F., Elements of the Philosophy of Right, ed. by Wood, Allen W., trans. Nisbet, H.B. (Cambridge, UK: Cambridge University Press, 1991) paragraph 121ff at 149ff.Google Scholar
2. Ibid., paragraph 117 at 144.
3. Ibid., paragraphs 121–23 at 149–50.
4. Ibid., paragraph 131 at 158.
5. Ibid., paragraphs 137, 141 at 164–65, 185–86.
6. Ibid., paragraphs 72–80 at 104–13.
7. Ibid., paragraphs 90, 91, 96, 101 at 119–20, 122–23, 127.
8. Hegel does address tort liability in paragraph 116, so as to contrast the strict liability of owners for damage caused by their property with the more limited responsibility of the moral agent, who, as paragraph 117 explains, can only be blamed for what is done on purpose with knowledge of the circumstances of the action. See ibid., paragraph 116–17 at 144.
9. Ibid., paragraph 218 at 250–51.
10. I have attempted to fulfill part of this project in Law In Civil Society (Lawrence: University Press of Kansas, 1995).