University of Toronto Law Journal

Arthur Ripstein

EDITOR’S NOTE

Several years ago, Jeremy Horder remarked in the pages of this journal that ‘[i]n recent years, Canadian scholars have led the world in developing tort theory.’1 Over the past three decades, Ernest Weinrib’s work has been at the forefront of that leadership. Not only has he reinvigorated discussions of particular aspects of tort theory. He has fundamentally reshaped scholarly understandings of the relation between legal doctrine and legal philosophy. This special issue of the University of Toronto Law Journal honours Weinrib’s many contributions. The immediate occasion is the Canada Council’s decision to award him the Killam Prize, which is ‘intended to honour distinguished Canadian scholars actively engaged in research in Canada . . . The prizes are not related to a particular achievement, but rather are given in recognition of a distinguished career and exceptional contributions.’2 Weinrib’s distinguished career and exceptional contributions are outlined in detail in Bruce Chapman’s contribution to the special issue. The Canada Council’s materials regarding the Killam Prize explain that ‘[t]he prizes are awarded with the expectation that the prize recipients will continue to contribute to the Canadian research community.’3 The council’s expectation has been immediately and richly realized in this case. Rather than wanting a celebration of the prize, or a special issue in his honour, or to give a lecture summarizing his own work to date, Weinrib responded to the news by giving a public lecture developing a new set of ideas. The text of that lecture forms the centre-piece of this issue and exemplifies the virtues that make him worthy of the prize. Bruce Chapman provides an introduction to the lecture in the form of an exploration of Weinrib’s relation to each of the worlds of legal practice, legal education, and the broader university. When the Journal approached Weinrib about publishing the lecture together with papers honouring him, he suggested that the papers be solicited from several of his former students who have also made substantial contributions to the theory of private law. With characteristic modesty, Weinrib insisted 1 Jeremy Horder, ‘Can the Law Do without the Reasonable Person?’ 55 UTLJ (2005) 253. 2 Canada Council for the Arts, Killam Prizes (16 February 2009), online: Canada Council for the Arts ,http://www.canadacouncil.ca/prizes/killam/nf127281699611562500. htm.. 3 Ibid. (2011), 61

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ii UNIVERSITY OF TORONTO LAW JOURNAL that the other papers not concern themselves with his work but rather with issues in private law. *** Legal philosophy is standardly divided into two sub-topics: analytical jurisprudence, charged with providing a perspicuous characterization of the concept of law, and normative jurisprudence, charged with identifying moral principles that properly animate various departments of law. Each of these is supposed to be distinct from merely doctrinal study – which is concerned to report what the law on some specific matter is, within a given jurisdiction – and even from more abstract doctrinal study that is supposed to be informed by concepts drawn from other disciplines. These distinctions – analytical/normative, philosophical/doctrinal – are comparatively recent developments in the history of Western legal and philosophical thought. The great thinkers of the natural-law tradition, stretching from Aristotle in antiquity through Maimonides, Aquinas, and the Spanish scholastics and on to Grotius, Pufendorf, Kant, and Hegel, all seemed to think that it was part of their job and of getting an adequate account of law and the moral principles of politics to talk about such matters as the resolution of a claim for damages, the nature of contract formation, the extent to which legal rules were changed or suspended by dire circumstances. With the exception of Grotius, none of these thinkers practised law, and they did not see their task as one of providing a clarification of doctrine for those who did. At the same time, they all seemed ready to draw on the positive law in developing their accounts, working tacitly with the assumption that Kant made explicit in his remarks that the proper approach to questions of right is to seek ‘the sources of such judgments in reason alone, so as to establish the basis for any possible giving of positive laws (although positive laws can serve as excellent guides to this).’4 Among Ernest Weinrib’s many significant contributions to contemporary legal thought is a sophisticated development of these natural law insights into a distinctive approach to the law that rejects the standard dualism between analytical and normative inquiries. Both in his earlier work as celebrated by the other contributors to this issue and in the Killam lecture published here, Weinrib proposes to understand the law in its own terms, taking doctrine at face value and trying to understand the ways in which participants in a sophisticated legal system reason

4 Immanuel Kant, The Metaphysics of Morals, translated by Mary Gregor (Cambridge: Cambridge University Press, 1991) at 6:230. Page citation is to volume 6 of the Prussian Academy edition of Kant’s works, upon which Gregor’s translation is based. Academy page numbers appear in the margin of Gregor’s translation.

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within the concepts that it provides, and to explain how the distinctions that it draws figure in its ordering of conduct and resolution of disputes. Weinrib’s approach straddles both the standard distinction within legal philosophy and the distinction between legal philosophy and doctrinal scholarship. He treats law as a distinctive way of considering human interaction, with its own internal normative structure. It does not, however, have that structure simply in the abstract but only as realized in particular doctrinal ideas and institutions. The fundamental organizing idea of all of private law is a focus on the relation of the parties to a private action. When plaintiff comes before a court alleging that defendant has wronged her, plaintiff asserts a right as against defendant and the entire pattern of the court’s reasoning is structured by the plaintiff/ defendant relation. Any other factors that might be brought to bear on the question of liability must be integrated into this correlative framework. Weinrib characterizes his position as formalist because it focuses on the conceptual structure of reasoning through which cases in private law are adjudicated. Before Weinrib’s work, ‘formalism’ was largely a term of abuse, generated by the American legal realists of the early part of the twentieth century. The formalist was often presented as someone who thought that every legal case could be decided entirely deductively based only on a small set of concepts. Remarkably, through the realists and their followers, this caricature managed to convince many scholars that none of the traditional doctrinal apparatus of tort law should, or even could, be taken at face value. Instead, it was to be understood as a set of rhetorical devices through which a cynical judge might package results thought to be desirable on other grounds, usually going under the portmanteau name of ‘policy.’ Weinrib’s formalism is nothing like the realist parody; rather, the structuring ideas of private law organize the ways in which the dispute between two parties can be resolved exclusively as a dispute between those parties. Drawing both on the formalist poetics of Northrop Frye and on the leading figures of the natural-law tradition, Weinrib explores the type of reasoning that is central to private law, explaining how it can be brought to bear on particulars without contending that it can somehow apply itself. As Bruce Chapman explains in his contribution to the special issue, Weinrib’s formalism is distinctive in aspiring to understand the law from the inside, as a system of thought in which its participants engage. In his great book, The Idea of Private Law, he provides a compelling articulation of this framework and develops its implications in detail through an examination of the central issues of tort doctrine. In more recent work, Weinrib has not only expanded his examination of tort but extended the idea of corrective justice to develop the pre-eminent work on the law of unjust enrichment.

iv UNIVERSITY OF TORONTO LAW JOURNAL Weinrib’s own contribution to this volume exemplifies this approach to the law. Beginning with the core idea of correlativity, Weinrib considers the implications of the fact that private rights can only be consistently realized within the institutional order of a mature legal system. One of the hallmarks of Weinrib’s earlier work was his distinctive explanation of the need for, and place of, objective standards in a regime of liability in terms of the equality of the parties before the court. Neither plaintiff’s peculiar susceptibilities nor defendant’s specific limitations unilaterally set the terms of their interaction. Instead, those terms must be measured by a standard common to both, a standard that can only be realized in a public legal order. Weinrib’s lecture examines the changes in private law that are necessarily worked by the place of public institutions as interpreters and guarantors of rights between private persons. He examines the way in which a public legal order necessarily structures its own doctrinal requirements, rendering them both systematic and public. These twin requirements of systematicity and publicity, in turn, generate explanations of what many have regarded as either an anomalous aspect of legal doctrine or as evidence that legal doctrine is concerned not with how things stand between the parties but rather with the promotion of either virtue or the realization of beneficial consequences. Focusing on three examples, the doctrine of market overt, which enables a bona fide purchaser for value to acquire good title from a thief, the tort of inducing breach of contract, and the privilege to use or destroy what belongs to another in order to preserve property, Weinrib provides a framework for avoiding what Kant calls ‘a common fault . . . of experts on right,’5 the confusion of the systematic requirements of a legal system with the rights of the parties conceived apart from the system. I mentioned Weinrib’s insistence that the other papers in the volume be about private law and not about his work in particular. Each of the contributors has honoured this mandate. Yet, given his pre-eminent place in the field, even the most scrupulous avoidance of direct engagement with Weinrib’s work ultimately engages with its fundamental themes. Alan Beever’s essay examines the relation between formalism in law and formalism in music, showing both how characteristic misunderstandings of each operate in parallel fashion and how a proper understanding of the task of a formal theory captures what is distinctive about each of music and law. Beever also shows the limitations of non-formalist thought about each domain. Developing the analogy, he argues that non-formalist legal scholarship in unable not only to comprehend doctrine, but even to engage in reasoning about legal questions.

5 Ibid at 6:297.

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Peter Benson looks at a topic outside of tort law, focusing on the doctrine of consideration in contract. The doctrine of consideration has been a central landmark for contract doctrine for centuries; yet, as Benson notes, most contemporary scholars regard it as baffling or even anomalous. Following Weinrib’s general approach of trying to understand the law on its own terms, Benson looks to the doctrinal structure of consideration, focusing, in particular, on the way in which mutual promises count as a form of acquisition in a way that a unilateral promise cannot. Explaining how this formal feature of acquisition does not depend on the value of the things promised, Benson provides an account of the distinctive sense in which one person acquires another’s future performance through a promise only if consideration is given in return for it. Alan Brudner’s contribution engages the issue of the relation between private right and public law that forms the focus of Weinrib’s Killam lecture. Examining the law of property in detail, Brudner argues that an adequate account of property as a matter of private right that one person has against another must give that right further significance within a public legal order. So understood, property rights cannot be negated or even restricted without justification. Contrasting the approaches of two of the central thinkers who inspired Weinrib’s work, Brudner presses the case for the superiority of Hegel’s approach to that of Kant. Martin Stone takes up legal positivism, a topic that is not ordinarily thought of as part of the theory of private law. Stone points out that all of the figures of the classical natural-law tradition not only acknowledged but actively insisted that law required positive legal institutions. All of them began with discussions of private law as an exemplary case in which this was plainly so. Stone’s central contention is that the positivism introduced into legal thought by Jeremy Bentham is not, despite official pronouncements, actually a novel thesis about law at all. Instead, it rests on a distinctive view about morality, according to which morality’s central concepts do not involve anything like rules but instead consist entirely of a single directive to bring about beneficial consequences. Stone argues that developments in the theory of private law initiated by Weinrib enable a distinctive understanding of law’s positivity that illuminates the moral structure of private law. *** It is a peculiar feature of philosophy in general, and legal philosophy in particular, that outstanding work does not always generate widespread agreement. Weinrib’s work is, of course, no exception to this, and the other contributors to this celebration of his achievements serve to advance his vision without necessarily agreeing with everything that he has said. As I noted earlier, all of them are former students. Perry,

vi UNIVERSITY OF TORONTO LAW JOURNAL Brudner, and Benson were students at the Faculty of Law in Toronto in the 1980s, as Weinrib was first articulating his distinctive conception of private law. Stone was a student when Weinrib spent a year at Yale as a Visiting Professor. Beever came to spend a year in Toronto as an MSL student at Toronto in the late 1990s. Weinrib’s influence reaches far beyond those who were officially his students, those who have heard him speak at other institutions, and those who have studied his work. Over the years, I have encountered many scholars who describe their experience of being bewildered, as law students, by their private-law courses; when they sought to articulate their puzzlement, they say, they were directed by their teachers to read Weinrib’s work. Weinrib’s role as a teacher goes well beyond his explicit interaction with and effects on students registered in his own or other classes. When I first met Ernie and encountered his work, my response was probably fairly typical among philosophers, something like the way in which the philosopher Jerry Fodor responded, by his own account, to his initial encounter with cognitive psychology as a subject. It seemed like the sort of topic that a properly trained analytic philosopher could sort out in a couple of hours. That was in 1987. A few months later, I had a couple of hours to spare. I am still at it, as are so many other people who have found their intellectual trajectory shaped by an encounter with Weinrib’s work. Although I was never officially a student of Weinrib’s, I can say with confidence that he is the teacher from whom I have learned the most. As a colleague, he has not only helped to set the intellectual agenda but, just as significantly, raised the intellectual standards for the Faculty of Law as a whole. That is why ‘[i]n recent years, Canadian scholars have led the world in developing tort theory.’6

6 Horder, supra note 1.

Bruce Chapman*

ERNIE’S THREE WORLDS†

This article is the text of an introductory address presented at the Faculty of Law on 23 October 2009 in celebration of Professor Ernest Weinrib’s receiving the 2009 Killam Prize, Canada’s most distinguished annual award for outstanding scholarly achievement. It offers a very personal interpretation of the contributions that Weinrib has made to private-law scholarship over the last thirty years and is organized around three closely related questions that he has addressed in his work: What is a theory? What is a theory of law? and What is a theory of private law? His answers to these different questions land Weinrib in three different worlds – the world of the university, the world of the law school, and the world of legal practice – but it is Weinrib’s special contribution as a legal philosopher to have brought all three much closer together. Keywords: internal theory/formalism/equality between persons/public justification/corrective and distributive justice/tort theory

This is a wonderful occasion. We are all here to celebrate the career of someone who has a very special place in the Faculty of Law at the University of Toronto. And last night, at a special dinner in his honour, a number of Ernie’s colleagues and former students at the faculty took the time to tell him what he has meant to them personally and to all of us collectively, over the years – how he holds a very special place in our hearts and, frankly, a very firm grip on our minds as well. But today, I want to think much more generally or broadly about Ernie’s place in the world. Indeed, I want to think, and hopefully get you to think, about Ernie’s place in three different worlds, worlds that sometimes seem far apart, but worlds that Ernie’s scholarship has somehow managed to bring much closer together. Notice what I do not say: I do not say that he has united these three worlds into one so that the differences among them are lost to some homogenizing force that obliterates the special contributions of each. As we all know, that is never Ernie’s way. Rather, his scholarship shows how each of these three worlds exercises a reciprocal and illuminating effect on the other two, or, as he has put it in

* Faculty of Law, University of Toronto. † This is the published version of an introductory address presented at the Faculty of Law on 23 October 2009 in celebration of Professor Ernest Weinrib’s receiving the 2009 Killam Prize, Canada’s most distinguished annual award for outstanding scholarly achievement. I am grateful to Arthur Ripstein for helpful comments and to Ernie Weinrib for over thirty years of scholarly inspiration. (2011), 61

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180 UNIVERSITY OF TORONTO LAW JOURNAL a slightly different context, ‘as a mirror does on entering into a hall of mirrors.’1 What are these three worlds that Ernie has brought so close together?2 The first is the world of legal practice. This may come as a surprise to some; one might have thought that Ernie’s philosophical scholarship would be somewhat detached from the everyday activities that are so consciously governed by law, where, for example, a lawyer offers legal advice to a client or a judge determines the rights and duties of litigants. But, as I hope to demonstrate before I am finished today, it is precisely the fact that Ernie’s work does bring him into contact with this world of legal practice that makes him special as a legal philosopher. Ernie’s second world is the world of the law school and the study of law. This may seem obvious enough; this is the world that provides Ernie with his most familiar backdrop, the world in which we see him every day. But that is to mistake Ernie’s occupation of any of these worlds as something geographical. It isn’t; Ernie’s occupation of these different worlds is intellectual. Ernie isn’t simply at the law school; he’s of the law school. Where all of us – students, faculty, staff, friends, visitors – can claim from time to time to be at the law school, only some enter the law school as a special intellectual space qua law school, and Ernie is one of those. This is not to say that others who are at the law school are not also engaged in serious intellectual activity there. But they don’t always occupy the special intellectual space qua law school that Ernie does, a point that relates, incidentally, to my earlier claim about Ernie’s coincidental intellectual occupation of the first world, the world of legal practice, a world, of course, in which he is seldom observed geographically. Now, admittedly, this must all sound a little mysterious. But bear with me; I hope to clarify the point before I’m done. The third world that Ernie occupies is the world of university study. Indeed, it is in this context that I first heard Ernie speak of the distinction between being at some place and being of it. Ernie likes to say that the law school is not only at the University of Toronto, it is (or certainly should be) of it as well. What Ernie means by this is that our study of law here must be worthy of the university, an institution of higher learning committed to the study of ideas and our intellectual inheritance more generally. Ernie holds the rank of University Professor here at the University of Toronto, one of only thirty-eight such designated positions. That is 1 This phrasing of the idea comes from a paper that Ernie sent to me many years ago: Ernest J Weinrib, The Law’s Self-Understanding (1986) [unpublished] at 9. This wonderful paper seems never to have been submitted for publication, something that indicates the high personal standards that Ernie has always brought to his published work. If only there were a little more of this self-discipline around! 2 These three worlds track the confluence of three activities where, Ernie has argued, legal education is properly to be found; see Ernest J Weinrib, ‘Can Law Survive Legal Education?’ (2007) 60 Vand L Rev 401.

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evidence enough for the claim that Ernie is of the University and not just of the law school. But Ernie is also the Cecil A Wright Professor of Law at the law school and, as anyone who is familiar with the history of the Faculty of Law will already know, the name ‘Caesar’ Wright is synonymous with the solid establishment of the modern law school, not only as a professional school of law, but also as an integral department within the university.3 So Ernie’s credentials speak loudly to the fact that, not only is he of the university as a University Professor, he is also of the university as a law professor committed to the study of law from a standpoint internal to the very nature of university study itself. How is it that Ernie brings these three different worlds into close relation to one another? The only way to find a proper answer to that question is by immersing oneself in Ernie’s scholarly writing over the last three or four decades. You probably won’t have time for that this afternoon before Ernie’s talk. But maybe I can offer a few guideposts for your undertaking that heady exercise at some future date by suggesting now that Ernie’s scholarship over the years has addressed three closely related questions. Further, the answer to each one of these three related questions lands differently, albeit in close intellectual proximity to the others, in one of Ernie’s three different worlds. The first question, and the one that engages most directly the world of the university and the study of ideas most generally, is ‘What is a theory?’, That is, what is it to have a theory or understanding of anything? The second question is ‘What is a theory of law?’ Not surprisingly, this is the question that most directly engages Ernie’s second world, the world of the law school. And the third question, the one for which the answer is most relevant to the world of legal practice, is ‘What is a theory of private law?’ or, even more specifically (since so much of Ernie’s scholarship has focused here), ‘What is a theory of tort law?’ So three questions for three worlds, but the reason for thinking that there might be a way (Ernie’s way) to provide for an intellectual integration of the three worlds is, perhaps, a little clearer now. These three questions form a unity in that the later questions presuppose the earlier ones and the earlier ones, in seeking out a given subject matter as their intelligible object, naturally lead us on to the later ones. Let us take each question in turn. The first question, ‘What is it to have a theory or understanding of anything?’ – a question that finds its home most comfortably in the world of the university – admits of two possible approaches. One of these approaches is exemplified, and self-consciously advanced, by the 3 For a detailed account of the shaping of the modern law school and Cecil A. Wright’s role within it, see C Ian Kyer & Jerome Bichenbach, The Fiercest Debate (Toronto: Osgoode Society, 1987).

182 UNIVERSITY OF TORONTO LAW JOURNAL late Robert Nozick, the Harvard philosopher, in his book Anarchy, State and Utopia.4 In this book, Nozick attempts to provide an account of the political state, where such an account, Nozick argues, can only justify a minimal state, a state where there exists only minimal regulations and no real redistributive taxation, a political state that libertarians might like. I will come back to the content of Nozick’s account in a moment, but for now, I want to emphasize the method that Nozick so self-consciously employs for explaining, or understanding, the political realm. Nozick begins his book with a discussion of state-of-nature theory, that is, with a pre-political account of human existence in a state of nature, which is to say a state without politics. This is no accident of political philosophy or fashion. For Nozick, the best way to understand or explain something is from the outside, or externally, and that is exactly what state-of-nature theory, as a pre-political theory, promises to provide. Of this form of explanation he says, [T]he illumination of the explanation will vary directly with the independent glow of the nonpolitical starting point . . . and with the distance, real or apparent, of the starting point from its political result. The more fundamental the starting point . . . and the less close it is or seems to its result (the less political or statelike it looks), the better. It would not increase understanding to reach the state from an arbitrary and otherwise unimportant starting point, obviously adjacent to it from the start.5

So, for Nozick, the best way to understand or theorize something is from the outside. It is as if this external and distant view of the subject matter provides some sort of perspective on it that one would not otherwise have from the inside or from a position too close or adjacent to it. Ernie’s view of an appropriate understanding of some subject matter is the exact opposite of this. To try to understand something entirely from the outside is, for Ernie, to try to understand what something is in terms of what it is not. It is, by way of the explanans or explanation, to do a kind of conceptual violence to the explanandum or thing to be explained. A subject matter understood externally is not so much understood as transformed.6 Indeed, it might be even worse than that. For, as Ernie recognizes explicitly, there is an inherent incompleteness in the method of external explanation, something that dooms it from the start.7 For suppose some

4 Robert Nozick, Anarchy, State and Utopia (Oxford: Basil Blackwell, 1974) at 6 –9. 5 Ibid at 7 [emphasis added]. 6 See Ernest J Weinrib, ‘Legal Formalism: On the Immanent Rationality of Law’ (1988) 97 Yale LJ 949 at 961 [Weinrib, ‘Legal Formalism’], characterizing an external understanding of some subject matter as akin to ‘a foreign occupation that serves its own interests.’ 7 Ibid at 963.

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phenomenon A is to be explained externally by way of some external factors or phenomena B; how, then, are we to understand B? Presumably externally as well; that is, under the guise of factors or phenomena C. Which themselves, one guesses, are also to be externally explained. And so on. Somewhere along this regress, if it is not to be infinite, we must stop. But, having stopped, if we now have an explanation, that must be because this last explanation is itself grounded, not externally, but internally. So an internal explanation must be possible (and fundamental) after all, and one begins to wonder if, beyond mere dogmatic assertion, there was any reason not to attempt such an internal explanation from the very beginning, that is, at A. The other possibility, of course, is that we have ended up with no explanation at all because we have ended only with an explanation that, because it has no external or internal explanation of its own, is itself unexplained. This is hardly a satisfactory state of affairs. Instead, Ernie would have us explain or understand something from the inside. This is to understand something in terms of what it is, not in terms of what it isn’t. You have to admit that this does sound a bit more promising. But now you will worry, with Nozick, that to provide an understanding of subject matter A as A, or in terms of A, is not to provide much understanding of it at all. Certainly, there does not seem to be much ‘perspective’ here; indeed, such an explanation seems perilously close to being circular. But, for complex phenomena, the circle need not be so tight. A subject matter worthy of university study is likely to have many component parts which a good internal explanation, or coherence theory, can render intelligible. So some part A of the subject matter might be explained in terms of some other part B of that subject matter, and that part B might in term be explained by some further part C. Now, if C is in its turn explained by A, or if (more likely) each part A, B, or C is simultaneously explained by all the other parts, as parts of a single whole or (as Ernie puts it) ‘a self-contained circle of mutual reference and support,’8 then we have an internal explanation of our subject matter that neither leads to an infinite regress nor explains what something is in terms of what it isn’t. It is also, incidentally, a method of explanation with a hefty intellectual pedigree, being the method of theorizing a subject matter that traces a thoughtful line from Aristotle through Aquinas to Kant and Hegel. I need to move on to Ernie’s other two questions, but before doing so I want to say something about Nozick’s account of the minimal state. Those political theorists who have not much liked where Nozick’s theory has 8 Ernest J Weinrib, ‘The Jurisprudence of Legal Formalism’ (1993) 16 Harv JL & Pub Pol’y 583 at 593 [Weinrib, ‘Jurisprudence’].

184 UNIVERSITY OF TORONTO LAW JOURNAL ended up and who would support a more developed state that is committed to redistribution and a thicker sense of community have often tended to locate the problem in Nozick’s method of theorizing. Begin with the state of nature or (as Nozick does elsewhere9) with an account of Robinson Crusoes, each living in isolation from one another on separate islands, and why should we be surprised that Nozick ends up with something that is so minimally political?10 To get to the political, one must begin with the political, the argument might go. So here, too, is an argument, one offered up by the political theorist, that might worry about the inadequacies of an external explanation, that is, of explaining what something is in terms of what is isn’t. But it is worth noticing some of the details about Nozick’s minimal state. He ends up offering an account of what he calls ‘justice in acquisition,’ ‘justice in transfer,’ and ‘justice in rectification.’11 He might as well have offered his theory as an account of the three private law subjects of, respectively, property, contract, and torts. So the political theorist’s criticism that Nozick’s external theory provides for an impoverished account of politics and the state is really reducible to a criticism that the law, or at least private law, offers an impoverished account of politics and the state. And that certainly seems as if it must be true. Politics and law are simply different phenomena, and an understanding appropriate to each (for Ernie an internal understanding) would not properly attempt to see one exclusively in light of the other.12 This provides for a nice segue into Ernie’s second question, the question that finds its proper place in the law school, that location in the university where the focus is on the study of law and legal interactions in particular: ‘What is a theory of law?’ My last remarks suggest it will not be a political theory (or, at least, not without some significant refinements as to what that might mean). For now the method of theorizing begins to look more clear: we need to look for some distinctive attributes of law, attributes that constitute law as something with its own character, 9 Nozick, supra note 4 at 185. 10 See, e.g., Thomas A Spragens, Jr, ‘The Limits of Libertarianism’ in Amitai Etzioni, ed, The Essential Communitarian Reader (Lanham, MD: Rowman and Littlefield, 1998) at 32. 11 Nozick, supra note 4 at 150– 3. 12 The critical legal studies movement, which was active in the 1980s, could be pretty much defined by its rejection of any possible distinction between law and politics; see, e.g., the essays in David Kairys, ed, The Politics of Law (New York: Pantheon Books, 1982). One could read Weinrib, ‘Legal Formalism,’ supra note 6 at 952, as having been written partly in response to this idea. Also, see the careful attention he gives to Roberto Unger’s influential, ‘The Critical Legal Studies Movement’ (1983) 96 Harv L Rev 561, in Ernest J Weinrib, The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995) at 23– 4 [Weinrib, Idea], where, in response to a tripartite organization of the issues provided by Unger, he begins his defence of the distinction between law and politics.

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attributes that set law apart from other things we know to be different and that (because we know this) are subjects for study elsewhere in the university, like politics, ethics, history, and economics. This is not to say that these other subjects cannot offer insights about the law (for example, what historical or psychological forces might best explain how legal actors behave, or whether what we observe happening in the law, or in a particular court, reflects ethical considerations), but to the extent that these are insights about the law, they presuppose the intelligibility of a subject matter – law – with respect to which they offer these insights; that is, they presuppose a theory of law. Now, I cannot possibly (and not just for lack of time) catalogue here the distinctive attributes of law that Ernie would identify as constituting it as a separate subject matter worthy of its own theoretical study at a university.13 However, we do know that because we are looking for a set of attributes worthy of a theory, the set will be a unified or coherent set, expressive of a single complex. So let me move directly up to this level and suggest what Ernie sees as that complex of ideas that sets law apart as a subject. Here’s a possibility: law attends to the relations that exist between persons as a normative matter (or as a matter of justification).14 This may sound a bit lame, but there is already a good deal in it once we parse out its three components. That law attends to the relations between persons, for example, already sets it apart from ethics, which attends much more to the internal states of mind of a person, something that can vary for the person without varying that person’s relations to others. But law is concerned not so much with what (inside) you meant to do but rather with what you did, or the public significance (or meaning) of what you did, as an external matter, that is, in relation to another. Of course, what you did is something not simply to be perceived but rather to be understood, as the phrase ‘public significance’ suggests. This much follows from law’s attending to the relations between persons as a normative matter (or as a matter of justification). I might have said ‘as a matter of equality’; that wouldn’t be wrong, but it 13 However, those with the time to track this down will want to consult Ernest J Weinrib, ‘Law as a Kantian Idea of Reason’ (1987) 87 Colum L Rev 472 [Weinrib, ‘Law as a Kantian Idea’]. This is not an easy read, but some of the same insights on law can be gained in a more accessible way if one begins with the early chapters of The Idea of Private Law and reads through to chapter four on ‘Kantian Right,’ the most difficult part of the book but one that follows ineluctably, and on a path of everincreasing abstraction, from a subject matter that one can grasp more easily and directly in the first three chapters; see Weinrib, Idea, supra note 12. 14 The reader will not find this particular encapsulation of Ernie’s view anywhere in his articles or books. Both this encapsulation and the paragraphs expanding on it which follow in the text offer a deliberately cryptic and somewhat personal summary of the arguments that Ernie offers in Weinrib, ‘Law as a Kantian Idea,’ supra note 13.

186 UNIVERSITY OF TORONTO LAW JOURNAL wouldn’t add much either. For once we attend in law to the relations between persons as a normative matter, then we attend to those relations for all persons (and only persons) wherever they are (equally). Now relations between persons can either be immediate, that is, qua persons, or non-immediate, that is, as mediated by the sorts of persons they are. (Any other sort of mediation takes us beyond a relation between persons as such.) Using the notion of equality, we could say that persons can relate equally to one another either immediately, qua persons, or non-immediately, that is, as the sorts of persons they are. So when law attends to the relations between persons as a normative matter, it can attend to them in either one or the other of these two ways.15 No amount of detailed empirical observation of a car collision at the corner of Bloor Street and Avenue Road will reveal in which way the law should attend to this relation between persons as a normative matter. But if law attends to the immediate relation between the two drivers as persons, then their equal relationship (or relationship as a normative matter) must attend only to what defines them as persons. For Ernie this will be the (equal) capacity of each for agency; that is, the capacity of each as purposive beings (or persons) to act in the world and thereby come into relationship with one another by way of a transaction. Acting in the world in a way that is consistent with equal agency or the equality of persons qua persons requires no special response from law attending to that relation as a normative matter. But acting in the world that is inconsistent with equal agency or the equality of persons qua persons requires law to restore the relation as a normative matter. This, for Ernie, is the stuff of corrective justice. Talk of corrective justice will, as many here will already know, take us to Ernie’s third question, ‘What is a theory of private law?’ or ‘What is a theory of tort law?’ And so one can see how naturally and easily the right questions bring us from one of Ernie’s worlds into another. But before we make this final step, I want to emphasize that Ernie’s account of law already has contained within it the beginnings of an account of public law as well. For recall the second way in which persons can relate to one another, that is, as mediated by the sorts of persons they are. This is the stuff of distributive justice. If we need a slogan (and to get the feel of a distribution), we might say, ‘From each person according to his X, to each person according to her Y’ (where X and Y name different possible attributes of persons and so identify the sorts of persons they are). So, for example, on observing that earlier car collision at the corner of Bloor

15 See Weinrib, ‘Legal Formalism,’ supra note 6 at 979–80.

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Street and Avenue Road, we could, as a normative matter, treat these relations between persons in a non-immediate way, that is, not in virtue of their equal agency or qua persons, but in virtue of the sorts of persons they are. Which attributes would inform our distribution? Here’s one candidate: ‘From each according to his wrongdoing, to each according to her wrongfully caused injury.’ This might sound like the stuff of corrective justice (indeed, the Yale legal theorist, Jules Coleman, famously thought so in some early work on the annulment of wrongful gains and losses, until Ernie set him right), but it isn’t, since it is a content that really reflects the form of a distribution and does not arise immediately (that is, without some independent selection of these attributes as a political matter) out of the transaction between persons as such.16 Here’s another candidate for a distributive slogan: ‘From each according to his wealth, to each according to her medical need.’ Now there is not even the suggestion of a transaction that might link the parties as a matter of corrective justice, although this candidate for a distributive scheme is no more or less distributive in form than the first. How is it that we choose between such schemes? Can law do that qua law? The answer is ‘no.’ Unlike for corrective justice, where the normative content can be distilled from the corrective justice form purely as a matter of law and adjudication, for the distributive justice form, a court of justice needs the criteria for the distribution to be legislated ex ante as a political act determining a collective purpose. So here (within the scope of what law attends to as a normative matter) there is a prior role for politics.17 Does that make public law political? Not really. Again, qua law, what the court does (say, under judicial review of the workings of a legislative or administrative law scheme) is police the form of distributive justice, ensuring that persons are being properly (equally) related to one another under that scheme; that is, that each person is being treated as an equal for the sort of person they are (where the relevant sort of person for the purposes of the distribution has been identified as a political matter). Such a job for the courts, so long as the courts do not second guess the distributive justice criteria under the scheme, is purely legal, not political.18

16 Jules Coleman’s most complete statement of the annulment thesis is in Jules Coleman, ‘Tort Law and the Demands of Corrective Justice’ (1992) 67 Ind LJ 349. He has since conceded that such a conception of justice is essentially distributive rather than corrective; see Jules Coleman, Risks and Wrongs (Cambridge, UK: Cambridge University Press, 1992) at 312. 17 Weinrib, ‘Legal Formalism,’ supra note 6 at 988 –92. 18 Ibid at 986 –8.

188 UNIVERSITY OF TORONTO LAW JOURNAL We are now in a position, finally, to address Ernie’s third question, the one where Ernie shows himself to be most engaged with the world of legal practice. The third question is, of course, ‘What is a theory of private law?’ and I will be brief in my discussion of it, since this is the subject of his famous book The Idea of Private Law and, for many here, the level at which most of us are already familiar with Ernie’s work. Also, the title for Ernie’s talk today, ‘Private Law and Public Right,’ suggests he will spend some time on the matter himself. Again, the internal theoretical method requires the identification of some essential characteristic of private law, something that makes it what it is and distinguishes it from what it’s not. Within the legal realm (not the university more generally), this suggests that we look into how private law contrasts with public law. The defining aspect of private law, of course, is the institutional linkage between a particular plaintiff and a particular defendant. These two parties have an equal standing in the litigation that links them, and they are the only two parties that have this standing. These are familiar enough points for the practising lawyer or judge, and that Ernie begins in such a legally familiar place is precisely what allows him to move so comfortably around the world of legal practice.19 But it is what Ernie does with this familiar characterization of private law that sets his theorizing apart. For if this is the institutional arrangement to be understood, then it makes little sense (little internal sense) to think of private law as about the achievement of certain collective goals. The collectivity simply has no standing here to advance those sorts of arguments. Further, goals that might make sense from the point of view of one these two parties considered separately make no sense (again, no internal sense) of the fact that, in a private law action, they have been brought together. This last insight has a powerfully corrosive effect on any of the economic analyses that a judge might be tempted to import into private law. For example, it might seem very sensible for tort law, as the law that deals with accidents, to set its sights, first, on deterrence, or the possibility of having fewer accidents, and, second, compensation, or the possibility of attending to the needs of those who are the victims of the accidents that we cannot effectively avoid. But, however sensible these two goals might be, Ernie shows that they cannot make sense of tort law and the private law connection between these two particular litigants.20 The deterrence rationale focuses on the defendant and makes sense of why we 19 For a more elaborate discussion of the indicia of private law that give it its distinctive character and that are to be found within the everyday experience of lawyers, see Weinrib, Idea, supra note 12 at 8 –11. 20 Ibid at 40 –2.

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might threaten to extract a payment from him to ensure that he and others like him are deterred from injuring others. But, as a goal, it makes little or no sense of why this payment must go to the plaintiff; it could equally go to the state as a fine. In this respect, it is only one side of a distributive scheme, the stuff of public or regulatory law: ‘From each according to his need to be deterred,’ with the other side of the distribution still unspecified. On the other hand, the compensation rationale focuses on the plaintiff, ‘to each according to her injury-based needs,’ but makes no sense of why this compensation needs to come from the defendant or why it waits on the fact that the defendant has committed a wrong. Indeed, each of these two goals, focused as they are on quite different considerations, sets an arbitrary limit on the other. As justifications, they strain against one another and cannot both be satisfied, at least simultaneously, within a private law action where what the defendant pays is what the plaintiff receives. As a consequence, neither operates as a justification for tort law, and law’s essential enterprise as attending to the relations between persons as a normative matter (or as a matter of justification) is frustrated.21 As we know from Ernie’s work, this does not mean that private law cannot be justified. But what is required is a normative understanding that simultaneously, and single-mindedly, embraces both the plaintiff and the defendant. For Ernie, tort law (or at least negligence law) is an instantiation of corrective justice, where persons are related immediately as persons, that is, as purposive beings with a capacity for agency. Small wonder, then, that law awaits a transaction that links the parties before offering a response. (Notice how we have an explanans that is already close to the explanandum.) Further, the significance of the defendant’s (wrongful) doing lies in the possibility of causing the plaintiff to suffer, and the significance of the plaintiff’s suffering is that it is the consequence (wrongful, not merely causal) of the defendant’s doing. So the two parties are immediately linked under the same wrong.22 This link also makes perfect sense of all those different relational moments in the tort action: a duty owed by the defendant to the plaintiff, a breach of the duty owed to that plaintiff, a cause-in-fact connection between the defendant’s breach of the duty and the plaintiff’s injury, and (lest cause-in-fact set in motion remote connections to possible plaintiffs outside the ambit of the defendant’s wrong) a requirement of proximate causation.23 These are, of 21 On the special tension that the economic conception of tort law brings to the idea of public justification, see Ernest J Weinrib, ‘Why Legal Formalism’ in Robert George, ed, Natural Law Theory (Oxford: Oxford University Press, 1992) 341 at 347. 22 Weinrib, ‘Jurisprudence,’ supra note 8 at 593. 23 For Weinrib’s account of all these different elements of a successful negligence action, at a point in his book where he has begun his descent from high theory back into the

190 UNIVERSITY OF TORONTO LAW JOURNAL course, the moments of tort law that a negligence lawyer struggles with every day. However, in the work of many contemporary tort theorists, they either are unintelligible or are the recalcitrant details that get in the way of a good distributive justice analysis, the stuff of public law. But for Ernie, they are definitive of the private law phenomenon to be explained and understood. Does this mean that Ernie is simply an apologist for the tort law that we happen to have, that his theory is an elaborate form of description with no power to prescribe change? No one who has read, in The Idea of Private Law, Ernie’s powerful dissection and devastating critique of Justice Andrews’s dissenting opinion in the famous Palsgraf case could possibly think that.24 Ernie leaves no prisoners. After you have finished reading this analysis, you wonder how it was possible that anyone could ever have been tempted to label this as a ‘powerful dissent.’ Yet many have and there are constant returns within tort law to the Andrews mode of thinking. Indeed, our own home grown Kamloops case is probably an example.25 But Ernie does not shy away from critique of such judicial results.26 They are at odds with the demands of tort law’s internal intelligibility, and that they still occur, even often, only attests, as Ernie sometimes says, to the frequency of the error. So, three worlds, three questions . . . and this introduction is probably three times as long as it should have been. But, as I suggested at the outset, Ernie’s magnificent array of scholarly articles and books over the last three decades or more are so compelling that they cannot help but get a firm grip on your mind. Certainly, it has been hard for me to escape their grasp in my overlong attempt here to offer some account of what they are about. I only hope that I have offered a roughly intelligible account that is not too far from its subject matter in Ernie’s work. But there is only one Ernie, and no one else can really get that close, at least intellectually, to what he does. And we have him here today. So enough of what, from me, must inevitably be an external and inadequate summary; let’s have these arguments from their source. Let’s have Ernie himself speak to us about ‘Private Law and Public Right.’

case law (compare Weinrib, ‘Law as a Kantian Idea,’ supra note 13), see his wonderful chapter ‘Negligence Liability’ in Weinrib, Idea, supra note 12 at 145–70. 24 Ibid at 159 –67. 25 Kamloops v Nielsen (1984), 10 DLR (4th) 641 (SCC) was, of course, the occasion on which the Supreme Court of Canada adopted the so-called ‘two stage test’ for the determination of duty from the House of Lords case Anns v Merton London Borough Council, [1978] AC 728 HL (Eng). The two-stage test has since been repudiated by the House of Lords although it continues to be championed in our own Supreme Court. 26 For his criticism of Kamloops and its progeny, see Ernest J Weinrib ‘The Disintegration of Duty’ (2006) 31 Advocates’ Q 212 at 233–45.

Ernest J Weinrib*

PRIVATE LAW AND PUBLIC RIGHT†

In Kant’s philosophy of law “public right” refers to the condition in which public institutions guarantee rights. This lecture deals with the relationship between public right and the rights of private law. In accordance with corrective justice, private law links the parties to a transaction bilaterally, so that they are subject to correlatively structured bases of liability. In contrast, public right is omnilateral, linking everyone to everyone else. Two normative ideas inform public right: publicness (that public institutions secure everyone’s rights on the basis of reasons that can be known and acknowledged by all) and systematicity (that the norms and institutions of law form a systematic whole). In standard cases public right makes no difference to a private law controversy except to add the dimensions of publicness and systematicity. In some circumstances, however, public right alters the principle on which a court resolves a controversy, without, however, changing the structure and content of the private-law right itself. Kant himself pointed out that publicness can have this effect, as he illustrated in his discussion of market overt. Systematicity operates similarly, sometimes extending and sometimes narrowing the effect of the plaintiff’s right. For instance, the tort of inducing breach of contract expands the effect of the promisee’s right by securing it against everyone. On the other hand, the privilege to preserve property, exemplified in the controversial case of Vincent v Lake Erie, narrows the effect of the plaintiff’s right by subjecting it to conditions that justify its infringement. The effect of public right is to make right holders reciprocally determining participants in the legal system, thereby transforming private law into a community of rights. Keywords: theory of private law/Kant’s philosophy of law/public right/ market overt/inducing breach of contract/Vincent v Lake Erie/justification I

The framework

Private law is a publicly rightful set of norms that governs the legal relations between parties. My lecture on this occasion deals with the connection between two aspects of this characterization of private law. The first is the conception of the relationship between the parties and the kinds of reasons for liability that are appropriate to that relationship. * University Professor and Cecil A Wright Professor of Law, University of Toronto. † This is a public lecture given at the University of Toronto in October 2009, on the occasion of the author’s receipt of the Killam Prize for the Social Sciences for 2009, awarded by the Canada Council for the Arts. I would like to thank participants in workshops at the University of Toronto, the Buchmann Faculty of Law of Tel Aviv University, and the Radzyner School of Law of the Interdisciplinary Center Herzliya for their helpful comments. In addition, I am particularly indebted to Lisa Austin, Peter Benson, Dennis Klimchuk, Jason Neyers, Arthur Ripstein, Robert Stevens, Lorraine Weinrib, Jacob Weinrib, and Sara Weinrib. (2011), 61

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DOI: 10.3138/utlj.61.2.191

192 UNIVERSITY OF TORONTO LAW JOURNAL The second is the notion of public rightfulness that is evidenced in the law’s public institutions of adjudication and enforcement. Any sophisticated system of private law brings these two aspects together. Yet, in the remarkable proliferation of theoretical scholarship about private law over the last several decades, little has been said of the connection between them. I want address this issue within the framework of four ideas that have long been important to my understanding of private law. Of these four ideas, the first pair deals with the structure and content of the privatelaw relationship, and the second pair with the nature and limits of private law theory. The first idea is that fair and coherent reasons for liability are correlative in structure in that they treat each party’s position as the mirror image of the other’s. This correlativity reflects the defining structural feature of liability itself: that liability of a particular defendant is always a liability to a particular plaintiff. Correlatively structured reasons focus not on either party separately from the other but on the relationship between them as doer and sufferer of the same injustice. The injustice is the same for both parties because the reasons for considering something an injustice as between them are normatively significant for the relationship as a whole. Such reasons are fair to both because they treat the parties as equals within the relationship; considerations relevant to only one of them do not determine the legal consequences for both. Such reasons are also coherent because they reflect the parties’ relationship as such, rather than referring to a hodge-podge of factors (such as the defendant’s deep pocket or the plaintiff’s need) that apply to each party separately. Consequently, arguments that seek to have the law achieve goals external to the parties’ relationship – whether instrumental, distributive, or economic – are all structurally inconsistent with fair and coherent determinations of liability. In contrast to such goal-oriented arguments, correlatively structured reasons are inherently ‘juridical,’ because the parties are viewed as participants in a legal relationship organized by the principle of its own internal fairness and coherence. The second idea is that rights and their correlative duties provide the content for private law’s correlatively structured reasoning. By their very nature right and duty are correlative concepts. Every private-law right implies that others are under a duty not to infringe it; similarly, in private law, no duty stands free of its corresponding right. Right and duty are correlated when the plaintiff’s right is the basis of the defendant’s duty and, conversely, when the scope of that duty includes the kind of right-infringement that the plaintiff suffered. Under those circumstances, the reasons that justify the vindication of the plaintiff’s right are the same as the reasons that justify the existence of the defendant’s duty.

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Presupposed in the rights and duties of private law is the conception of the person as a free being who has the capacity to set his or her own purposes. The exercise of one’s rights (for example, by acquisition, alienation, or use) is the exercise of this capacity. Similarly, subjection to a duty is unintelligible in the absence of this capacity. In light of this conception of the person, rights and their correlative duties function as the juridical markers of the freedom of the parties in relation to each other. The third idea is that the activity of theorizing about private law involves not the construction of a utopia but the understanding of an ongoing normative practice. In the most highly developed versions of this practice, those entrusted with authority over its elaboration have striven, of course not always with success, to work out the fair and coherent terms on which persons ought to interact with each other. The theory of private law takes this material as its starting point and enquires into its structure, its presuppositions, and the internal connections among its most pervasive features. The aim is to identify the most abstract unifying conceptions implicit in the law’s doctrinal and institutional arrangements and to enquire into the rationality that inheres in the law’s processes. In this effort, the contemporary theorist need not start from scratch. One may avail oneself of the history of philosophic reflection, whose leading figures provide exemplars for one’s own efforts to, as Kant put it, ‘exercise the talent of reason.’1 These figures may point the contemporary theorist of private law in the direction of certain ideas whose structure they have presented with extraordinary clarity and whose implications they have explored with extraordinary profundity. For example, the first two ideas that I mentioned above – the significance of correlativity as a structural feature of reasoning about liability and the role of rights in providing the content of correlatively structured reasoning – are drawn from Aristotle and Kant, respectively. Aristotle attached the term ‘corrective justice’ to the operations of law that are structured by the correlativity of the parties’ positions as doer and sufferer of the same injustice. Kant was, perhaps, the greatest expositor of the systemic significance of rights as expressions of human freedom. My own work has been devoted to the fairly modest objective of demonstrating the importance of these previously ignored Aristotelian and Kantian ideas for understanding the structure and content of private law. My point in invoking Aristotle and Kant has not been to reconstruct the place of law within an Aristotelian conception of ethics or a Kantian metaphysics of practical reason. Rather, the task of legal

1 Immanuel Kant, Critique of Pure Reason, translated by Paul Guyer & Allen Wood (Cambridge: Cambridge University Press, 1998) at B866 [Kant, Critique].

194 UNIVERSITY OF TORONTO LAW JOURNAL theory, as I see it, is to bring to the surface the most pervasive ideas latent in law as a normative practice. The greatest thinkers are relevant to this conception of legal theory only because, and to the extent that, they provide insights helpful to the understanding of law in its own terms. In this lecture on public right, I continue along these lines. As I will explain in a moment, public right is a Kantian notion that illuminates the relationship between legal norms and legal institutions. My intention is to draw out – or at least begin to draw out – the implications of this notion for private law. This brings me to the fourth idea. The account that I shall offer of public right is subject to the inevitable limitations on the scope of any theoretical account of legal norms. The theorist is not a philosopherking in academic robes who can work theoretical abstractions into a complete, definitive, and determinate code of law. Rather, a theory of private law is concerned with the conceptual structure and the normative presuppositions of the phenomenon of liability. Its function is to orient us in the conceptual space of the possible reasons for liability by identifying the kinds of reasons that are properly available and by showing how reasons of those kinds can come together in a fair and coherent system of liability.2 The high level of abstraction at which such a theory works provides a comparatively uncluttered view of the fairness and coherence that the law itself is striving to achieve. It thereby provides the law with an internal perspective of evaluation and criticism. Theoretical reflection, however, cannot supplant the activity of lawyers in specifying the full range of legal norms or in applying them to particular cases. Different legal systems organize themselves differently and have different histories and different mechanisms of decision. The diversity of their legal materials expresses the diverse ways in which the different legal systems strive for fairness and coherence. Accordingly, every sophisticated legal culture has a body of legal knowledge that is specific to it as well as its specific techniques for applying and developing the law. It also has lawyers who are versed in this knowledge and skilled in these techniques. In carrying out these activities, lawyers are not theorists. Nor do whatever theoretical insights theorists have qualify them to act as lawyers. The conceptual space within which theory orients us cannot, itself, be expected to supply the specific norms required to fill that space. These four ideas – correlativity, rights, the role of Aristotelian and Kantian ideas, and the scope of legal theory – frame my use of Kant’s conception of public right. I now turn to that conception.

2 This is an adaptation of Rawls’s formulation of the role of orientation in political philosophy; see John Rawls, Justice as Fairness: A Restatement (Cambridge, MA: Harvard University Press, 2001) at 3.

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Public right

Kant’s legal philosophy distinguishes between the rights that a person might have against others as a matter of justice and the public institutions that guarantee those rights. Rights are moral capacities for putting others under correlative obligations. The normative function of rights is to demarcate areas of freedom for the right-holder that can coexist with the freedom of those whom rights place under an obligation. Among these rights are the standard rights of private law to bodily integrity, to property, and to contractual performance. Without providing a full account of Kant’s complex and often obscure argument about these rights, I want to underline the one point that matters for present purposes. The content of the rights, the mode of acquiring rights to property and contractual performance, the consequent duties that the various rights impose on others, and the internal logic by which property rights are good against the whole world (in rem) and contract rights are good only against the parties to the contract (in personam) all emerge from an analysis of how the action of one person can be consistent with the equal freedom of another. Rights can be at least provisionally understood in abstraction from the judgment of any public institution, such as a court, about violations of these rights in particular circumstances. This is because, in securing rights, the operation of public institutions presupposes the normative validity of the rights that they secure.3 Kant calls this imagined condition of rights without institutions the ‘state of nature’ or ‘private right.’ The state of nature is a device for exhibiting the range of rights whose structure and content are normatively intelligible even apart from the public institutions that make them effective. In contrast, ‘public right’ refers to a condition in which public institutions actualize and guarantee these rights. Kant posits the state of nature in order to show that public right is necessary to cure its inadequacies. Although the rights in the state of nature are correlatively structured in order to be fair to both parties, the absence of a public mechanism of correction means that the interpretation and enforcement of these rights is left to the unilateral will of the stronger party. The institution of publicly authorized courts for dealing with legal controversies resolves this contradiction. As between the litigants, the court is both disinterested and impartial. It is disinterested in that it has no stake that aligns it with either of the 3 Immanuel Kant, The Metaphysics of Morals, in Mary J Gregor, ed and trans, The Cambridge Edition of the Works of Immanuel Kant: Practical Philosophy (Cambridge, UK: University of Cambridge Press, 1996) at 6:256. Page citations are to volume 6 of the Prussian Academy edition of Kant’s works, upon which Gregor’s translation is based [Kant, Metaphysics].

196 UNIVERSITY OF TORONTO LAW JOURNAL parties. It is impartial in that it brings to bear a normative perspective under which the justifications for liability embrace the relationship as a whole rather than either of the parties separately. As a result, members of society not only have rights but can also enjoy them.4 Under public right, the state operating through the courts becomes involved in the resolution of the controversy. The state’s status, however, differs from that of the two litigants. The latter are linked to each other through a particular legal transaction. The state, in contrast, links not only these litigants but all its members to one another through the legal system that all share. The relationship between the litigating parties is bilateral, linking the plaintiff to the defendant; the relationship among members of the state is omnilateral, linking everyone to everyone else. Both the bilateral relationship between the parties and the omnilateral relationship among members of the state have their respective normative dimensions. For the bilateral relationship, the normative dimension consists in the parties’ subjection to the correlatively structured bases of liability. For the omnilateral relationship, the normative dimension consists in every member’s subjection to the state’s lawful authority as it acts in the name of the citizenry as a whole. In adjudication, a court combines these two dimensions by projecting its own omnilateral authority onto the parties’ bilateral relationship. The court thereby extends the significance of its decision beyond the specific dispute, making it a norm for all members of the state. Two normative ideas inform Kant’s conception of public right. The first of these – the central core of what we conceive as the rule of law – is publicness. Being omnilateral, public right secures the rights of all through norms capable of being known and acknowledged by all. Free and equal persons could not be bound by a principle of action that depended on its being concealed from them. Such a principle could not possibly express their freedom. Free persons must know what is legally permitted if they are to enjoy their rights. Nor could it express their equality. Concealment prevents assurance that the state is respecting each and every person as an end, rather than merely manipulating them, or some of them, as means. Accordingly, state institutions are public not merely because their actions secure everyone’s rights through norms binding on everyone but also because their reasons for action are capable of being made public to and acknowledged by everyone. Because the idea that legal norms be publicly knowable applies to all norms, regardless of their content, one may think of publicness as the formal aspect of the omnilaterality of public right.

4 Ibid at 6:306.

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The second idea informing public right is systematicity. This is the substantive aspect of the omnilaterality of public right because it bears on the relation of the norms to one another, to the institutions from which they arise, and to the legal community whose members are all subject to them.5 Kant defines public right as ‘a system of laws for a people, that is, a multitude of human beings . . . which, because they affect one another need a rightful condition under a will uniting them . . . so that they may enjoy what is laid down as right.’6 Public right is a unifying idea that has its own integrating conception of a people, of its laws, and of its institutions. ‘A people’ is a multitude of human beings who are related to one another by virtue of belonging to the same commonwealth. The interacting persons are, accordingly, not an aggregate of individuals but members of a political unit that expresses a united will through a system of laws that are binding on everyone. The legislature, executive, and judiciary perform the functions that respectively actualize this united will: formulating the laws, carrying them out, and awarding each person what is due under them. The laws, in turn, are not a collection of discrete dooms but a systematic union of norms. Taken in its entirety, public right is a whole that embraces and systematically connects the interacting persons, the terms on which they interact, and the institutions that determine and enforce those terms. The adjudication of liability manifests both publicness and systematicity. First, a court exercises its authority in a public manner by exhibiting justifications for liability that are accessible to public reason. Juridical concepts, such as property and contract, form the basis for a process of reasoning that is open to all and that is applied to factual evidence which, on reasonable investigation, can be openly produced and made patent to all. Opacity or secrecy at any point is a legitimate ground for criticism or requires special justification. Second, the court’s decision partakes of the systematicity of the entire legal order. This has both an institutional and a doctrinal aspect. The institutional aspect arises from the differentiation among the legislative, executive, and adjudicative functions of the state and, thus, among the various institutions that serve these different functions. Public right requires a court to conform to this system of co-ordinate institutions by acting within its competence as an adjudicative body and by not usurping 5 In public right, systematicity reflects omnilaterality. The rights in the state of nature are also systematic, but in a different way: they express the kinds of relationships that one person can have bilaterally with another, in accordance with the Kantian categories of the understanding that deal with relations; see Jacob Weinrib, ‘What Can Kant Teach Us about Legal Classification?’ (2010) 23 Can JL & Jur 203. The systematicity of public right expresses the relationship that everyone has omnilaterally with everyone else. 6 Kant, Metaphysics, supra note 3 at 6:311.

198 UNIVERSITY OF TORONTO LAW JOURNAL the role of other state institutions. The doctrinal aspect is that the reasoning of any decision forms part of a coherent pattern of reasoning across decisions. Although the court decides as between two particular parties, the significance of its decision is not confined to those parties alone. The principle of the decision is binding on everyone and, therefore, has to cohere with the entire ensemble of similarly binding decisions. The public and systematic qualities of public right are closely connected, as pertaining respectively to the form and content of public right. Consequently, a deficiency in one is usually associated with a deficiency in the other. If a decision is reached through a process of reasoning not open to all, there is no assurance that the decision is within the adjudicative competence of the court or forms part of a coherent pattern of reasoning across judicial decisions. Conversely, decisions beyond the court’s institutional competence do not evince the distinctive kind of public reasoning characteristic of the adjudicative process; nor are they based on evidence available to judges or within their institutional capacity to access and to assess. Similarly, a decision that is inconsistent with other decisions leaves opaque the real basis on which disputes of that sort are adjudicated. In standard cases, public right seamlessly develops the correlatively structured rights and duties of the state of nature. Within the institutional context of the court, those rights and duties as well as the principles that are used to articulate their meaning in particular circumstances constitute a domain of public reason. Moreover, these rights and principles participate in the legal order’s systematicity. Institutionally, they are within the court’s adjudicative competence because they deal with justice between the parties rather than with distributive issues requiring political action. Doctrinally, they form a coherent pattern of reasoning because the correlative structure that informs them operates not only within any given relationship but also across relationships, thereby providing a common structure for all the grounds of liability. The effect of public right is not to submerge private law in politics but to allow its range of rights to be enjoyed through the operation of public institutions. In the standard case, the Kantian conception of public right makes no difference to the internal logic of the controversy except to add the dimensions of publicness and systematicity. III

‘A common fault of experts on right’

Nonetheless, Kant insists that the idea of public right can, on occasion, require a court to adopt a principle inconceivable in the state of nature. When facts crucial to the transaction are not publicly ascertainable, an opposition arises between the inner logic of the parties’ rights, on the one hand, and the public character of the parties’ interaction

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and of the court’s consequent decision, on the other. To such situations, two contrasting perspectives, each normatively valid, apply; one is concerned with what is right in itself as a matter of private right, the other with what is publicly right. The latter prevails because rights cannot be enjoyed beyond the capacity of a court to adjudicate specific cases through a public process that deals with the publicly ascertainable aspects of the parties’ interaction. An illustration of this that Kant discusses is the doctrine, familiar to the common law as well, that a sale in market overt transfers title even if the vendor has no title to give. Market overt operates as follows. It is a commonplace of the law of property that only a person who has title to a thing could transfer that title: nemo dat quod non habet. Assume, however, that the thing is sold by a thief or a borrower who has no right to sell it. Under the doctrine of market overt, a purchaser for value without notice of the vendor’s defective title could retain the thing even against the true owner, provided that the purchase occurred in an open market. Kant’s analysis of this notoriously problematic situation is that the two opposing notions – that one cannot transfer what one does not have and that the purchaser in an open market can acquire a title that the vendor does not have – are both valid, but from different points of view. The first notion accords with what is intrinsically right, as a matter of reason, when one focuses on property as a juridical category in abstraction from the institutions of public right. Because property signifies that the owner has a right against the whole world, ownership cannot be affected by a putative sale by a non-owner to a purchaser, however innocent. The second notion, however, reflects the publicness requirement of public right. If the law insisted that a vendor have good title, a purchaser would have to verify the entire chain of title – an investigation that ‘would go on to infinity in an ascending series.’7 Because such verification is effectively impossible, a legal system that required it would be unable to fulfil a primary function of public right: to guarantee secure acquisition. Instead, public right contents itself with allowing transfer by a non-owner to confer title on an innocent purchaser if the transaction satisfies the conditions of publicness present in an open and publicly regulated market. Through its public quality, an open market both creates a mechanism for securing the purchaser’s acquisition and provides an opportunity for identifying the goods as misappropriated by the seller. By having recourse to the doctrine of market overt, a judge determines ownership on the basis of what is publicly ascertainable, with the result that ‘what is

7 Kant, Metaphysics, supra note 3 at 6:301.

200 UNIVERSITY OF TORONTO LAW JOURNAL in itself a right against a person, when brought before a court, holds as a right to a thing.’8 In offering this analysis of market overt, Kant is not proposing a rule. Historically, the idea of market overt has existed in many variations.9 A legal system that employs this idea would have to decide on its specific contours, based on (among other factors) whether the publicness of an open market gave a reasonable opportunity for unmasking the infirmity of the seller’s title. One such decision would have to specify what constitutes a market overt. Before the abolition of market overt in England, for example, every shop within the City of London qualified as a market overt with respect to the kind of goods that it normally sold,10 whereas, under the German civil code, market overt is largely restricted to goods sold at a public auction.11 Another such decision would concern special conditions applying to special kinds of goods. Kant takes the stolen horse as paradigmatic. English law, in contrast, made special provisions for horses because their mobility allowed them to be spirited away to markets far beyond the scrutiny of true owners or of their neighbours. Or perhaps, as under modern conditions, where market overt has been abolished, the geographic diffusion of the market and the ease and impersonality of transactions make the idea of market overt inapposite. Kant’s justification for market overt does not predetermine any of these decisions. Rather, it points out the existence of a distinctive normative space informed by publicness, and it situates that space within the entire domain of normative considerations applicable to the transaction between the parties. How a particular system of positive law fills or ought to fill this space is another matter. What, then, is the relation between what is right in itself and what is publicly right? What is publicly right provides the court with a new principle of decision based on the omnilateral standpoint of a public institution. It does not, however, transform what is right in itself. Public right, Kant remarks cryptically, ‘contains no further or other duties of human beings among themselves than can be conceived [in private right]; the matter of private right is the same for both.’12 The matter of private right refers to the various kinds of rights that one can have in external things. For Kant, there are three such kinds of rights: property rights, rights to contractual performance, and rights with respect to household relationships. Each of these kinds of rights has its distinctive normative nature, in accordance with which the internal logic of the 8 9 10 11 12

Ibid at 6:302 [emphasis in original]. Daniel E Murray, ‘Sale in Market Overt’ (1960) 9 ICLQ 24. Peter M Smith, ‘Valediction to Market Overt’ (1997) 41 Am J Legal Hist 225 at 242. Murray, supra note 9 at 48. Kant, Metaphysics, supra note 3 at 6:306.

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right and its correlative duty operate. Public right does not change this internal logic. Indeed, mistaking considerations of publicness for what is right in itself, Kant alleges, is ‘a common fault of experts on right,’13 that is, of persons conversant with the positive law who lack a true understanding of its normative foundations.14 Since Kant’s time, the prevalence of realism and instrumentalism in legal studies has made this ‘common fault of experts on right’ even more appealing. The legal realist ascribes decisive importance to the point at which the legal dispute makes contact with the coercive apparatus of the state. In Karl Llewellyn’s famous words, ‘[L]aw is what officials do about disputes.’15 Realists are of the view, therefore, that one cannot think of a right aside from the way the court enforces it. From the fact that considerations of publicness determine the principle of decision in a given case, a realist would conclude that those considerations are constitutive of the right itself. In contrast, Kant’s view is that neither law as a normative practice nor the process of adjudication would make sense unless the legal categories applicable to the dispute were already immanent in the interaction of the parties as self-determining beings and were, therefore, available for the court when the case came before it. Publicness merely adds what is necessary for the court to function as a public institution, even to the extent of changing the decision, but publicness does not transform the nature of the underlying right. As for the instrumentalists, the contrast with Kant goes both to structure and to content. From the structural standpoint, Kant understands law as a sequence of ideas in which one first identifies the concept of freedom that pertains to law, then works out the various rights expressive of this freedom in the conceptual space of the state of nature, and finally posits the public institutions necessary for the enjoyment of the rights. The stages of the sequence comprise a conceptual ordering that articulates, in a progressively more adequate form, the conditions under which the freedom of one person can coexist with the freedom of others. Instrumentalists, in contrast, have difficulties with sequenced ideas. Once the underlying goal or combination of goals is posited, there seems little reason to deny it general scope. Accordingly, if the law’s publicness is considered instrumentally valuable in the service of some goal, that goal would also be the relevant to the analysis of such fundamental concepts as property and contract. With respect to content, the contrast with Kant can be illustrated by supposing how an instrumentalist might approach the doctrine of 13 Ibid at 6:297. 14 Ibid at 6:229. 15 Karl N Llewellyn, The Bramble Bush: Our Law and Its Study, revised ed (New York: Oceana, 1951) at 12.

202 UNIVERSITY OF TORONTO LAW JOURNAL market overt. Blackstone observed that, without a doctrine of market overt, ‘all commerce between man and man must soon be at an end.’16 From this, one might readily infer that the point of the doctrine is to facilitate commercial activity. Then, because the doctrine applies to contracts for the sale of property, one might conclude that the facilitation of commercial activity is also the goal that justifies the protection that the law affords to property and contract. From the Kantian perspective, this line of reasoning confuses the consequences of the law with its justification. The facilitation of commercial activity, not being a correlatively structured consideration (as corrective justice requires), is a poor justification for property and contract. Under the Kantian approach, rights in property and contract are the juridical markers of equal reciprocal freedom. Nor is the economic account of the doctrine of market overt satisfactory from the Kantian perspective. The normative significance of the doctrine is not the economic goal that it serves but the condition of publicness that it exemplifies in accordance with what public right requires. The idea that ‘the matter of private right’ remains unaffected by an opposing judgment responsive to the need for publicness has two implications. First, judgments from the standpoint of public right do not justify a revision in the basic categories of private right, such as property and contract, despite the inconsistency of these judgments with the internal logic of those categories. Such a revision would undermine that internal logic by introducing considerations that do not pertain to it. Second, because the judgment about publicness supervenes upon legal categories that remain intact and continue to structure the relationship between the parties, the judgment should bear the imprint of the category to the extent possible. Far from opening the door to a wide-ranging instrumentalism at odds with the nature of private law, the judgment of public right should vary the result that would follow from the internal logic of the basic categories only to the extent necessary to achieve publicness. In market overt, for instance, the doctrine should not effect an absolute transfer of title to the purchaser (as was the case under English law) but should allow the true owner to regain title by reimbursing the purchaser for the price paid (as in Jewish law17 and many continental systems18). The true owner would then have the power to reassert the ownership that was never properly terminated of an object that has sentimental value to

16 William Blackstone, Commentaries on the Laws of England (Oxford, UK: University of Oxford Press, 1825) vol 2 at 449. 17 Rabbi Yosef Karo, Shulchan Aruch at 356.1. 18 Murray, supra note 9.

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her or that turns out to have a greater value than was reflected in the price.19 IV

The effect of systematicity

Kant’s discussion of the ‘common fault of experts on right’20 is devoted to demonstrating that the publicness requirement of public right can transform the principle of decision while leaving the internal logic of the right unaffected. Turning now to the other aspect of public right, the systematicity of law, I want to suggest (although Kant did not advert to this) that systematicity can have a similar effect. The basic idea is this: the driving impulse of the Kantian approach to law is to present the sum of the conditions under which the freedom of one person can coexist with the freedom of everyone else. Kant unfolds this sum of conditions by moving through a series of conceptual stages. The first stage of this series features the innate right to freedom that all persons have by virtue of their humanity. The second stage introduces the kinds of private rights that one can acquire, such as rights to property and contractual performance. The third stage, that of public right, integrates these rights into a public and systematic totality of persons, norms, and institutions, thereby moving from bilateral relationships, in which each right (as well as its correlative duty) stands on its own, to the omnilateral relationship among members of a state, in which the rights and correlative duties become constituents of a comprehensive whole. Thus, the elucidation of the sum of conditions under which everyone’s freedom coexists culminates in public right. Accordingly, Kant neither begins nor ends with a collection of specific rights. Although he regards rights as juridical manifestations of freedom and therefore as necessary for a free society, his broader intention is to explore the totality – what one might call (to use a term from German constitutional jurisprudence) the ‘objective normative order’ – into which rights fit. This means that the specific rights that arise in the 19 This was the solution reached by the Supreme Court of Israel in the fascinating case of Cnaan v The United States Government 57(2) PD 632 (2003). The defendant had purchased a painting at a flea market. The painting turned out to have been the work of a distinguished Israeli artist that had been stolen while on tour. Even though the Israeli sales legislation gave unencumbered title to the purchaser in an open market, the majority of the Court held that the true owner could trace its property into the vendor’s power to rescind due to mutual mistake. Accordingly, the Court concluded that no sale had taken place and that, therefore, the market overt rule was inapplicable. It, nonetheless, required the true owner to reimburse the purchase price to the purchaser and to compensate the purchaser for the expenses incurred in investigating the painting’s provenance. 20 Cited at note 13, supra.

204 UNIVERSITY OF TORONTO LAW JOURNAL state of nature may not exhaust the normative space comprising this totality. Although a person enters public right with, and continues to hold, the kinds of rights postulated for the state of nature, those rights now operate within a public and systematic framework that has supplementary requirements of its own. We have already seen that this is explicitly the case with respect to the publicness aspect of public right. My suggestion is that it is also the case with respect to the systematicity aspect. This supplementation may, relative to the rights available in the state of nature, either extend or narrow the effect of a right of the plaintiff. I give an example of each. A INDUCING BREACH OF CONTRACT

My example of extending the effect of the plaintiff’s right is the tort of inducing breach of contract. Its apparent inconsistency with the nature of contract has made this tort a long-standing puzzle to legal commentators. A contract links two parties through a consensually assumed set of mutual rights and obligations. The effect of the tort of inducing breach of contract is to extend to the rest of the world the obligation to respect the contract. The tort thereby ‘inexplicably convert[s] the in personam right created by the law of contract into an in rem right for purposes of tort law.’21 This conversion leads some to regard the cause of action as ‘quasi-proprietary’22 and even to read the characteristics of property back into the contractual right.23 These moves mask the difficulty by having recourse to an unilluminating label or compound it by importing the uncertainty about the tort into the contract itself. The Kantian explanation of this tort draws on the omnilateral significance of public right.24 In the state of nature, a contract binds only those who are parties to it, creating a right to performance in the promisee and placing the promisor under a correlative duty. No one, however, can have the assurance that his or her rights will be respected. Moreover, in the absence of such assurance, one cannot be relied upon to carry out one’s own contracts, for to treat one’s own contracts as binding without the assurance that everyone does likewise would be to subordinate oneself to the will of others. Public right cures the ineffectiveness of contractual rights in the state of nature by creating a system of omnilateral assurance through institutions of adjudication and enforcement that 21 Jason W Neyers, ‘The Economic Torts as Corrective Justice’ (2009) 17 Torts Law Journal 162 at 164. 22 Zhu v Treasurer of New South Wales, [2004] HCA 56. 23 Richard A Epstein, ‘Inducement of Breach of Contract as a Problem of Ostensible Ownership’ (1987) 16 J Legal Stud 1. 24 B Sharon Byrd & Joachim Hruschka, ‘Kant on ‘Why Must I Keep my Promise?’’ (2006) 81 Chicago-Kent L Rev 47 at 68– 71. My formulation of the Kantian argument is based on Kant, Metaphysics, supra note 3 at 6:255 –6.

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represent the general will of all. This system of omnilateral assurance, of course, requires that courts hold the contracting parties to their obligations. But, because public right relates each person to every other person through the system of laws that all share, it also requires more. When everyone is united under a system of laws that assures the rights of all, everyone is obligated to respect everyone else’s contractual rights. Because a court operates under the authority of public right, it is not merely a private arbitrator of a private arrangement between the promisor and the promisee. Rather, it has the public function of making everyone secure in her rights against everyone else. This function would be unfulfilled if parties external to the contract could procure violations of another’s contractual rights at their will. Accordingly, whereas, in the state of nature, the parties to a contract are not secure even against each other, public right makes their rights secure against everyone by attaching liability not only to a breach of contract by the other contracting party but also to the procuring by third parties of such a breach. Thus, public right makes the contract a juridical object for everyone, thereby creating a system of reciprocal assurance that relates all to all. From this Kantian explanation, one can readily understand why liability for interfering with the contract is based on intent and excludes negligence.25 The point of the tort is to provide assurance to a contracting party that no one, not even a stranger to the contract, may act inconsistently with the recognition of the contract’s juridical significance. Essential to the Kantian conception of this wrong is that persons who commit it act on the implicit principle that they are free to disrespect contracts to which they are not parties. Liability responds to the wrong in order to provide the assurance that no one, whether a party to the contract or not, can regard another’s contractual right as a nullity. Hence, the tort requires knowledge of the contract’s existence and an intention to interfere with its performance because one cannot regard as a nullity something that one does not know exists and that one’s action does not target. Mere negligence with regard to the benefits that would accrue to another under a contract does not imply a refusal to treat the contract as an object of respect. This explanation of the tort of inducing breach of contract has two similarities to Kant’s treatment of market overt. First, the additional layer of analysis that reflects the omnilaterality of public right leaves intact the normative connection between contract and in personam rights. The explanation thereby obviates the need to read proprietary notions back into the category of contract in order to provide a basis for the apparently in rem character of the tort. Indeed, to do so is to

25 But compare Neyers, supra note 21 at 174.

206 UNIVERSITY OF TORONTO LAW JOURNAL commit the ‘common fault of experts on right’26 that Kant noted in his observations on publicness. Second, the explanation bases itself on the requirements of a system of rights, not on the commercial advantages that might flow from protecting contracts against third parties. Economic analysts of law have discussed whether and under what conditions the tort of inducing breach of contract contributes to economic efficiency, especially in light of the apparent tension between this tort and the efficient breaches of contract that they think the law should facilitate.27 From the Kantian perspective, nothing about the normative foundation of the tort hinges on this issue. Rather, the tort is a juridical reflection of the systematicity of law as a juridical phenomenon. B THE PRIVILEGE TO PRESERVE PROPERTY

My example of narrowing the effect of the plaintiff’s right is the privilege that attends the use of another’s property to preserve one’s own. In the common law, the two most famous cases involve boats that are moored at docks in a storm. In the first of these cases, the court held that the dock owner must tolerate what would otherwise be a trespass; he could not, relying on the exclusivity of his property right, prevent the boat from remaining moored during the storm.28 In the second of these cases, the court held that, although the crew acted reasonably in keeping the boat attached to the dock, the owner of the boat was nonetheless liable for the damage to the dock caused by the boat’s pounding against it.29 These cases have occasioned much commentary, including suggestions that the liability for damage to the dock has radical implications for the fault-based nature of tort law or for the divide between misfeasance and nonfeasance. In contrast, I suggest that the privilege arises as a matter of public right in the Kantian sense, leaving the underlying nature of tort liability unaffected. The question of whether one can damage another’s property to preserve one’s own has an ancient history. The classic instance mentioned in writings of the Roman jurists was whether, in order to save one’s house from a spreading fire, one could create a firebreak by tearing down a neighbouring house. Roman jurists split on this issue.30 One position was that warding off a fire was no defence to a tort action. Another position was that a private person could tear down a neighbouring house 26 Cited at note 13, supra. 27 Fred S McChesney, ‘Tortious Interference with Contract vs ‘Efficient’ Breach: Theory and Empirical Evidence’ (1999) 28 J Legal Stud 131. 28 Ploof v Putnam, 81 Vt 471, 71 A 188 (1908). 29 Vincent v Lake Erie Transportation Co, 109 Minn 456, 124 NW 221 (1910). 30 Dig 43.24.7.4 (Ulpian); 9.2.49.1 (Ulpian).

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only if the fire had already reached that house, so that the house was doomed to destruction in any case. A third position was that, even if the house was not doomed, no tort liability existed, on the ground that action done out of legitimate fear was not wrongful. Sifting through this diversity of opinion in the seventeenth century, the German legal thinker Samuel von Pufendorf reconceptualized the entire issue: A necessity that touches our own property apparently allows one the permission to destroy or appropriate the property of another, but with the following restrictions: that the threatened loss to our property . . . cannot be averted in any more convenient way; that we do not destroy another’s article of greater value for one of our own of less value; that we make good the value of the article if it would not have been lost anyway . . . 31

Pufendorf’s formulation was subsequently incorporated into the German Civil Code section on necessity: The owner of a thing is not entitled to prohibit the interference of another person with the thing if the interference is necessary to avert a present danger and the threatened damage, compared to the damage arising to the owner from the interference, is disproportionately great. The owner may demand compensation for the damage incurred.32

The Pufendorf formulation, especially as restated in its modern German form, indicates the normative structure of the privilege of using another’s property to preserve one’s own. Pufendorf assumes that preserving the endangered thing is a proper purpose and that one is permitted to interfere with another’s proprietary right in the execution of this purpose provided that the interference conforms to the criteria of necessity and proportionality. To a reader familiar with modern constitutional law, the relationship between the property right and the privilege is strikingly similar to the relationship between an entrenched constitutional right and a limitation of that right in accordance with a proportionality analysis. Pufendorf had, as it were, formulated a private-law version of the ‘Oakes test’33 for the justified limitation of the owner’s proprietary right. Once one conceives of the privilege in this way, the obligation to compensate for the damage done to the sacrificed property poses no problem. Necessity both animates and limits the justification. In order to preserve the endangered object, it is necessary that the defendant use the plaintiff’s property, even to the extent of injuring it, if need be. It is not, however, necessary that the defendant be relieved of 31 Samuel von Pufendorf, On the Law of Nature and Nations (Oxford: Clarendon Press, 1934) at 2.6.8. 32 BGB 904. 33 R v Oakes, [1986] 1 SCR 103.

208 UNIVERSITY OF TORONTO LAW JOURNAL responsibility for the damage to the thing used. To leave the damage uncompensated would allow the defendant to leave a permanent mark on the plaintiff’s property. This would be beyond the scope of the justification, which allows temporary use only to the extent necessary to preserve one’s own property during the emergency. Moreover, in permitting a right to be infringed, a justification limits the right but does not negate it – indeed, if the justification did negate the right, justification and right would be incapable of coexisting within the same system of law. Under the privilege, the defendant commits no wrong in using the plaintiff’s property for the justified purpose and therefore cannot be prevented from using it. Nonetheless, the property used remains the embodiment of the plaintiff’s right. Accordingly, the defendant must pay for the damage done to the plaintiff’s property through the defendant’s use of it.34 In drawing attention to proportionality in constitutional law, I am, of course, not suggesting that private law somehow anticipatorily borrowed a principle from modern constitutional law. Rather, the possibility of justifying an infringement of a right arises in many contexts, including private law and constitutional law. Justification always signifies both that a right has been infringed (that is, that something occurred that needs to be justified) and that this infringement is, nonetheless, not wrongful in the circumstances (that is, that the infringement is justified and not merely excused). Accordingly, it would not be surprising to find that justifying arguments exhibit a common structure wherever they appear. The difference between Pufendorf’s formulation and modern constitutional law lies not in the structure of justification but in the legal complexity of the situations to which they respectively apply. Modern constitutional law has developed an explicit and sophisticated formulation of the structure of justified infringements of constitutional rights – that the infringing legislation be for a proper purpose, that it employ means suitable and necessary for this purpose, and that the benefit of achieving the purpose be proportionate to the effect on the infringed right. Pufendorf’s formulation is a simpler version of this structure because it is addressing a simpler problem. Whereas the justification for infringing a constitutional right involves situating a statutory provision, which can have almost any content, within the entire constitutional order, Pufendorf’s formulation has the narrow object of situating an infringement of a property right within a regime of property rights. The constitutional inquiry into proportionality is complex because one must compare, without any obvious common metric, the intensity of the legislation’s interference in the right with the importance of 34 Compare Arthur Ripstein, ‘Tort Law in a Liberal State,’ online: (2007) 1:2 Journal of Tort Law 3 ,http://www.bepress.com/jtl/vol1/iss2/art3..

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achieving the legislation’s purpose. Under Pufendorf’s formulation, the object preserved and the object sacrificed can readily be compared because value provides here, as it does always, the relational criterion for the quantitative comparison of different things. The possibility of justifying the infringement of a right is a reflection of the systematicity of public right. By allowing specific rights to be limited through arguments that justify their infringement, the law reveals that it does not regard those rights as absolute. Rather, the law’s concern is for the entire system of rights. Justifications work to adjust the effects of rights so that rights fit within the totality of conditions under which the freedom of all can coexist. This is the case in constitutional law, where rights are limited by principles underlying the constitutional order as a whole. In a much more modest way, it is also the case with Pufendorf’s formulation. Understood in the light of Kant’s conception of public right, Pufendorf’s formulation treats the rightfulness of the attempt to preserve property as implicit in a system of property. In the state of nature, an owner’s property right operates unidirectionally to allow the owner to prevent others from using the property. When considered as part of a system of property rights, however, an owner’s property right is modulated by the presence of an adjacent property right. Pufendorf’s formulation treats as justified an act that preserves to the extent possible the embodiments of both parties’ property rights. The idea that the justification covers an act with reference to the endangered property has several implications. First, the privilege is directed solely toward the preservation of property, not toward the creation of opportunities for gain. It may well be that the defendant can dramatically enhance the value of her property by temporarily encroaching on her neighbour’s – for example, by placing a crane on it to facilitate the construction of a high-rise building. Such action is not protected by the privilege. Second, in order to be shielded by the justification, the act has to be performed for the justified purpose. The negligent destruction of another’s property that turns out to save one’s own is an unjustified wrong.35 Third, the fact that the act is justified means that it is permissible, not obligatory. It is not obligatory on the owner of the saved property because he is as free to save his property or not, as he is to use it or not. Nor, a fortiori, is it obligatory on the owner of the sacrificed property. Because the act is permissible, the owner of the sacrificed property must abstain from preventing it but is under no affirmative duty to save the endangered property. Thus, the privilege conforms to the 35 Justinian’s Digest (Dig 43.24.7.4 [Ulpian]) mentions tearing down a house when there was no fire but a fire subsequently arose that would have allowed the house to be torn down to create a firebreak. Labeo holds that one is liable for damage wrongfully caused because one evaluates ‘non ex post facto sed in praesenti statu’; ibid.

210 UNIVERSITY OF TORONTO LAW JOURNAL standard notion, evidenced in the distinction between misfeasance and nonfeasance, that private law postulates no obligatory ends. As with the examples of inducing breach of contract and market overt, the privilege regarding the preservation of property is an example of the operation of public right to modify the principle of decision that would hold as a matter of private right. The logic of the concept of property gives the proprietor a right to exclude. As is the case with all justifications, the privilege formulated by Pufendorf does not affect the scope or basis of the underlying right. To see in the operation of the privilege a ground for reconsidering the fault-based nature of tort law or the divide between nonfeasance and misfeasance is to commit what Kant stigmatized as the ‘common fault of experts on right.’36 V

Conclusion

In this lecture, I have presented a number of examples of the impact of public right on the standard rights and duties of private law. There are many such examples. On the publicness side, Kant himself enumerated several others from the law of his own day.37 From a common law perspective, one might also include circumstances in which the plaintiff’s burden of proof is relaxed, for instance, in cases of uncertainty about factual causation in tort law. Kant explicitly mentioned the plaintiff’s burden of proof as an aspect of the defendant’s innate right to be considered beyond reproach in the absence of an act that wrongs another. The basis of the plaintiff’s burden is, therefore, anterior to the transition from the state of nature. In a manner reminiscent of Kant’s remark about the common fault of experts on right, some modern scholars have reacted to the difficult cases of causal uncertainty by initiating a wholesale revision of tort law’s conception of causation.38 A more Kantian approach would seek to achieve a reasonable degree of public ascertainability while minimally impairing the conceptual integrity of tort law. On the systematicity side, many further possible examples come to mind from widely disparate legal contexts. In this group, one should, perhaps, include the following: defences to defamation such as privilege and fair comment as well as other tort defences; statutory illegality as a defence to a contract action; doctrines, such as the barring of oppressive 36 Cited at note 13, supra. 37 These examples are that donative contracts are enforceable, that in a gratuitous bailment for the benefit of the bailee the risk of loss is on the bailor, that purchase breaks a lease, and that evidentiary oaths are considered probative for legal purposes. 38 The most thorough and interesting version of this is found in Ariel Porat & Alex Stein, Tort Liability under Uncertainty (Oxford: Oxford University Press, 2001).

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remedies, that are the common-law analogues to civilian ideas of abuse of rights;39 entitlements that transcend privity of contract, such as the right of a third party beneficiary to enforce a contract in order to effectuate the performance objectives of the contracting parties40 or the right to enjoin a contracting party with notice of a previous contract from using property in a manner inconsistent with that contract;41 certain kinds of invocations of public policy, such as preventing murderers from inheriting from their victims;42 and the horizontal application of Charter values to private law.43 What, then, is the character of private law when subjected to the institutional guarantees of public right? In the Kantian view, those institutions are the products and representatives of the united will of all, which connects everyone to everyone else. The omnilaterality of this will not only grounds the authority and legitimacy of the court as well as of other public institutions; it also informs the court’s view of how right holders are related. Under public right, the publicness and systematicity of the legal order as a whole may, in the appropriate circumstances, warrant the adjustment of one person’s rights and freedoms because of the presence of someone else’s. Right holders thereby become reciprocally determining participants in the legal system. The reciprocal determination of elements that exist independently of one another but are, nonetheless, combined together into a single whole is the essential feature of Kant’s conception of community.44 On the model of Kant’s famous characterization of morality as forming a kingdom of ends,45 one might regard public right as transforming private law into a community of rights.

39 Ernest J. Weinrib, ‘Two Conceptions of Remedies’ in Charles EF Rickett, ed, Justifying Private Law Remedies 3 at 27–31 (Portland, OR: Hart, 2008). 40 Melvin A Eisenberg, ‘Third Party Beneficiaries’ (1992) 92 Colum L Rev 1358. 41 De Mattos v Gibson, (1858) 45 ER 158 (CA); see Sarah Worthington, Proprietary Interests in Commercial Transactions (Oxford: Oxford University Press, 1998) at 101–19. 42 Riggs v Palmer 22 NE 188 (NY Ct App 1899). 43 Lorraine Weinrib and Ernest J Weinrib, ‘Constitutional Values and Private Law in Canada’ in Daniel Friedmann & Daphne Barak-Erez, eds, Human Rights in Private Law (Portland, OR: Hart, 2001) at 43. 44 Kant, Critique, supra note 1 at B111 –3. 45 Immanuel Kant, Groundwork of the Metaphysics of Morals, in Mary J Gregor, ed and trans, The Cambridge Edition of the Works of Immanuel Kant: Practical Philosophy (Cambridge, UK: University of Cambridge Press, 1996) at 4:433.

Allan Beever*

FORMALISM IN MUSIC AND LAW†

Though apparently dead and buried for decades, formalist approaches to law appear to be gaining ground within the academy. This advance, however, has been strongly resisted by proponents of the alternative, functionalist, view. To many of them, formalism seems open to devastating, and indeed obvious, criticisms. In this article, I argue that these criticisms are without force, as they are based on misunderstandings concerning the formalist project. I demonstrate this by comparison with formalist approaches to another subject matter: music. In that area, too, formalism initially faced considerable challenge, but it survived to become the dominant view. It is submitted that the popular criticisms of formalism examined herein are no barrier to a similar outcome for formalism with respect to law. In that way, this article is intended as a defence and celebration of the path-breaking work of Ernest Weinrib. Keywords: formalism/corrective justice/Weinrib/music/legal theory I

Introduction

I first met Ernie Weinrib in 1999 when I went to his office to ask whether he would supervise my MSL dissertation. I was relatively new to Toronto and very new to the law, having only recently left the Philosophy Department at the University of Auckland. Ernie asked about my background. I told him that I had recently finished a PhD in aesthetics, concentrating on the philosophy of music. To my surprise, this information interested Ernie. He fetched a newspaper clipping from his filing cabinet: a New York Times article containing a brief discussion of different approaches to musical analysis. Some, it noted, approached music through the lenses of composers’ biographies or psychologies or through social or economic history. Others insisted that a proper understanding of music focuses on the works themselves – specifically on their formal features. Ernie had a question for me about this debate: Who won? I had no idea why a law professor would consider this to be an important question – though, as I now know, Ernie’s academic interests are much wider than those of the average lawyer. However, at last, I think I know. Though law and music are very different phenomena, there is much that lawyers can learn from the way in which the study of music has developed.

* Professor of Law, University of South Australia † Thanks to Charles Rickett and Arthur Ripstein. Thanks also to the Leverhulme Trust for the Major Research Fellowship that facilitated the writing of this article. (2011), 61

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DOI: 10.3138/utlj.61.2.213

214 UNIVERSITY OF TORONTO LAW JOURNAL Ernie agreed to supervise my dissertation. For his own sake, this was surely a mistake. The year began well. Ernie’s tort lectures were extremely engaging. In fact, due to the relaxed and affable tone in which they were given and their extraordinary intellectual depth, they were almost hypnotic. And they were remarkably different from what I had been led to expect by those of my philosophical friends whose fear of flipping burgers for a living had driven them to law earlier than I: ‘It’s just cases, cases, cases. No analysis at all. No thinking.’ But we were constantly asking, ‘why?’ And, astonishingly, I often found the question surprisingly easy to answer. It all just seemed to make sense. But that became the problem. Eventually I realized that the sense it was making was totally inconsistent with everything that I had believed about the law before I had started the course. This probably reveals something negative about my character, but my way of responding to this difficulty was to try to make myself disbelieve the sense that I found in the law. The ‘crowning glory’ of that attempt was my dissertation. Ernie read it. We had lunch and talked about it. He destroyed it. He did so in a very Ernie-like way. Mortifyingly, he just kept making sense. ‘But’ I would say, confident that I had at last gained a foothold, ‘such as such can’t be right because of so and so.’ And Ernie would respond with calm and reasoned sense, and the thing that I had thought so obviously wrong started to seem quite plausible after all. I would have felt a complete fool were it not for the fact that Ernie has the remarkable gift of being able to show you why you are completely wrong while all the while conveying respect and esteem. Why was I so convinced? Because I realized that my criticisms rested on misunderstandings of the view I was attacking. And I recognized those misunderstandings. They are found, too, in the history of the philosophy of music. They are misunderstandings about the nature of formalism. What is the answer to Ernie’s question? Who won? The formalists won. Of course they did. This article begins by presenting a very brief account of the development of the philosophy of music and the rise of formalism within that discipline. It then explores and responds to criticisms of legal formalism, specifically as it relates to tort law, utilizing analogies with music. It shows that these criticisms rest on misunderstandings about the nature of that theory. The analysis concentrates, for the most part, on one recent article: Roderick Bagshaw’s ‘Tort Law, Concepts and What Really Matters.’1 I focus on this because it is, in my view, the best criticism of 1 Roderick Bagshaw, ‘Tort Law, Concepts and What Really Matters’ in Andrew Robertson and Hang Wu Tang, eds, The Goals of Private Law (Oxford: Hart, 2009). Bagshaw begins by arguing that the formalist wrongly insists on the use of ‘classical’ concepts that involve a ‘checklist’ approach. This is a misunderstanding, however. Suffice to say

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formalism to be produced by an academic from outside North America. As I am myself so based, I felt that this thoughtful article demanded an answer. Moreover, a discussion of Bagshaw’s article is particularly appropriate here, as it is aimed primarily at three theorists: Weinrib, Peter Benson, and myself;2 that is, at the person whose work is celebrated in this special edition of the University of Toronto Law Journal and at two of the celebrants. II

Formalism in music

Until recently, the philosophical study of art has been dominated by the desire to answer the challenge thrown down by Plato in The Republic: that art is a mere distraction from what really matters; in particular, that it presents appearances rather than knowledge and so would be forbidden in the ideal state.3 Advocates of the representational arts – painting, poetry, and so on – had comparatively little difficulty responding to this charge, but lovers of music had a much harder time. Various suggestions were made. Among the most popular were the ideas that music gains meaning in virtue of expressing the emotions of the composer, by arousing emotions in the listener,4 or – a theory that had an enormous influence on the composers of the nineteenth century – by expressing the inner nature of reality.5 All of these suggestions failed, however. And they failed for the same basic reason. They draw attention away from the object that one is meant to be analysing: the music. Understanding and appreciating music is not about attending to composers’ or listeners’ emotions or discovering metaphysical truth. Music is not a window through which one sees something else. The object of musical understanding and appreciation is music itself.6

2 3 4 5 6

here that, for a Kantian such as Weinrib or me, there are ultimately no classical or checklist concepts at all; see Immanuel Kant, Critique of Pure Reason, translated by Paul Guyer & Allen Wood (Cambridge: Cambridge University Press, 1998) at A132–3/ B171–2. (The page citations here are to the first edition of Critique of Pure Reason, published in 1781, and the second edition, published in 1787.) Thankfully, Bagshaw’s other arguments can be detached from this claim. Bagshaw, ibid at 252, n 27. Plato, The Republic, translated by Desmond Lee (London: Penguin Books, 2007) at Bk 10. For an excellent analysis of these theories, see Stephen Davies, Musical Meaning and Expression (Ithaca, NY: Cornell University Press, 1994) at ch 4 [Davies, Musical Meaning]. Arthur Schopenhauer, The World as Will and Representation, translated by E.F.J. Payne (New York: Dover Publications, 1966) vol 1 at §52. For a brilliant account of this with respect to art in general, see Arthur C. Danto, The Philosophical Disenfranchisement of Art (New York: Columbia University Press, 1986) at ch 1.

216 UNIVERSITY OF TORONTO LAW JOURNAL Though there is much to this observation, for our purposes it can be illustrated sufficiently by comparing the following two passages, the first functionalist and the second formalist. Imagine that one is trying to gain a better appreciation of Mozart’s Piano Concerto in E flat, K 271. This is what Richard Wagner tells us (about music in general): The more our experiences [Anschauungen 7 ] are removed from [the] level [of everyday reality], the more arduous their expression becomes, until the philosopher, faced with the danger of not being understood at all, uses language really only in its invented sense, or the artist takes refuge in the wonderful tools of his art, useless for ordinary life, and creates for himself an expression that even – in the most auspicious circumstances – can be understood only by those who already share his experience. It is indisputably music that is the appropriate medium for the expression of this experience, and one could call the inner nature of all experience music.8

How much wiser are you now? Compare this with a passage from Charles Rosen’s classical commentary, here concerning the opening of the work: [O]nce it is accepted that the soloist’s role is to be a dramatic one, the ritornello [here specifically the orchestral beginning of a concerto] poses a problem, simply . . . that the audience is waiting for the soloist to enter. In other words, to a certain extent the opening tutti always conveys an introductory atmosphere: something is about to happen . . . [T]his introductory character trivializes the opening, and the material first heard in it tends to lose its importance and its urgency. . . At the age of twenty, with what may be considered his first large-scale masterpiece in any form, Mozart solved this problem in a manner as brutal and as simple as breaking the neck of a bottle to open it. At the opening of the Concerto . . . the piano participates as a soloist in the first six measures, and is then silent for the rest of orchestral exposition. It was a solution so striking that Mozart never uses it again (although it was developed by Beethoven in two famous examples and by Brahms in an expansion of Beethoven’s conception). With one stroke, the opening presentation is made more dramatic and the orchestral exposition is given the weight it might have lacked.9

This one passage taught me more about music than all of the material I had read to that point concerning the lives of composers, the cultural history of music, or musical metaphysics. Realizations of this kind have not led modern philosophers to deny that music is meaningful. Rather, they hold that music’s meaning lies 7 I would normally translate this term in this context as ‘intuitions.’ However, the meaning of this and its connection with Kant’s philosophy is likely to be lost here. ¨ ber Franz Liszt’s symphonische Dichtungen’ in Hans von 8 Richard Wagner, ‘U Wolzogen, ed, Sa¨mtliche Schriften und Dichtungen, 6th ed (Leipzig: Breitkopf & Ha¨rtel, 1911) vol 5 at 183–4. 9 Charles Rosen, The Classical Style, 2nd ed (London: Faber Paperbacks, 1976) at 197 –8.

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in its form. It has been argued, for instance, that music is expressive of emotion in virtue of its formal characteristics. In short, the idea is that music moves in a way that resembles the movement characteristic of people feeling certain emotions.10 The victory of formalism in this area is so complete that philosophers tend to label themselves formalists only if they hold a particularly austere version of the theory: for instance, if they hold that music cannot express emotions at all11 or cannot be about anything.12 But we should not allow this to hide the fact that the vast majority of modern philosophers hold that music is primarily and almost entirely to be appreciated for its form. Nothing more needs to be said concerning music at this point. This is because the formalist approach is now so well accepted that I need provide no more preparation for the analogies I draw between music and law below. III

Formalism and interpretation

Formalism is an interpretive approach to the law.13 It seeks to find and elucidate an intelligible order in the law through analysis of the law’s form.14 According to Weinrib: Tort law, for instance, connects the plaintiff to the defendant through an institutional procedure (the plaintiff– defendant lawsuit) [bipolarity] and through an ensemble of doctrines and concepts (cause, fault, duty, remoteness, and so on). We can inquire into the justification for any of the relationship’s features: Why does the procedure link a specific plaintiff to a specific defendant? Why is the causation of injury generally a precondition of liability? Why does fault in an action for negligence consist in the breach of an obligation rather than a subjective standard of care? Why is the defendant, if liable, obligated to pay precisely what the plaintiff is entitled to receive? The relationship between the parties to a tort action is coherent if the answers to all these questions cohere.15 10 Stephen Davies, ‘The Expression of Emotion in Music’ (1980) 89 Mind 67; Peter Kivy, The Corded Shell (Princeton, NJ: Princeton University Press, 1980); Peter Kivy, Sound Sentiment (Philadelphia, PA: Temple University Press, 1989); Davies, Musical Meaning, supra note 4 at ch 5. 11 E.g., Eduard Hanslick, The Beautiful in Music, translated by Gustav Cohen (New York: Liberal Arts Press, 1957); Eduard Hanslick, On the Musically Beautiful, translated by Geoffrey Payzant (Indianapolis, IN: Hackett, 1986). 12 E.g., Peter Kivy, Music Alone: Philosophical Reflection on the Purely Musical Experience (Ithaca, NY: Cornell University Press, 1990). 13 Ernest J Weinrib, The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995) at 25 –8 [Weinrib, Idea]. 14 For discussion of the concept of intelligible order, see Stephen A Smith, Contract Theory (Oxford: Clarendon Press, 2004) at 5. 15 Weinrib, Idea, supra note 13 at 32 –3.

218 UNIVERSITY OF TORONTO LAW JOURNAL The last point is crucial. As Weinrib insists, guiding this investigation is, and must be, the requirement that the resulting picture of law be as coherent and unified as possible.16 Many have questioned this insistence. What is so important about coherence? they ask. Similarly, while it might be held that coherence is valuable, all things considered, they regard it as only one value among many and so not something that should be singled out as of distinctive importance. Representative of this line of thought, Bagshaw asks, ‘Should “coherence” be treated as one of the principal goals of tort law?’17 Before we answer Bagshaw’s question, it is worth asking why he raises it. After all, Weinrib is usually understood to deny that the law has any goals at all.18 Why, then, ask whether he is right to think that coherence is one of the law’s most important goals? The answer, as Bagshaw points out,19 is that Weinrib speaks of coherence as an aspiration of the law and maintains that coherence is important because of its link with justification. As Weinrib puts it, ‘[C]oherence matters because justification matters.’20 Bagshaw takes this to mean that coherence justifies; that the law is justified by its coherence. But this is a misunderstanding. Certainly, Weinrib claims that coherence and justification are linked. His view is that coherence is a necessary condition for justification. But that leads to the conclusion that coherence must be a goal of the law only on the view that the appropriate method of justifying the law is in terms of its goals. This, as is well known, is not Weinrib’s view. In other words, the position under examination simply insists on a functionalist understanding of law, distorts Weinrib’s theory so that it can be categorized in functionalist terms, and then – surprise – finds the theory wanting. Moreover, while Bagshaw is right to answer his question, ‘Should “coherence” be treated as one of the principal goals of tort law?’ in the negative,21 his argument in this regard is odd. He maintains that ‘it is difficult to accept [coherence] as a primary goal of the product of an ongoing series of practical attempts to make the world a better place. Do cities strive for coherence?’22 The idea that cities do or should strive for coherence (as an end) is, of course, preposterous. But that very fact reveals just how far from understanding Weinrib’s theory Bagshaw is. 16 Ibid at 29 –36. 17 Bagshaw, supra note 1 at 255. See also John Gardner, ‘The Purity and Priority of Private Law’ (1996) 46 UTLJ 459 at 471 [Gardner, ‘Purity and Priority.’] 18 E.g. Gardner, ‘Purity and Priority,’ supra note 17 at 462; Robert Stevens, Torts and Rights (Oxford: Oxford University Press, 2007) at 325. 19 Bagshaw, supra note 1 at 255, n 36. 20 Weinrib, Idea, supra note 13 at 39. 21 Bagshaw, supra note 1 at 255– 6. 22 Ibid.

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I doubt that anybody has ever thought that coherence is an end in itself. It is, rather, a necessary condition for the achievement of some important ends. In music, that end is the creation of beautiful and satisfying musical works, and coherence is a necessary condition for that end because works that do not ‘hang together’ strike us as unsatisfactory. In science, the end is the production of informative theories about the world, and coherence is necessary to that end as a theory can be informative only to the extent to which it is coherent. What is the end in law? As Weinrib tells us, there are two ends: intelligibility and justification.23 I examine the former here and return to the latter in Part VII below. Imagine two cases: P1 v D1 and P2 v D2. Say that, in the first case, P1 succeeds but that, in the second case, P2 fails. Now, one of the things that we want to know is why there were these differing results. We want to understand. We go to our local legal guru and ask why P1 succeeded. He tells us that P1 succeeded because plaintiffs always succeed. No doubt, we will go away unsatisfied. But why, exactly? Not because the explanation is inadequate in its own terms. If plaintiffs always succeeded, that would at least go some way to explain why P1 succeeded. The problem, of course, is that the guru’s explanation is inconsistent with the fact that P2 failed. And that means that, given that we know P2 failed, we cannot think that the guru’s account is a genuine explanation. What has this to do with law? Surely, it cannot be thought that the explanations given by non-formalists are like that of the guru? On the contrary, however, they are often precisely of this kind. Take, for instance, the appeal to insurance as a reason for not imposing liability. In Lamb v Camden London BC, Lord Denning argued that the plaintiff must fail because the damage she suffered was usually covered by insurance. By this means the risk of loss is spread throughout the community. It does not fall too heavily on one pair of shoulders alone. The insurers take the premium to cover just this sort of risk and should not be allowed, by subrogation, to pass it on to others . . . So here, it seems to me that if [the plaintiff ] was insured against damage to the house and theft, the insurers should pay the loss. If she was not insured, that is her misfortune.24

This sort of argument is de rigueur in academic analysis. But, as an explanation of the decision in Lamb, it is entirely inadequate. This is because, as we all know, there are many other cases in which plaintiffs are injured in circumstances for which they are usually insured where that fact presents no bar to recovery. Motor vehicle accidents are an example. Thus, Lord Denning’s explanation was no better than the guru’s. But that is what most explanation in tort law is like. 23 Weinrib, Idea, supra note 13 at 38 –44. 24 Lamb v Camden London BC [1981] 1 QB 625 (CA) at 637 –8 [Lamb].

220 UNIVERSITY OF TORONTO LAW JOURNAL In general, the modern lawyer copes with this difficulty by adopting the stance I have elsewhere labelled ‘limited rationality.’25 For instance, she analyses one case in which a plaintiff failed by appeal to the notion that the plaintiff was or should have been insured. Her analysis is structured and detailed, her arguments are valid, and so on. But when she turns to another case, she leaves insurance out of her calculations altogether. Again, though, her analysis of the second case is structured and detailed, and her arguments are valid. The problem is that she fails to carry over her analysis of the first case to the second. Limited rationality is a defence mechanism. It is the way the modern lawyer prevents her understanding of the law from collapsing into chaos. In part because of this – though sometimes simply because it is the ‘done thing’ – it is vigorously defended by modern lawyers. That defence, however, never deals with the ultimate issue. It cannot. Limited rationality cannot rationally be defended. One of the most remarkable features of modern legal analysis is the amount of energy that is expended attempting to hide from this fact. One such attempt – an attempt to defend the defence mechanism – has recently been presented by Andrew Robertson.26 Robertson tries to explain and justify the refusal of the law to take policy considerations to their logical conclusions by pointing to institutional constraints on the use of policy, such as the need for incremental development of the law and the doctrine of precedent. On this view, the reason judges consider insurance in some cases but not in others is that they are only sometimes constrained to ignore the issue. The first thing that must be said about this argument is that it is most oddly directed at the formalist. Is it really thought that he has not heard about the need for incremental development of the law or the doctrine of precedent? What is particularly strange is that Robertson also refers, in this context, to concerns frequently found on the lips of formalists: consistency, coherence, bipolarity, and the need to do justice as between the parties. It is not news to the formalist that these constraints exist. Nor it is news that they, in some way, constrain policy-based reasoning. For the formalist, constraints on policy-based reasoning exist because policy considerations have a normative structure inconsistent with the form of the law. Insurance, for instance (at least as presented by Lord Denning), focuses entirely on the plaintiff and ignores the defendant. Similarly, deterrence focuses solely on the defendant, disregarding the plaintiff. As discussed below, the formalist maintains that, because these 25 Allan Beever, Rediscovering the Law of Negligence (Oxford: Hart, 2007) at 22–3 [Beever, Rediscovering]. 26 Andrew Robertson, ‘Constraints on Policy-Based Reasoning in Private Law’ in Andrew Robertson & Hang Wu Tang, eds, The Goals of Private Law (Oxford: Hart, 2009).

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concerns do not engage both parties, they cannot explain why one party is liable to another. In consequence, the formalist maintains that the constraints show that policy arguments are never appropriate. Hence, the formalist explains why a certain set of constraints exists and why that set demonstrates that policy arguments are never admissible. But Robertson wants to claim that the formalist goes a step too far. For him, policy is sometimes admissible. The question is, ‘why?’ To establish his position, Robertson must show why his set of constraints exists and why it sometimes allows but sometimes forbids policy arguments. He does none of these things. Robertson argues that judicial practice is such that policy concerns are only sometimes admissible. He is right about that. But pointing to a practice is not enough to establish the appropriateness or rationality of that practice. In consequence, Robertson’s position is not a defence of limited rationality. It is simply the assertion of it.27 Alternatively, one could argue that Robertson’s set of constraints is justified on policy grounds. But if that were so, then it would be quite misleading to suggest that these are constraints on the use of policy.28 On this view, the approach is entirely policy based; it is just that some policies are believed to override others.29 But that is a conclusion that can be reached only after consideration of all of the relevant policy concerns. The constraint, here, is an illusion. In The Idea of Private Law, Weinrib makes the general point being made here by focusing on two policy concerns said to animate the law of tort: deterrence and compensation.30 His argument is that these cannot provide a coherent explanation of the law because neither alone nor both together can explain why a plaintiff would be liable to a defendant. Deterrence focuses entirely on the defendant. It could explain why a defendant is penalized for performing a certain action but not why that ‘penalty’ should be paid to the plaintiff. Compensation focuses entirely on the 27 This is not the only example. Consider also ibid at 278: ‘If the denial of rights that would otherwise exist on the basis of community interest does amount to “judicial confiscation” or treating the plaintiff “merely as a means to others’ ends,” a broader view reveals that this is something that happens throughout private law’ (quotations from Ernest J Weinrib, ‘Does Tort Law Have a Future?’ (2000) 34 Val U L Rev 561 at 566 and Beever, Rediscovering, supra note 25 at 176– 7, respectively). Indeed, but how could pointing to this practice possibly defend it? 28 A person concerned only to realize his self-interest might come to the conclusion that it is best not to think too much about his self-interest or he would find himself unable to get on and enjoy life. The decision to put that realization into effect is not the placing of a constraint on his self-interest. It is simply the realization of his self-interest. 29 I dealt with this approach in Beever, Rediscovering, supra note 25 at 11– 9, 182–94. Though I am identified as one of the targets of Robertson’s argument, supra note 26 at 261, n1, this material is not discussed. 30 Weinrib, Idea, supra note 13 at 42 –4.

222 UNIVERSITY OF TORONTO LAW JOURNAL plaintiff. It could explain why the plaintiff receives recompense but not why that recompense comes from the defendant. Accordingly, the most basic feature of this area of the law, the combining of the plaintiff and the defendant in a single action in which the former alleges that he was wronged by the latter, goes unexplained. At best, such a view sees what is central to the law as a convenient accident: the plaintiff and the defendant are put together so that the deterring and the compensating can be done at the same time. But as Weinrib points out, this, too, is inadequate. If we took deterrence seriously as a goal, then we would not demand that defendants be deterred only when plaintiffs were compensated or vice versa. The policy concerns fail to render the law intelligible. A possible reply to these arguments is to accept that it is not appropriate to pick and choose among policy considerations; rather, it should be argued that decisions are properly made by considering all relevant policy issues. On this view, then, a full explanation of a legal decision would take into account all of the policy issues, showing how they applied, how they outweighed or were outweighed by other concerns, why they were not relevant to the specific set of facts, and so on. Courts, of course, do not give explanations of this kind. When they consider polices at all, they examine only a very few. For the most part, particularly at first instance, the explanations offered by courts are focused on issues such as standards and duties of care, remoteness, causation, defences, intentions, and so on. These are not policies. Accordingly, on the view under examination, they are not part – or at best are only a very small part – of a proper explanation of the decisions that contain them. There is no better statement of this view than the following passage from Lord Denning’s judgment in the case already introduced. The truth is that all these three – duty, remoteness and causation – are all devices by which the courts limit the range of liability for negligence or nuisance . . . ‘The law has to draw a line somewhere.’ Sometimes it is done by limiting the range of the persons to whom duty is owed. Sometimes it is done by saying that there is a break in the chain of causation. At other times it is done by saying that the consequence is too remote to be a head of damage. All these devices are useful in their way. But ultimately it is a question of policy for the judges to decide.31

This view has also been promoted by John Fleming32 and Jane Stapleton.33 It is what we get when proponents of the modern view refuse to be 31 Lamb, supra note 24 at 636 –7. 32 E.g., John Fleming, The Law of Torts, 9th ed (Sydney: LBC Information Services, 1998) at 153. 33 E.g., Jane Stapleton, ‘The Golden Thread at the Heart of Tort Law: Protection of the Vulnerable’ (2003) 24 Austl Bar Rev 135.

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seduced by limited rationality. These thinkers have allowed the intelligibility of the law to collapse into chaos. In the passage above, we can see Lord Denning being quite explicit about this. For him, duty, remoteness, and causation are all a smokescreen for policy. There is no point, then, in trying to understand these legal categories. On this view, there is nothing to understand. The ideas have no content. Just forget about them and concentrate on the policies. Again, this view is explicitly adopted by Fleming and Stapleton.34 As I have argued elsewhere,35 these thinkers are to be commended for taking the modern view to its logical conclusions. But the cost of this view must be noticed. It holds that the law is unintelligible. It is important to spell out the content of this claim. I am not suggesting that these thinkers advance a theory that has the unacceptable conclusion that the law is unintelligible, that they do not realize this, but were they to do so they would see that their theories must be abandoned. My claim is not of this kind. Its point is not to criticize. It is rather that these thinkers explicitly claim that the law is unintelligible and that we should shift our focus to other concerns, concerns that can be captured under the umbrella term ‘policy.’36 Now, it might turn out that the law is, indeed, unintelligible and that the attempt to understand it via its categories is futile. But we are entitled to come to that conclusion only after the attempt has failed. What is remarkable about modern legal analysis, at least as it relates to tort law, is that it has so firmly set itself against even the attempt. Surely, as lawyers, we want to see whether the law can be understood. For instance, we would like to see whether the duty of care in the law of negligence is a meaningful concern that can help to explain why a plaintiff succeeds or fails. And we surely want to be able to explain why it is that the result of a tort action is often that a defendant is found liable to a plaintiff. In order to do this, we must see if sense can be made out of the categories that we find in the law. For instance, can we explain why a defendant is liable to a plaintiff in the law of negligence by speaking of standards and duties of care, of remoteness and causation, and of (the absence of ) defences? If we are to do this, then we must approach the law in as coherent and unified a manner as possible. For instance, we must be able to explain

34 See Stapleton, ibid; Fleming, supra note 32. And note that it is these views that are reductionist: they reduce law to policy. The idea that a theory that attempts to explain the content of the law’s categories could be reductionist is the result of considerable confusion. 35 Allan Beever, ‘Policy in Private Law: An Admission of Failure’ (2006) 25 UQLJ 287 at 300 [Beever, ‘Policy’]. 36 Hence, those who have defended these thinkers from these allegations have simply refused to take their theories seriously.

224 UNIVERSITY OF TORONTO LAW JOURNAL why the plaintiff succeeded in Donoghue v Stevenson 37 but not in Hedley Byrne & Co Ltd v Heller & Partners Ltd. 38 And those explanations must cohere with each other and with all of our other explanations of other cases (including with the possible conclusion that a case was wrongly decided). That is what it means to understand, explain, interpret, and render the law intelligible. There is nothing new in this idea. In particular, it is important to refute the embarrassing suggestion that the ‘interpretive’ approach to law owes its origin to Ronald Dworkin – a claim that does injustice both to interpretive legal theory and to Dworkin. As Weinrib notes, the approach has its origin in the philosophy of the ancient Greeks.39 And the idea that one understanding of a phenomena is better than another to the extent that it is coherent and unified is well established in every field of inquiry. Against this idea, however, Bagshaw raises a number of arguments. First, he maintains that it calls for a degree of coherence and unity not necessarily found in law.40 What is the force of this argument? To begin, the quest for coherence and unity does not require absolute uniformity. Coherence and unity are widely regarded as key values in music, as in any art, but that does not mean that a work more perfect that Mozart’s String Quintet no 6 in E flat, K 614 would be one of the same length in which the performers played only a constant middle C. What is called for is not absolute sameness but rather maximum unity, given the subject matter.41 In music, the subject matter is, of course, the music: the melodies, harmonies, rhythms, patterns, and so on of the sounds. And in musical explanation, what is required is a coherent and unified analysis of a work’s structure. For instance, we might want to know why a piece moves to the subdominant at a certain point. An appropriate answer to this question will be of the following kind: It moves to the subdominant because the earlier move to the dominant created tension in the music that needs to be resolved. And the question might then be: Why the first move to the dominant? The answer might be: It moved to the dominant because, at that point, an increased level of tension added to the work’s dramatic power. The account provided, then, is unified and coherent – and indeed, it reveals the unity and coherence in the work itself – but the account is anything but uniform.

37 38 39 40 41

M’Alister (or Donoghue) (Pauper) v Stevenson [1932] AC 562 HL (Scot) [M’Alister]. [1964] AC 465 HL (Eng). Weinrib, Idea, supra note 13 at 25. Bagshaw, supra note 1 at 250. As Kant put it, supra note 1 at A644/B672, the role of reason is to give ‘concepts the greatest unity alongside the greatest extension.’

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Turning to law, the subject matter is the institutional procedures, doctrines, and concepts discussed at the beginning of this section. And we require as unified an understanding of this as is possible. That does not imply that we need one simple explanation for the whole of the law of tort, still less the whole of private law. The reason why one defendant is found liable for negligence need not be, and is not, the same reason why another is found liable in trespass.42 But the reason for the first must cohere with and form as much of a unity as possible with the second. In other words, if we are to understand the law of negligence and the law of trespass, we cannot account for the differences between these areas of law by saying that the differences exist ‘just because.’ We must give a genuine account of those differences. Bagshaw also maintains that the formalist ought to accept that the best possible account of the law may hold that the law is less than fully coherent or unified. In fact, the best account may show that the law is quite disordered.43 This claim is quite right, but it is not an objection to formalism. The formalist position is that relevant phenomena must be interpreted in as coherent and unified a manner as possible. We have seen why this is the case above. But that by no means guarantees that any particular phenomenon will be entirely coherent or unified. Berlioz’s Symphony Fantastique is less coherent and unified than Mozart’s Symphony no 41 in C Major K 551 ( Jupiter). But one can see this only by focusing on the works’ forms and by trying to interpret them in as coherent and unified a manner as possible. The point is just that one will be more successful with respect to the latter work than with respect to the former. The same approach applies to law. It is probably true that the ( positive) law of contract is more coherent and unified than the ( positive) law of tort, but that is a judgement that can be made only after one has attended to the forms of these laws and attempted to interpret them as coherently and in as unified a fashion as possible. Moreover, it is evident that formalists do not think that the positive law is fully coherent and unified. That is why they criticize certain areas of the law. In fact, far from being invisible to the formalist, the disorder that exists is not only well recognized; it is one of the formalist’s chief motivations for

42 Unless, that is, the reason is expressed at a high level of abstraction, in which case, on its own, it would not explain. For instance, it is possible that both of the examples are instances of corrective justice. But the appeal to corrective justice on its own is too vague to explain either example. Note, however, that this position does not imply that the full answers to such questions need appeal to values other than ones that belong to corrective justice. The need for specificity is not the need for alternative principles of justice. 43 Bagshaw, supra note 1 at 250.

226 UNIVERSITY OF TORONTO LAW JOURNAL writing. For my own part, for instance, it is because I think that White v Jones 44 creates disorder that I have written about it.45 As the formalist sees it, the chief problem with the mainstream, modern approach in this regard is that it so readily accepts the law’s disordered surface appearance. It expresses no interest in seeing whether that appearance hides a more profound reality. In that way, the modern legal scholar is like the musicologist familiar with only eighteenth-century ‘classical’ music who encounters serial composition for the first time, fails to detect any pattern in it, and so insists forever on seeing it as chaotic and unstructured. The dearth of attempts to show that sense can be made out of the apparent disarray of the law tells us something significant about modern legal scholarship.46 It tells us that it has ceased to treat tort law as an academic discipline. I return to this theme below. Bagshaw also argues that the formalist is committed to the idea that the law is static and unchanging. There is some truth in this. Formalist approaches to law call for less change in the law than we have seen over the last fifty years or so. Most lawyers, I suspect, would welcome that, however. But Bagshaw is wrong to think that formalism sets itself against legal change tout court. When we listen to music, focus on its form can reveal mistakes made by the composer. For instance, we might think that Mendelssohn’s finale to his Symphony no 3 in A Minor, op 56 (Scottish) is a partial failure because the movement’s final section seems out of proportion with the sections that precede it and because, to an extent at least, it contains material that breaks the unity of the movement as a whole (to my ear, at least, this is especially true of the accelerando). In law, focus on form can lead us to think that certain cases have been wrongly decided. As indicated above, I have argued that the decision in White v Jones was wrongly decided because it is impossible to support liability in that case consistently with the institutional procedures, doctrines, and concepts relevant to the law of negligence. Specifically, the defendant in White v Jones did not infringe the plaintiffs’ rights and therefore

44 [1995] 2 AC 207 HL (Eng). 45 See Allan Beever, ‘A Rights-Based Approach to the Recovery of Economic Loss in Negligence’ (2004) 4 OUCLJ 25 at 39–44; Beever, Rediscovering, supra note 25 at 260–9. 46 It should be noted, however, that Bagshaw and Nicholas McBride have attempted to show that the law is less disordered than it appears to be; Nicholas J McBride & Roderick Bagshaw, Tort Law, 3rd ed (Harlow, UK: Pearson Education, 2008). The problem with their approach is their continued attachment to functionalism. I cannot deal with this adequately here, but see the discussion of Robertson’s view at note 26 above.

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did not wrong the plaintiff.47 Reasons in favour of liability, then, must violate the requirement of bipolarity. If those arguments were accepted, then White v Jones would be overruled; a legal change. It is important to see that the problem with White v Jones is not a product of the fact that it is a relatively new legal development. The issue is its fit with the institutional procedures, doctrines, and concepts of the law of negligence; not its age. I have argued that Winterbottom v Wright 48 and In Re Polemis and Furness 49 were wrongly decided for the same general reason. Formalism does not insist on retention of the status quo. Moreover, focus on form can be revealing in quite unexpected ways. For instance, attention to musical form may reveal that the composer did something other than what she intended. An inexperienced composer might believe that she has written a modulation from C major to E minor when, in fact, the music reveals that the modulation is to G major. Here, the composer believed that she did one thing when the music’s form reveals that she did another. Due to the expertise of composers, this is quite rare, but I am familiar with the phenomenon from my own (half-baked) attempts at composition. The mistake is more common in law. It is frequently the case that a judicial decision can be explained in a coherent and unified way that differs markedly from the explanation provided by the court.50 Again, this calls for change of a sort: a change not in legal outcomes but in legal understandings. A more difficult, but an even more important, issue concerns the identification of the phenomenon of law. Bagshaw writes, ‘[T]he best account of tort law . . . may present it as currently relatively disordered.’51 But what is Bagshaw talking about? Tort law, of course. But what does he take that to be? His answer would be that area of the positive law designated as ‘tort law.’ But that is not how the formalist uses the term. Again, an analogy with music can be used to illustrate this point. Most people become familiar with musical works through hearing them in performance. Because of this, we often speak of performances as if they were the works themselves. For instance, when my wife asks, ‘What are you putting on [the CD player] now?’ I might answer, ‘Ravel’s Concerto for Piano and Orchestra in G Major.’ Of course, what I mean is that I am about to play a performance of the concerto conducted, as it happens, by Pierre Boulez with Krystian Zimerman as the soloist. Works are distinct from their performances (and from the copies of 47 48 49 50 51

Beever, Rediscovering, supra note 25 at 260 –9. (1842), 10 M & W 109, 152 ER 402; see Beever, Rediscovering, supra note 25 at 115 –8. [1921] 3 KB 560 (CA); see Beever, ibid at 129 –31. Many examples can be found in Beever, Rediscovering, supra note 25. Bagshaw, supra note 1 at 250.

228 UNIVERSITY OF TORONTO LAW JOURNAL their notation; e.g. scores). Thus, a Beethoven symphony conducted by Toscanini sounds very different from one conducted by Furtwa¨ngler, and yet, they are two performances of the same work. Not all attempted performances succeed, however. For instance, if I attempt to play Beethoven’s Piano Sonata no 29 in B-flat Major, op 106 (Hammerklavier) but, due to my incompetence, it comes out sounding like ‘Chopsticks,’ I fail to perform the sonata. The content of the work is determined by its form, and I do not reproduce that content sufficiently to entitle me to claim to have performed the work. Turning now to law, imagine that the formalist is right to think that the standard of care, the duty of care, remoteness, causation, and the defences are or can be captured by principles that really do explain the law of negligence in a formalist fashion. If that were the case, then it would be both appropriate and natural to refer to those principles as ‘law.’ On this view, then, ‘the law’ refers not only to judicial decisions – that is, to the positive law – but to the principles that underlie those decisions and that law. No doubt, this will seem strange to some, but the view that law can be found in principles not captured by the positive law is found in the positive law. Its most famous statement is Lord Atkin’s concerning the duty of care in negligence: [T]he duty which is common to all the cases where liability is established must logically be based upon some element common to the cases where it is found to exist . . . At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances.52

For Lord Atkin, the content of the duty of care is not determined by what is in the books. We find in the books only instances of the duty of care. The content of the duty of care is what underlies those instances. Assuming that there is such a thing, it would be odd if we did not call it law.53 And if the formalist is right to think that the content flows from the law’s institutional procedures, concepts, and doctrines – that is, from the law’s form – then it would be natural to call that ‘law’ also. This picture closely mirrors the distinction between work and performance in music – a performance is not the work; it is an instance of the

52 M’Alister, supra note 37 at 580. It is no surprise that proponents of the modern view have found this difficult to understand. For instance, McBride & Bagshaw, supra note 46 at 73, n 5, suggest that the claim was mere invention. 53 I am aware that this is inconsistent with the view advanced in Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford: Clarendon Press, 1994) at ch 10. Suffice to say that I think that this view is wrong. Of course, I cannot demonstrate why here.

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work. A work is not exhausted by its performances; it underlies those performances. Judicial decisions are ‘performances’ or applications of underlying principles, but those principles are not exhausted by their applications. Moreover, just as attempted performances can fail, judicial decisions can fail to instantiate the relevant principles. And if we call those principles law, as I have suggested is quite natural, then a decision of this kind will be inconsistent with the law. Of course, it will not be inconsistent with the positive law – the decision is ( part of ) the positive law – but it is inconsistent with the principles that the positive law, but for this case, instantiates. Those decisions, then, are wrongly decided – literally, they get the law wrong.54 In that sense of ‘law,’ the formalist maintains that the law is well ordered and undergoes at least relatively little change. But, of course, that does not mean that the positive law is necessarily well ordered or unchanging. Again, we see that the objections to formalism are generated by insisting on non-formalist understandings of law. IV

Intelligibility and purpose

In The Idea of Private Law, Weinrib famously maintains that ‘[ p]rivate law is to be grasped only from within and not as the juridical manifestation of a set of extrinsic purposes. If we must express this intelligibility in terms of purpose, the only thing to be said is that the purpose of private law is to be private law.’55 As indicated earlier, this is routinely interpreted as the claim that private law has no purpose or that its only purpose is to be itself. That, however, is patently not what Weinrib says. He makes no claim about the function of the law. His claim is about how to grasp the law or render the law intelligible. In short, his claim is that, if we insist on understanding tort law in terms of its purposes, then the only purpose we can assign to it is to be itself. This is not because it has no other (i.e., real) purposes. It is because those other purposes do not help us to understand the law. Accordingly, Weinrib does not deny that a legislator considering replacing tort law should consider the value of that law as a deterrent or the way in which it spreads losses.56 And nor would Weinrib deny that it is valuable to have academics examining these and like issues. What is

54 ‘Wrongly decided’ is a very odd way to describe a decision that is objectionable on policy grounds. ‘Inappropriate’ or ‘bad’ would be better. Why, then, do we speak of cases being wrongly decided if not because they get the law wrong? 55 Weinrib, Idea, supra note 13 at 5. 56 And there is no reason to think, as Gardner, ‘Purity and Priority’ holds, supra note 17 at 459–66, that Weinrib denies that law has derived value.

230 UNIVERSITY OF TORONTO LAW JOURNAL denied is that examination of these issues produces an understanding of the law. Again, the analogy with music helps to reveal this. Though the purpose of music is controversial,57 it suffices here to say that it is to enrich our lives by providing absorbing and sometimes profound articles for contemplation. Naturally, musical formalists do not deny this. Their claim is that focus on such matters is not the way to understand music. If, for instance, one wants better to understand Beethoven’s late string quartets in order to increase one’s enjoyment of them so that they will further enrich one’s life, the lens though which to do this is not the enrichment of one’s life. One will not learn much about the Grosse Fuge in B-flat, op 133 by sitting, listening to it, and constantly asking oneself: how is this enriching my life? Instead, one must pay attention to the themes, their development, combination, and so on; by doing so, one will enjoy the music more and that will enrich one’s life. Understanding music is about understanding music qua music. Of course, tort law has functions in the sense that it does things that are valuable, such as deter, compensate, and spread losses.58 But these values are products of the law, they do not relate to the law qua law. Just as the pleasure I gain from listening to the Grosse Fuge is not part of the work, the deterrent effect of tort law is not part of the law. In response to arguments of this kind, John Gardner maintains that this much, surely, is already well known to all private lawyers. Lawyers devote much of their working lives to making peculiarly legal arguments in favour of new legal developments. That is what litigation in the higher courts, at any rate, is mainly about. To add that private lawyers before private law courts make private law arguments, not [for instance] public law arguments, will not come as much of a surprise in any legal system which recognizes the distinction between private law and public law in the first place, since that is normally the main point of the distinction . . . So if this is all that is meant by private law having ‘the purpose of being itself,’ then one may wonder what the fuss is about.59

These claims are astonishingly inaccurate. In particular, the descriptive claim that litigation in private law focuses narrowly on specifically private-law arguments is obviously wrong – unless this is the tautological view that ‘private law argument’ means any argument used in a private57 For discussion, see Davies, Musical Meaning, supra note 4 at chs 6 –7. 58 For an analysis of the use of ‘function,’ see Allan Beever, ‘The Law’s Function and the Judicial Function’ (2003) 20 NZUL Rev 299. There, I argue that the law cannot perform its function if judges attempt this in their judgments, an exact parallel of the argument concerning music above. 59 Gardner, ‘Purity and Priority,’ supra note 17 at 462 –3.

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law context. And while the claim is implausible when applied to lower courts, it is especially implausible when applied to higher courts. Moreover, not only is the assertion that ‘private lawyers before private law courts make private law arguments, not public law arguments’ either obviously wrong or unintelligible, it has been explicitly denied by Fleming, probably the most influential tort law academic of the second half of the twentieth century.60 That is what the fuss is about. V

Law as an academic discipline

As we know, university music departments house musical experts. These are people who have expertise in the understanding, performance, composition, and historical context61 of musical works. Some academic scholars also study the effects of music on listeners. As we might say, academics of the former kind are specialists in music as such; while those of the latter kind have expertise concerning music’s function. Though there are exceptions, the second kind of academic is usually found in psychology, rather than music, departments. Imagine that this changed. Imagine that music departments began to hire only those who studied the effects of music. Opponents of this change would rightly complain that the study of music as an academic discipline was under threat as a consequence of this policy. This would not imply criticism of the study of music’s effects or of the people who carried it out. The claim would simply mean what it said: music, as such, was being studied less and less and therefore the study of music as an academic discipline was endangered. But imagine, now, that this change happened only slowly. Imagine that, over a period of one-hundred years, music departments changed from the places that they are now into ones focused almost exclusively on the effects of music. And imagine that, one day, one person in a music department lamented that music was no longer being studied as an academic discipline. What would the reaction be? To most, the claim would seem incomprehensible. ‘But the study of music is the study of its effects,’ they would protest, ‘which is precisely what we are doing.’ Moreover, many would feel insulted or at least profess indignation on others’ behalf. The claim would appear to imply that much of the work done in music departments lacked genuinely academic status and thus that those who carried out that work were not 60 Fleming, supra note 32 at 153–4. 61 Note, then, that it is no part of my view that legal historians fail to treat the law as an academic discipline. On the contrary, with respect to tort law, they are some of the few who do.

232 UNIVERSITY OF TORONTO LAW JOURNAL genuine academics. In the face of the quality of some of that work, the claim would seem to be nothing more than pejorative rhetoric. But it would be true, nevertheless. In such a world, music would not be studied as an academic discipline. Instead, music would be treated as a lens through which human responses were studied. In this world, music would be studied by genuine academics and through the lenses of genuine academic disciplines, but those disciplines would not be ones that treated music as itself. Of course, my suggestion is that this story is an allegory for the legal academy. Today, particularly with respect to tort law, the academy is dominated by functionalism. And, as we have seen above and will see again below, this domination is so complete that many adopt functionalism’s assumptions unreflectively, so that the study of law seems to them to be nothing more than the study of its functions.62 Hence, when Charles Rickett and I suggested that many today do not treat law as an academic discipline,63 the response was much as has been described above. But it is no more accurate here. Frankly, it is plain that lawyers such as Denning, Fleming, and Stapleton do not treat the law as an academic discipline. In fact, they argue that it should not be so treated. They allege, for instance, that the duty of care is a smokescreen for policy that has no content. If so, then it cannot be an object of academic study. How can one study something that has no content? This is why we are told to forget about the law’s categories and turn to policy, meaning that we must turn from law to politics. Again, that is as explicit as it could be in the writings of these thinkers. For them, the law is a ‘window’ through which something else is to be seen, and the academic’s job is to ensure that the window is as transparent as possible.64 As I have said, this does not imply any criticism of these thinkers per se. Of course, I think that they are wrong about the law. But that does not mean that they are wrong about the law’s functions. Nor does it mean that their work lacks academic rigour or that it does not belong to an 62 The failure to realize this has also led some wrongly to deny that they and others are functionalists; see e.g. Robertson, supra note 26 at 1 – 2. 63 Allan Beever and Charles Rickett, ‘Interpretive Legal Theory and the Academic Lawyer’ (2005) 68 Mod L Rev 320 at 336. 64 This metaphor is revealing in another way also. Arthur Ripstein has pointed out to me that, even on the view that the duty of care is a mere smokescreen, it could, nevertheless, be studied. For instance, the duty of care could be examined as a rhetorical trope for what underlies it. And so it could. But that is to study the duty of care for the way in which it reveals or conceals what underlies it, not for itself. As it were, it would be the study of the way in which what stands beyond the window is revealed or concealed by the glass. It would not be a study of the glass. One cannot study a smokescreen for itself; one can only study the smoke.

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academic discipline. It just does not belong to the academic discipline that examines the law for what it is in itself (because it is, for them, a mere window through which one is to look). Elsewhere, I have illustrated these points by analogy with the academic treatment of rocks.65 A geologist studies rocks for their own sake. An archaeologist also studies rocks, but she studies them as ciphers for past cultures. The claim that many modern legal academics do not treat the law as an academic discipline entails that they treat the law as the archaeologist treats rocks. Of course, that does not mean that they lack the status of genuine academics any more than do archaeologists. But now another objection is likely to be raised. Treating rocks for their own sake is fair enough. But this is surely the wrong approach to take with respect to law. After all, law is about making human lives go better. The analogy seems to help reveal, then, a weakness with legal formalism. This is the topic of the penultimate section of this article.

VI

Formalism and justification

Bagshaw’s central objection to the formalist analysis of tort law is that it cannot explain the point of that law. He sets up this argument by asking the following question. ‘What are the reasons why we should continue to tolerate the existence of tort law?’66 He then maintains, Put like that, then, the primary reason – the primary goal of the law of torts – ought surely to be that the law of torts should be tolerated because it makes the world a better place than it would be in the absence of the law of torts. Who would recommend tolerating tort law . . . unless tort law is likely to make the world a better place?67

This, Bagshaw maintains, puts paid to formalism. As he argues, ‘[I]t is a proposition which involves the immediate rejection, as insufficient, of the rival claim that the law of torts has no purpose other than to be the law of torts.’68 We can see immediately that this argument exhibits the confusion examined in Part IV above. The formalist does not deny that tort law makes the world a better place or that it is appropriate to ask whether it does; she denies only that tort law is properly understood via examination of these questions. 65 Beever, ‘Policy,’ supra note 35 at 301. 66 Bagshaw, supra note 1 at 248. 67 Ibid at 249. Bagshaw inserts a rider on his question, but it is not important to discuss it here. 68 Ibid at 249.

234 UNIVERSITY OF TORONTO LAW JOURNAL Moreover, the argument relies on a crucial assumption. As might be expected, this assumption is again functionalist. Once it is uncovered, we will see that Bagshaw’s argument is circular and that his assumption prevents him from understanding the position he attacks. According to Bagshaw, Those who promote ‘rights-based’ theories of tort law which rely on stringent specifications of what can properly be considered a ‘right’ usually confess that in doing so they intend to reject all consequentialist goals as the primary determinants of the legitimate content of tort law. Thus, if tort law, constrained by their conceptual strictures, succeeded in making the world a better place, this would be fortuitous rather than intentional.69

The assumption is obvious here. It is that tort law can make the world a better place only by bringing about desirable consequences.70 This position is simply philosophical consequentialism. Hence, it cannot be assumed in an attack on a non-consequentialist view. The formalist accepts that the law ought to make the world a better place. But it need not do this by causing wanted effects. The law may cause such effects and may be valued, in part, because it does so, but those effects do not belong to the law as such. They are, if you like, positive externalities in the way that the listener’s pleasure is a valuable effect of music but does not actually belong to the music. Rather, the formalist insists, the law makes the world a better place, not because of what it brings about, but because of what it is. At this point, it is necessary to introduce a crucial feature of law that I have so far downplayed. Legal decisions do not merely announce outcomes; they provide reasons for those outcomes. As Weinrib puts it, law is a justificatory enterprise.71 It seeks to justify the decisions that it reaches. Hence, those reasons play an important role in our understanding of law.72 All modern formalist theories attempt to both explain and 69 Ibid at 254. 70 This assumption is also buried in Bagshaw’s view, ibid at 248, that the appropriate question is whether tort law should be tolerated. Why put the question this negative way? Because, I suppose, tort law imposes costs that must be balanced by benefits. 71 E.g., Weinrib, Idea, supra note 13 at 12. 72 A diehard realist would deny this, of course, but that position is sufficiently extreme to be passed over here. For my purposes, it would be enough to show that the objection to formalism relies on so radical a version of realism. Compare also Robertson, supra note 26 at 269, who maintains that precedent is a matter of outcome only and ignores the reasons given by the court. This cannot be right, as all outcomes resemble all others in some ways but none others in other ways. What must be asked is whether the instant case is relevantly similar to a decided case, and it is impossible even to ask that question without bringing reasons to bear. This is not to deny that different understandings of precedent are available, but none can focus on facts alone. Facts are not norms.

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justify. They do not, as Bagshaw alleges, attempt to render the law maximally coherent at the expense of justification.73 Largely, they are attempts to show that the law aims to, and if operating properly does, achieve fairness between the parties. Clearly, then, it is wrong to maintain that the formalist is uninterested in making the world a better place. On the contrary, formalists generally argue that the law makes the world a better place by creating a forum that treats the parties fairly. In other words, the point of the law is justice. Given this, what is the reason for this criticism? Again, it is explained by the influence of functionalism. Because the functionalist thinks that the justification of a phenomenon is to be found only in its consequences, she holds that an account of the law that ignores consequences cannot be concerned with justification. It is worth pausing to note that the influence is so strong and so blinding that it makes possible the claim that works that are clearly concerned with justice ignore justification. Does tort law make the world a better place? Definitely. It does so by realizing justice. But tort law also comes with costs, and so examination of its ultimate desirability must take into account many considerations beyond the law’s form, as I have explained elsewhere.74 That said, it is highly plausible to think that a law that focuses on justice alone, ignoring external goals, would make the world a better place than one that concentrated on those goals. In short, making the world a better place is not all about creating desirable consequences. It is also about, and most fundamentally about, treating people justly.75 These considerations place the earlier discussion of coherence and unity in a new light. Not only is coherence and unity necessary for intelligibility; it is necessary for justification. As we saw above, the plaintiff in Lamb was denied recovery, in part because she ought to have been insured.76 But this cannot possibly justify the result in that case, given that many plaintiffs who ought to have been insured have recovered. Purported justifications that are inconsistent with others do not justify. 73 Bagshaw, supra note 1 at 256. Bagshaw directs this criticism at a number of works, including Rediscovering the Law of Negligence; Beever, Rediscovering, supra note 25. In that light, it is revealing to observe that Rediscovering attempts to show how each stage in the negligence enquiry can be understood to answer questions that combine to produce a law that is morally justifiable. Moreover, its 580 pages mention justice 921 times. This is obviously not a book unconcerned with justification. 74 E.g., Allan Beever, ‘Corrective Justice and Personal Responsibility in Tort Law’ (2008) 28 Oxford J Legal Stud 475 at 499. 75 Here, of course, I assume a non-consequentialist account of justice. This is appropriate for two reasons. First, it is one shared by the vast majority of non-theorists. Second, it is used only to reply to an attack on formalism. Hence, the argument is not circular. 76 Supra note 24 and accompanying text.

236 UNIVERSITY OF TORONTO LAW JOURNAL Moreover, even if the justifications offered are consistent, they do not justify unless they cohere. Imagine that P1 is refused recovery for reason x, that no one has ever been permitted to recover where x applied, but that some plaintiffs have recovered where reason y applied. There need be no inconsistency here. But P1 is entitled to ask why x and not y bars recovery. An answer to this question will provide an account of how x and y operate in law, and that answer will give greater unity. It is important to note that these concerns also undermine so-called mixed accounts of the law. These either collapse into incoherence or are illusions. Justifications are not like cooking recipes. One cannot simply add half a cup of corrective justice and a pinch of deterrence, according to taste. One must treat the justifications as the reasons that they are. And as so-called mixed accounts attempt to combine some form of consequentialism with some form of non-consequentialism – that is, the view that consequences are all that matter with the view that consequences are not all that matter – either the result is nonsense or, more likely, one of the concerns is treated in a distorted fashion. Typically, the non-consequentialist aspect of the theory is given a consequentialist reading, and thus, the theory is not really mixed at all.77 In this light, Bagshaw’s claim that ‘underlying all my arguments is a clear preference for a law of torts which can do good, ahead of a law which can be straightforwardly explained’ is revealed to be the strawman argument that it is.78 First, no one has ever suggested that explanation of the law will be straightforward.79 Second, and of more importance, Bagshaw asserts a false dichotomy between explanation and justification. Given that the law deals in reasons, explanation and justification are closely linked.80 The choice between an explicable and a justified law is a false one. Explanation and justification are linked in a positive way also. Imagine that the best functionalist explanation of the law of negligence interpreted that law in terms of deterrence, compensation, and loss spreading. 77 Compare the theory discussed in Ernest J Weinrib, ‘Deterrence and Corrective Justice’ (2002) 50 UCLA L Rev 621. 78 Bagshaw, supra note 1 at 259. See also ibid at 257, where Bagshaw claims that ‘it seems an overreaction to respond [to modern legal uncertainty] by insisting on reversion to a minimalist law of tort chiefly celebrated for the ease with which it can be explained.’ Not only does this commit the same errors; it is inconsistent with Bagshaw’s claim that formalism calls for an unchanging law. 79 Is the 580-page account of the law of negligence presented in Beever, Rediscovering, supra note 25, straightforward? Given that it admits that it covers only the essential parts of the law and ignores many issues, can it reasonably be said to present the law as straightforward? 80 Weinrib, Idea, supra note 13 at 39 –44.

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Imagine also (though it is hardly plausible) that tort law turned out to be the maximally efficient mechanism for achieving these goals. Even that, however, would not justify tort law. If deterrence, compensation, and loss spreading is what we are trying to achieve, then what are we doing talking about standards and duties of care, remoteness, causation, or defences?81 In other words, even if tort law could be justified through functional analysis – that is, via its effects – that would not justify it. We do not even know what it is until we turn from functionalist to formalist enquiries. Note that my claim is not that the realization of justice is a function of tort law. It is very natural to speak that way, but it is, nevertheless, an error. Go´recki’s Symphony no 3, op 36 is sad. It is expressive of sadness. But it would be wrong to say that its function is to be expressive of sadness. Rather, it is a musical work (among other things) expressive of sadness. The claim that its function is to be expressive of sadness wrongly implies that the emotion is external to the work. Similarly, realizing justice is not a function of tort law. The law is a realization of justice. This claim does not mean that the positive law defines what justice is.82 Again, this reading results in insisting on the acceptance of non-formalist assumptions. As we have seen, the formalist maintains that law is not exhausted by positive law. Law also consists of the principles that underlie that law. And these principles are principles of justice. One way of putting this is to say the following: the law does not take the demands of justice and attempt to work out a system that, without referring to those demands, mirrors them;83 it simply takes and adopts (not adapts) the demands of justice. For instance, the law does not see that fairness between the parties calls for a person to be found negligent in certain circumstances and then invent the standard of care, with its objective approach, in order to pick out those circumstances. Rather, the standard of care, with its objective approach, is itself an immediate demand of fairness as between the parties.84 The content of this aspect of justice is the

81 I do not wish to deny that the best way of achieving deterrence, compensation, and loss spreading would be to talk about standards and duties of care, remoteness, causation, and defences, but the attack on formalism is not meant to rely on such notions. 82 This reading is suggested by John Gardner, ‘The Virtue of Justice and the Character of Law’ (2000) 53 Currt Legal Probs 1 at 12, which describes formalism as a ‘grotesquely self-congratulatory doctrine that law, so long as it remains true to its own distinctive form, cannot but be just.’ Because Gardner insists on a positivist reading of the notion ‘own distinctive form,’ the idea becomes that, for the formalist, a coherent positive law is necessarily just. But it is this reading that is grotesque. See also Allan Beever, ‘Aristotle on Justice, Equity, and Law’ (2004) 10 Legal Theory 33. 83 Which would be a mirror image of functionalism, which holds that legal categories are empty smokescreens for what really matters. 84 Beever, Rediscovering, supra note 25 at ch 3.

238 UNIVERSITY OF TORONTO LAW JOURNAL content of the standard of care. In other words, the standard of care is not a test for justice in the way that litmus paper tests the pH of lemon juice; it is itself the juice. It would not even be right to say that justice and the standard of care share the same content – though this would be an accurate comment when applied to the positive law. This is because the standard of care is a principle that determines when one person should be said to have been negligent with respect to another, and that is precisely what the relevant aspect of justice is. VII

Contemplation and justice

Of course, music and law are different phenomena. The chief disanalogy between them is that the former consists of objects for contemplation, while the latter is essentially concerned with coercion and justification. Obviously, law needs to be justified in a way that music does not. Nevertheless, the analogy between music and law can be pushed further in this area too. As we have noted, music has its functions. Its most significant function is to give pleasure to listeners. But its ability to do this would be almost entirely eliminated were listeners to attend to its function rather than its form. The final movement of Mozart’s Symphony no 41 in C Major, K 551 contains the most breath-taking combination of sonata form and fugue. This astonishing achievement can afford us enormous pleasure. But a ‘listener’ who focused on her own pleasure would fail to hear it and would in all likelihood be bored. Music is cognitive. It does not work like drugs and its effect on us is not the same as its effect on cows (apparently, cows produce more milk when they are played classical music).85 Of course, no such argument can be constructed for law. The law is not justified as an object of contemplation. But there remains an illuminating analogy here. Part, only a small part, of the value of law flows from its being an object of contemplation. In a very similar way to music, it enriches the lives of many lawyers. Do we not sometimes revel in the law’s intricacies and delight in its complexities?86 Is it not true that much of the pleasure of studying the law comes from such? Can we not describe law as, in some way, beautiful? If that sounds just too outlandish, it is worth remembering that many mathematicians swear that mathematics is beautiful and frequently compare it to Bach’s music. If 85 Davies, Musical Meaning, supra note 4 at 321– 2. 86 If not, then how could we account for the enthusiasm for cases such as Rylands v Fletcher (1868) LR 3 HL 330. For commentary, see Allan Beever, ‘Lord Hoffmann’s Mouse’ (2004) 10 New Zealand Business Law Quarterly 161.

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mathematics can be beautiful, surely anything can be. These questions are not rhetorical. Those who hold that legal categories are a mere smokescreen for policy must answer them in the negative. For them, the canvas of the law is really a window to be seen though. They appreciate law as the owners of cows appreciate music (‘Yay, more milk. Isn’t Mozart great?’). On one of my visits to London’s National Gallery, I stood next to a woman while viewing Vincent van Gogh’s Sunflowers. After a cursory glance, she bellowed out in a very posh accent, ‘I would want them to look more like real sunflowers before paying so much for them,’ and stormed out of the room. The second the door slammed, it occurred to me that I should have informed her that, should she want sunflowers, they were available from a shop just around the corner from the gallery for only a few pounds. What is more, the shop had a window through which she could look at the sunflowers for free. A psychoanalyst might claim that much of my writing on law is motivated by the desire to make up for this lost opportunity. This article is my best chance. Now, of course, though I maintain that some of law’s value arises from the fact that it gives pleasure when treated as an object of contemplation, I do not think that this value is significant at the public-policy level.87 Nor should it be relied on by courts in reaching decisions (that would be to fall into the functionalist trap). So, at that point the analogy breaks down. But there is still a little more to be said: What does contemplation of the law reveal? The law, of course. But that is not all. When we treat it as an object of contemplation in its own right and not as a window to be seen though, it also reveals justice. And we are in desperate need of this. As our discussion of Bagshaw’s work has revealed, we are so powerfully affected by functionalism that many of us cannot see the world beyond it. It is no surprise, then, that many want to look through the law to its alleged functions. But just as contemplation of art can change the way that we see the world, so can contemplation of the law. It is often rightly said that wheat fields never look the same after one has seen van Gogh’s paintings of wheat fields; and, to one captured by functionalism, the world will never look the same again after attending to the law. That contemplation is possibly the most powerful experience of justice as a pervasive phenomenon that it is possible to have.88

87 I am certain, however, that it plays a very large role in the lives of lawyers and, for many of them, is central in giving meaning to their lives. 88 I speak about pervasive phenomena to distinguish this from isolated incidents. If, for instance, I injure you and voluntarily make amends, no doubt this can provide a powerful experience of justice.

Peter Benson*

THE IDEA OF CONSIDERATION

No doctrine of the common law of contract has been longer settled or more carefully developed than consideration. Yet none has proved more intractable to theoretical justification. This article suggests that the problem is not with consideration but rather with the theories that defend or challenge it, theories not equipped to explain the doctrine because they invoke functions and purposes that do not belong to the specific kind of relation that consideration necessarily establishes. In contrast with current approaches, the article argues that consideration is not a control device that, for various policy reasons, negatively excludes certain prima facie enforceable promises. Rather, it is constitutive of a kind of interaction that is the only basis on which parties may reasonably be held to have undertaken fully contractual obligations enforceable by expectation remedies. The article sets out the main features of the promise for consideration relation; then seeks to explain the juridical meaning and role of this relation; and finally brings out the contrast with reliance. Keywords: Ernest Weinrib/Lon Fuller/common law of contract/doctrine of consideration/expectation remedies/reliance I

Among the most important and, in my view, enduring contributions of The Idea of Private Law is its argument that, to understand private law, it is essential to recognize and to elucidate a certain normative conception of relationship that animates its many doctrines, principles, and standards. Not since Hohfeld,1 has the analysis of basic private law relations been so carefully, deeply, and systematically pursued by legal theory. But Professor Weinrib’s contribution in this respect goes still further than Hohfeld’s in at least two ways: first, he has moved theory to a higher level of abstraction by elucidating a conception of private-law relation that unifies not only the different private-law doctrines but also the different categories of jural relations that Hohfeld so acutely distinguished and elaborated; second, he has pushed analysis to a deeper level by developing a systematic account of the normative character and framework of this conception of relation in terms that are consonant with a liberal conception of rights and justice. In keeping with his book’s theme of the centrality of the private-law relationship, my contribution to this collection of tributes to Professor Weinrib will explore a * Faculty of Law, University of Toronto 1 Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, ed by Walter Wheeler Cook, with a foreword by Arthur L Corbin (New Haven: Yale University Press, 1964). (2011), 61

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DOI: 10.3138/utlj.61.2.241

242 UNIVERSITY OF TORONTO LAW JOURNAL part of the common law of contract that is arguably its most characteristic but also its theoretically most controverted doctrine precisely because, in my view, we have not been sufficiently attentive to the kind of relationship it embodies. I am referring, of course, to the doctrine of consideration. II

Consideration and contract theory

No doctrine of the common law of contract has been longer settled or more carefully developed than consideration.2 The historical product of intense and richly concrete legal argument built from the ground up, consideration’s main features were already evident by the end of the sixteenth century when it was fixed as an essential requirement for an action in assumpsit. From that time on, if not earlier, consideration embodied an idea of reciprocity that had continuously animated the long history of contract law stretching back to fourteenth- and fifteenth-century English medieval law. At the level of practice, and for the first time in this history, consideration stated a general requirement governing all non-formal agreements: without consideration, no promise (not under seal) was actionable in assumpsit. Moreover, from the start, this actionability consisted in the possible enforcement of the plaintiff’s expectation interest. Thus, from the late sixteenth and early seventeenth centuries, consideration stipulated a general and necessary prerequisite for a kind of liability that is still widely viewed as distinctively ‘contractual.’ If there has ever been a basic contract doctrine that, as a matter of self-conscious legal practice, has presented itself as reflecting a unified conception of contract, consideration is it.3 2 The historical observations in this paragraph and elsewhere in my article draw on David J Ibbetson, A Historical Introduction to the Law of Obligations (Oxford: Oxford University Press, 1999) at chs 2,7,11,12 [Ibbetson, Historical]; David J Ibbetson, ‘Consideration and the Theory of Contract in the Sixteenth Century Common Law’ in John Barton, ed, Towards a General Law of Contract (Berlin: Duncker & Humblot, 1990) at 67 – 124 [Ibbetson, ‘Consideration’]; John H Baker, ‘Origins of the ‘Doctrine’ of Consideration, 1535–1585’ in Morris S Arnold et al, eds, On the Laws and Customs of England (Chapel Hill, NC: University of North Carolina Press, 1981) at 336 –58; and John H Baker, The Reports of Sir John Spelman (London: Selden Society, 1978) (94 SS) at vol 2, ch 9. More recently, there is Warren Swain, The Changing Nature of the Doctrine of Consideration, 1750 –1850 (2005) 26 J Legal Hist 55. For the purposes of developing a theory of consideration, I have found the work of Ibbetson to be particularly helpful. 3 I fully agree with von Mehren’s assessment: ‘Consideration stands, doctrinally speaking, at the very center of the common law’s approach to contract law. It represents an ambitious and sustained effort to construct a general doctrine’; Arthur T von Mehren, ‘Civil Law Analogues to Consideration’ (1959) 72 Harv L Rev 1009 at 1009. For a similar statement, see AW Brian Simpson, A History of the Common Law of Contract: The Rise in the Action of Assumpsit (New York: Oxford University Press, 1987 ) at 319 [Simpson, History].

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Why, then, is consideration so difficult for contract theory? For difficult it is. Indeed, no basic contract doctrine has proved more intractable to theoretical justification than consideration. This holds true for all the main theoretical perspectives, however much they may otherwise differ among themselves. Even the most influential defences have been found wanting. When consideration is not simply dismissed as an out-dated and rigid formalism that obscures the real concerns and purposes of contract law, functions are attributed to it that it does not fulfil in central instances of its proper application and that can often be more effectively promoted by other legal devices (such as the seal) or other reasons for liability (such as reliance). It is now commonplace to see consideration, insofar as it is still treated as a prerequisite for enforceability, as a control device that excludes promises for reasons that often promote neither autonomy nor welfare. A leading private-law scholar has concluded that ‘the law would be rendered more intelligible and clear if the need for consideration were abolished.’4 I want to suggest that the problem is not with consideration but rather with the current theories that defend or challenge it. The theories are not equipped to explain the doctrine because they invoke functions and purposes that do not belong to the specific kind of relation that consideration necessarily establishes between the parties. Inevitably, they introduce factors and distinctions that are either irrelevant from or inconsistent with the legal point of view. Categorical differences that do matter, such as that between mutual promises and gratuitous promises, turn out to be unjustified on this basis. This is true of both defenders and critics of the doctrine. To illustrate these unavoidably general points about current approaches to consideration, I will very briefly discuss what is widely viewed as the standard and most compelling modern defence of the doctrine; namely, Lon Fuller’s. In ‘Consideration and Form,’5 Fuller seeks to explain the traditional view that consideration stipulates a necessary condition for the full contractual enforceability of promises. He accepts that the non-enforceability of gratuitous promises is an essential part of the doctrine. Fuller begins with the more general idea that underlying ordinary contractual liability is the principle of private autonomy.6 By this ‘most pervasive and 4 Andrew Burrows, Understanding the Law of Obligations (Oxford: Hart Publishing, 1998) at 197, cited in Mindy Chen-Wishart, ‘Consideration and Serious Intention’ [2009] Sing JLS 434 at 434 [Chen-Wishart, ‘Consideration’]. For a similar conclusion, see Charles Fried, Contract as Promise (Cambridge, MA: Harvard University Press, 1981) at 35 –7. John Dawson notes that a ‘remarkable feature of the extensive literature on the requirement of consideration is the intensity and depth of the hostility it has inspired’; John P Dawson, Gifts and Promises (New Haven: Yale University Press, 1980) at 197. 5 Lon L Fuller, ‘Consideration and Form’ (1941) 41 Colum L Rev 799 [Fuller, ‘Consideration and Form’]. 6 Ibid at 806– 10.

244 UNIVERSITY OF TORONTO LAW JOURNAL indispensable’7 basis of contract, the law treats parties as having a legal power to change, within limits, their voluntary legal relations inter se. This principle, as Fuller himself acknowledges, can cover a range of transactions: it is illustrated by a completed gift, a sale, or a promise under seal. Indeed, were the law to enforce non-formal gratuitous promises, this too would involve a right-altering and law-making function. In other words, the principle of private autonomy describes, without justifying, the conclusion that the law chooses to attribute legal effects to parties’ acts. To exclude gratuitous promises, then, Fuller must take the further step of invoking additional factors that are regularly satisfied by promises for consideration but not by gratuitous promises. These factors are both formal and substantive. In terms of formal factors, Fuller argues that a promise for consideration naturally satisfies, whereas a gratuitous promise does not, the desiderata of legal formalities, such as the seal, and in particular, their evidentiary, cautionary, and channelling functions. As for substantive factors, he underlines the economic importance of exchange relations and views promises for consideration, but not gratuitous promises, as forwarding this objective. In other words, Fuller justifies the application of the principle of private autonomy to promises for consideration but not to gratuitous promises on the twofold basis of, first, the kind of functions associated with a seal and, second, the economic significance of exchanges and of transactions ancillary to exchanges. This overview of Fuller’s argument will be familiar to many. Equally familiar is the point that this approach is subject to important qualifications and exceptions.8 As a number of writers have argued, consideration does not consistently or effectively satisfy these formal and substantive factors. For example, as Fuller himself acknowledges,9 purely executory oral mutual promises – perhaps the central and practically the most important case – do not go very far in fulfilling the functions of a legal formality. As a result, Fuller rejects as unjustified the legally settled proposition that ‘where the doing of a thing will be a good consideration, a promise to do that thing will be so too.’10 At the same time, Fuller’s assertion that gratuitous promises cannot satisfy the desiderata of form at all 7 Ibid at 806. 8 A particularly instructive discussion is Andrew Kull, ‘Reconsidering Gratuitous Promises’ (1992) 21 J Legal Stud 39 at 46ff. Despite these criticisms, most scholars continue to assume that the rationale for consideration must be its role as a natural formality and/or its singling out economic exchanges as enforceable. Only they now view consideration as merely a sufficient rather than a necessary condition of enforceability. This is, for example, Kull’s view, and in this respect, he is wholly representative; ibid at 47, 56ff. 9 Fuller, ‘Consideration and Form,’ supra note 5 at 816– 7. 10 Thorp v Thorp (1702) 88 ER 1448 at 1450 (KB); cited in Fuller, ‘Consideration and Form,’ ibid.

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seems unfounded. If the concern is to distinguish tentative statements of intention from seriously intended unqualified promises, the law can do this with respect to non-bargain promises.11 As for the substantive economic significance of exchange, well-established instances of promises for consideration, such as unilateral contracts or nominal consideration, can certainly fall outside of exchange relations. Moreover, the fact that executed gifts are fully enforceable shows that, at common law, there is no policy, as such, against gifts, challenging the primacy of exchanges argued for. Not only can gratuitous promises be welfare enhancing; even more, in contrast to enforceable executed gifts, promises to give entail the distinct and additional welfare advantage that parties can project their transaction into the future, thereby accommodating their needs and purposes even more effectively.12 While these criticisms are important and cogent, they do not seek to displace Fuller’s basic premise that the rationale for consideration must be sought in the sort of formal and substantive policies suggested by him. To the contrary, they assume that its justification, if there is to be one, must be sought in these policies but hold that, on this basis, consideration should figure as only a sufficient and not a necessary condition of enforceability.13 I would like to suggest that the reason these criticisms apply in the first place is that Fuller’s approach does not reflect the basic relation that consideration establishes between the parties. Take, first, the role of form. Fuller’s ideal benchmark for understanding and evaluating the doctrine of consideration is a set of factors that pertain to the functioning of what he calls an ‘abstract’ formal transaction; that is, a legal formality the legal significance and effects of which are constant and unaffected by the context in which it is used.14 As already noted, a seal approximates this ideal type of formality. In the case of a seal, we may reasonably say that the seal itself is the source of the promisor’s obligation to perform. Moreover, the legally operative facts giving rise to the obligation need not consist in any bilateral interaction between the parties: it is the promisor alone who must do certain things – historically, to sign, seal, and deliver the document containing the promisor’s sole undertaking – and that undertaking is legally valid and effective without any act or counter-promise by the promisee. In a more detailed discussion of the seal in his casebook,15 Fuller 11 Kull, supra note 8. 12 Kull emphasizes this point; ibid at 49–51, 59 ff. The point has also been made by, among others, Fried, supra note 4 at 37, and Robert Cooter & Thomas Ulen, Law and Economics, 5th ed (Boston: Pearson Education, 2008) at 201ff. 13 This conclusion is widely shared; see Kull, ibid at 47, 56ff. A more recent discussion is Randy E Barnett, Contracts (Oxford: Oxford University Press, 2010) at 147– 87. 14 Fuller, ‘Consideration and Form,’ supra note 5 at 802. 15 Lon L Fuller, Basic Contract Law (St Paul, MN: West, 1947) at 313 ff.

246 UNIVERSITY OF TORONTO LAW JOURNAL himself emphasizes this unilateral feature of the seal. He brings it out by noting that delivery of the document is ordinarily taken by the courts to involve ‘the promisor’s act in handing the deed over rather than the promisee’s act in receiving it.’16 Strictly speaking, there is no distinct requirement of acceptance by the promisee. Delivery does not require that the document be brought under the promisee’s present control or even that the promisee be aware of the instrument or its delivery. The legal effect of the seal depends simply on the terms of the document and the things that the promisor does with it. The three functions of the legal formalities reflect this unilateral character of the abstract formal transaction. The focus of each function is on the promisor alone: channelling his objectives, discouraging his impulsive behaviour, and providing evidence of his acts. As we will see more fully in the next section, the difficulty with this analysis is that it is fundamentally foreign to the kind of relation between the parties that is required by consideration. Whereas the acts giving rise to an obligation via a sealed document are unilateral, the acts that are prerequisite to an obligation via the requirement of consideration are bilateral. As Fuller himself again notes,17 a promise for consideration involves a nexus between promisor and promisee in which the promisee’s promise or act is no less required than the promisor’s. Here, the source of the obligation is not an instrument or merely a unilateral act by the promisor. Rather, the obligation arises through a specific kind of non-formal interaction between the parties. This interaction is not reducible to, but is genuinely distinct from, the idea of delivery (or other acts) in the case of a sealed document.18 There is no reason to assume that the functions of one can be properly understood and explained through those of the other. To the contrary. There is a similar difficulty with Fuller’s reliance on the policy of promoting exchange. He assumes, without discussion, that consideration’s requirement of quid pro quo is just the idea of economic exchange.19 But the relation of economic exchange does not seem to be the same as that constituted by the legal requirement of quid pro quo. Unilateral contracts and, more generally, considerations that consist in only a detriment to the promisee are often non-exchanges in the economic sense.20

16 Ibid at 316. 17 Ibid. 18 Ibid at 317. One of the few contemporary theorists to recognize this point is Alan Brudner, ‘Reconstructing Contracts’ (1993) 43 UTLJ 1 at 34–5. 19 This is widely supposed by contract theorists, including those hostile to the doctrine; see e.g. Fried, supra note 4 at 28 ff. 20 Thus Hobbes characterized a typical unilateral contract as a gift or ‘free-gift,’ which he took to be distinct from both an unenforceable, gratuitous promise and an economic

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Yet these instances of consideration fully embody the quid pro quo that consideration requires. Fuller’s equation of quid pro quo with economic exchange makes it difficult, if not impossible, for him to account for the basic contrast between enforceable mutual promises and gratuitous promises. Since they cannot be distinguished from the standpoint of form – they are both equally deficient in meeting its desiderata – their different treatment must be explained solely on the basis of the element of exchange contemplated by one but not the other. But, if so, how is this consistent with the fact, already noted, that completed gifts – which are not exchanges – are fully enforceable? Since, in light of this fact, there cannot be a policy against gifts per se, the singling out of mutual promises, but not gift promises, for enforcement is, to this extent, problematic. The analysis of quid pro quo and the categorical distinction between mutual promises and gratuitous promises must be consistent with the enforceability of gifts. But Fuller’s substantive premise precludes this. The fundamental question remains: how to explain the basic legal difference between mutual promises and gratuitous promises in a way that is consistent with the equally settled enforceability of completed gifts? In sharp contrast with current approaches, I shall argue that consideration is not a control device that, for various policy reasons, negatively excludes certain prima facie enforceable promises, however seriously and freely made or welfare enhancing they may be. Rather, it specifies in positive terms and, indeed, is constitutive of a kind of interaction on the basis of which parties may reasonably be held to have undertaken fully contractual obligations enforceable by expectation remedies. Indeed, my claim is that this interaction is the only such reasonable basis. This is how I understand the traditional view that takes consideration to be a necessary condition of full contractual liability. In this connection, it is important to compare consideration and reliance as two bases of obligation. Do they specify two really distinct kinds of interaction; and if so, how does this difference bear on the appropriateness of expectation remedies? My first task, then, will be to set out clearly the main features of the promise for consideration relation as these are reflected in the historically settled and most fully articulated conception of consideration (Part III). Having done this, I will then try to explain the juridical meaning and role of this relation (Part IV). This addresses the question as to why promises for consideration, but not gratuitous promises, with or without reliance, are enforceable according to the expectation measure of recovery. I shall do this in three steps. exchange. See, Thomas Hobbes, Leviathan, ed by CB Macpherson (Baltimore: Penguin Books, 1968) at 194[67]. Citations in brackets are to the first edition.

248 UNIVERSITY OF TORONTO LAW JOURNAL As already noted, a plausible account of consideration must try to be consistent with the fact that gifts, as opposed to donative promises, are enforceable at common law.21 In the first step (Part IVA), I therefore begin with a direct comparison between gifts and mutual promises, arguing that they both necessarily establish a relation between the parties through which neither donor nor promisor retains any power of unilateral decision or control vis-a`-vis the other party to the transaction. In both transactions, the first party gives up unilateral control: through delivery in the case of gifts and by mutual promises independent of delivery in contracts. By contrast, a donative promise simply does not do this at all. Moreover, by engaging the participation of each other through mutual promises, contracting parties may reasonably be held to have intended the juridical meaning of the relation they jointly establish. The next step (Part IVB) is to specify the meaning of this relation. Briefly stated, I argue that contract formation involves a kind of relation that is enforceable in accordance with expectation remedies. To show this, I shall introduce and explain the need for the idea that contract formation involves what I shall call a ‘transfer of ownership between the parties,’ where the transfer is constituted by the form and content of the promise-for-consideration relation itself. Contract formation must be understood in this way, I argue, if expectation remedies are to qualify as compensatory in character; and consideration fits with and instantiates this conception. Finally (in Part IVC), I confirm the intrinsic connection between consideration and expectation remedies by comparing consideration and reliance as sources of liability and by suggesting that, in contrast to consideration, reliance does not involve a kind of interaction which makes the expectancy the direct and intrinsically required remedial standard. This is consistent with the traditional view that consideration is a necessary prerequisite for the full contractual enforceability of any non-formal promise. In denying contractual enforceability to non-formal promises unsupported by consideration, the common law is not under-inclusive as many, if not most, scholars so readily assume.22 21 This point is emphasized and discussed in some detail in E Allan Farnsworth, Contracts, 4th ed (New York City: Aspen Publishers, 2004) at 53–4. Both Kull and Fried see this as an insuperable obstacle to any plausible account of the traditional view of consideration; see Kull, supra note 8 at 49–50; Fried, supra note 4 at 37. 22 While proposing a rationale for the basic doctrine of consideration, I do not try, in this article, to provide a complete theory of consideration or, even less, of contract formation. I do not discuss, for example, such topics as past consideration or preexisting duty. Nor do I explore the relations (or possibly the tensions) between consideration and other contract doctrines, such as offer and acceptance or unconscionability. This is simply the first, though perhaps the most important, step toward a more complete account.

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The requirements of consideration

In this section, I present the main features and requirements of the historically dominant and most completely articulated doctrine of consideration. These features provide provisionally fixed points for further reflection; they specify the data, as it were, which are to be accounted for by the proposed theory that I sketch in the fourth section. The formulation of the doctrine supposed here was largely crystallized in English law by the end of the sixteenth century and was further elaborated, explored, and explained not only in judicial decisions but also by the leading contract-law writers, beginning in the late eighteenth century and culminating in the work of, among others, Leake,23 Pollock,24 Salmond,25 Holmes,26 and Williston27 in the later nineteenth and early twentieth centuries.28 In drawing on all these sources, my aim throughout is to make explicit the form and content of the relation constituted by consideration. The doctrine of consideration holds that, standing alone, a promise is categorically insufficient to generate an expectation-based enforceable contractual obligation, no matter how seriously and unconditionally it is intended or how carefully and deliberately it is made, and despite the fact that it may be recorded in writing or memorialized in some other way. To be enforceable according to its terms, a promise must be made in return for a legally valid consideration that can be either a reciprocal promise or act that is requested by the promisor and provided by the promisee in return as part of a single transaction. Where the consideration is a counter-promise, there is a bilateral contract formed at the moment the mutual promises are made. If the consideration is a reciprocal act, a unilateral contract is formed when the act is executed. Consideration is not the same as just any motive or reason for the promise; it must move from the promisee; and it must be of some value in the eye of the law.29 Understood in this way, consideration is

23 Martin Leake, Elements of the Law of Contracts (London, 1867). 24 Frederick Pollock, Principles of Contract: A Treatise on the General Principles Concerning the Validity of Agreements in the Law of England, 9th ed (London: Stevens and Sons, 1921). 25 John W Salmond, Essays in Jurisprudence and Legal History (London: Steven & Haynes, 1891). 26 Oliver Wendell Holmes, The Common Law, ed by Mark de Wolfe Howe (Boston: Little, Brown & Co, 1963). 27 Samuel Williston, Law of Contracts, single-vol ed (New York: Baker, Voorhis & Co, 1938). 28 In addition, any of a number of standard contract law textbooks may be consulted for summaries of the doctrine. I have found Mindy Chen-Wishart, Contract Law, 3rd ed (Oxford: Oxford University Press, 2010) at ch 4 [Chen-Wishart, Contract Law] to be particularly instructive and thorough. 29 As stated by Patteson J in Thomas v Thomas (1842) 2 QB 851 at 859.

250 UNIVERSITY OF TORONTO LAW JOURNAL unequivocally a necessary condition of contract formation and enforceability. This was the historically settled position of both the common law and equity. Let me now unpack and explore these various aspects of the doctrine in a little more depth in an effort to make explicit the conception of relation that they reflect. To start, the consideration must be either a promise or an act that moves from the promise. Any statement of apparent intention that falls short of a crystallized promise cannot function as consideration. Otherwise, there must be an actual act that is executed and irreducible to a statement of intention. Consideration must consist, therefore, in a finalized and complete exercise of choice in the form of a promise or act. Beyond this, what does it mean to say that the consideration – that is, the counter-promise or act – must move from the promisee? It entails, first, that the counter-promise must be directly made by, or be legally imputable to, the promisee, and similarly, the return act must be directly done by, or be legally imputable to, the promisee. If the return promise or act is the work of a third party that in no way can be legally imputed to the promisee (via agency for example), it does not count as consideration as between promisor and promisee; at most, the first promise is, as between these parties, a gratuitous promise that, while it may be morally binding upon the happening of an event (viz. the third party’s promise or act), is unenforceable in law and equity. It is at most a conditional gratuitous promise. To move from the promisee, not only must the consideration not move from a legally independent third party; it must also not move from the promisor. This further point entails that consideration must be independent of the first promise in the following way: it must be possible to construe the content of the consideration as something that genuinely originates with the promisee, not the promisor, and that is not simply reducible to an aspect, condition, or effect of the first promise. It must be something that is, as it were, initially on the promisee’s side and that is, therefore, not produced by the promisor. Even if the consideration is, in fact, given after the promise, there must be no reason in principle why it could not possibly have initiated the interaction and so have come first. By way of examples of things that do not satisfy this requirement, suppose the alleged consideration is the promisor’s natural love and affection for the promisee or the latter’s feelings of satisfaction with and gratitude for the former’s promise.30 These can certainly motivate or be reasons for the promise. But, in either case, the law will view the alleged consideration as moving from the promisor, not the promisee, 30 For an historical discussion of these cases, see Ibbetson, ‘Consideration,’ supra note 2 at 79 –81.

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and so as no consideration at all. With respect to natural love and affection, it clearly does not originate with the promisee. In the example of gratitude or satisfaction on the promisee’s part, although it is felt by the promisee and so, in a sense, is on his side, it consists merely in the promisee’s reaction to the promise: it represents just the effect that the promise, with its anticipated benefit, has on the promisee; and so it can only be viewed as coming after and as resulting from the promise. It could not possibly originate with the promisee. The same analysis applies where the alleged consideration consists in promising to open or in actually opening a promised gift, where opening the package is the way the promisee can enjoy the gift. Opening the gift is not an act that moves from the promisee but is merely an aspect of the execution of what is, in essence, a gratuitous promise.31 The requirement that the consideration must move from the promisee – and, in particular, the idea that it must be independent of the promisor – ensures that there are two sides that together constitute the contractual relation. Consideration establishes a bilateral nexus between the parties. This two-sidedness is developed by the next feature of the doctrine. Not only must the promisor request the consideration in return for her promise but, in addition, the promisee must give the consideration in return for the promise. In other words, the consideration must be the reason for the promise and, vice versa, the promise must be the reason for the consideration. Thus, promise and consideration must be mutually inducing: ‘it is not enough that the promise induces the detriment [i.e., the consideration] or that the detriment induces the promise if the other half is wanting.’32 The requirement of mutual inducement confirms and builds upon the previously discussed requirement of independence. Unless the consideration moves from the promisee and is not reducible to being the mere effect or aspect of the first promise, the consideration cannot be reasonably construed as the cause of or reason for the promise. Promise and consideration could not be viewed as mutually inducing. It is not sufficient that the promisor wants, or even formally requests, something in return for her promise if this something does not originate with and move from the promisee. This further requirement of mutual inducement is applied objectively. The consideration need not be the promisor’s actual sufficient reason for making the promise nor even just one of her actual reasons for doing so. In accordance with the objective test for formation, ‘no matter what the 31 As in Williston’s famous example of a benevolent person who tells a tramp, ‘if you go around the corner to the clothing shop there, you may purchase an overcoat on my credit’; see Samuel Williston, A Treatise on the Law of Contracts, 3rd ed (Mont Kisco: Baker, Voorhis, 1957) vol 1 at s 112. 32 Wisconsin & Mich Ry Co v Powers, (1903) 191 US 379 at 386.

252 UNIVERSITY OF TORONTO LAW JOURNAL actual motive may have been, by the express or implied terms of the supposed contract, the promise and the consideration must purport to be the motive each for the other, in whole or at least in part.’33 Whether there are mutually inducing promise and consideration is decided on the basis of the parties’ particular interaction, reasonably construed in the particular setting of their transaction.34 So long as it reasonably appears from the parties’ words and deeds inter se, interpreted in the circumstances of their interaction, that the promise has been given in return for the consideration and vice versa, this is sufficient. In this sense, there is no consideration that is not reasonably regarded as such by both parties.35 Note that this feature of the consideration doctrine sets up a definite and limited conception of cause of, or reason for, the promise: whatever a promisor’s purposes or motives may be, the only thing that counts as the cause of her promise is the receipt of the other party’s consideration ( promise or act) in return. This sets the framework for contractual analysis. Consideration is emphatically not the same thing as motive in any larger sense. At the same time, the way in which consideration functions as the reason for the promise is as part of a bilateral interaction between the parties. The reason is intrinsically relational. No other conception of reason is relevant. Consideration cannot, therefore, be reduced to just a (any) reason that a court finds sufficient for enforcing the promise.36 Precisely because each side serves as the cause or reason for the other, each side is simultaneously cause and effect of the other. If we may suppose, in general, that a cause necessarily precedes its effect in time, then each side of the mutually inducing relation is, therefore, both before and after the other side. Temporal sequence, which necessarily entails a unidirectional movement, does not apply. In other words, even though the promise may be initiated before the consideration, the doctrine requires that there be a relation between them which is conceptually atemporal and in which both sides are fully and identically co-present.37 In this way, the doctrine of consideration abstracts from 33 Ibid. 34 For a thoughtful discussion and illustration of this approach, see Curtis Bridgeman, ‘Allegheny College Revisited: Cardozo, Consideration, and Formalism in Context’ (2005) 39 UC Davis L Rev 149 at 167 –81. 35 As stated in Philpot v Gruniger (1872) 81 US 570 at 577. 36 Atiyah took this view; see Patrick S Atiyah, ‘Consideration: A Restatement’ in Patrick S Atiyah, Essays in Contract (Oxford: Clarendon Press, 1986) 179 at 181ff. 37 An early judicial statement of this point is Nichols v Raynbred (1615) Hob 88: ‘The promises must be at one instant, for else they will be both nuda pacta.’ Any interaction that cannot be reasonably construed in these terms of simultaneity or co-presence does not meet the requirement of consideration. Hence, so-called ‘past consideration’ scenarios – where the thing done by way of consideration has not

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the temporal sequence of the interaction that establishes the bilateral relation. A third feature of the doctrine of consideration is that, to qualify as consideration, what is promised or done by the promisee must have value in the eye of the law. In the traditional formulation, it must be either a legal benefit to the promisor or a legal detriment to the promisee. What qualifies as benefit or detriment in this context? From the start, it must be emphasized that the conception of benefit and detriment is legal and not merely factual, psychological, or even economic. At the least, this means that the definitions of benefit and detriment must be worked out as part of a framework that reflects the prior requirements of independence and mutual inducement. For instance, benefit and detriment must be the content of a return promise or act. Being the content of an expression of intention that falls short of either of these does not count as a legal benefit or detriment. So, for example, a promisee’s stated intention to confer a benefit, where this does not involve a promise without reservation or residual discretion, is not consideration. Benefit and detriment must also be something that can move from the promisee and that can, at the same time, induce the first promise and be induced by that promise. For example, forbearance by the promisee in reliance upon the promise, which might otherwise qualify as a detriment, will not count as consideration if it was not requested by the promisor and done by the promisor in return for the promise, even though the reliance was foreseeable. In addition to being specified consistently with these prior requirements, the conceptions of benefit and detriment contribute a further dimension. The definitions of ‘benefit’ and ‘detriment’ apply to the content of the promise or act that constitutes consideration. I should emphasize that it is not the promise or act formally but its content that must satisfy this aspect of the doctrine. To ensure that the definitions of benefit and detriment suitably refer to the content, it is helpful to specify that a return promise will count as a benefit or detriment if, but only if, when executed, it would confer a benefit or impose a detriment in the senses discussed above.38 been requested by the promisor who promises only after the act has been completed – cannot satisfy the requirement. The common law drew this conclusion on this very basis early on in the development of the doctrine. See the discussion in Ibbetson, ‘Consideration,’ supra note 2 at 88–96. 38 The requirement that the consideration be of value is presented in the alternative form of a benefit or detriment. Why it took this form and what significance should attach to it are interesting questions. In my view, the answer is probably historical and practical. Relatively early in the development of assumpsit, the definition of a valuable consideration went further than the already familiar definition of quid pro quo for debt which was limited to an executed benefit actually conferred on the debtor-defendant.

254 UNIVERSITY OF TORONTO LAW JOURNAL More particularly, benefit and detriment refer to the fact that the substance of the consideration – what is promised or done by the promisee – must be something that can be used or wanted for use. As a detriment to the promisee, the consideration must involve the giving up of something which is either an object of the promisee’s possible purposes and interests or a condition of his pursuit of possible purposes and interests. It is the giving up of something possibly advantageous to the promisee and thus something that the promisee could want to have and enjoy. Benefit to the promisor is essentially the same thing as detriment; only this time, it refers to something that can relate to the promisor’s uses rather than to the promisee’s; it involves an addition to, rather than a subtraction from, whatever the promisor might have used or enjoyed independently of the promisee. As long as a purported benefit or detriment meets this test, it does not matter whether it has a determinate exchange value. To qualify as a legal benefit or detriment, the substance of the promise or act must simply be something which, in a concrete and specific sense, can be the object of the appropriate party’s uses and enjoyment. This may include things, services, and freedom of action. The fact that consideration must be a detriment to the promisee or a benefit to the promisor ensures that the content or substance of the promisee’s return promise or act is, as such, irreducible to being merely an aspect or consequence of the first party’s promise. For presumably the latter’s promise, including its consequences, represents a benefit to the promisee. Thus, the requirement of benefit or detriment fits with, and indeed, fills out, the structural requirements that the consideration be

Assumpsit widened the content of the idea of quid pro quo by including a ‘charge,’ ‘burden’ or ‘detriment’ to or upon the promisee even though it did not actually transfer any value or object to the promisor or, for that matter, to anyone else. This historically significant development was affirmed and enshrined in the formulation of benefit or burden. If benefit is construed in a limited way as involving an actual or promised conferral of a value or object from the promisee on the promisor, the formulation was and remains practically important by ensuring this more inclusive definition of valuable consideration. At the same time, it should be recalled here that because any consideration must be requested by the promisor in return for her promise, it is, by definition, something that the promisor must treat as wanted by her in light of her purposes, even if it imposes a burden or charge upon the promisee. It is also worth noting that the widening of the definition of benefit to include a not yet executed but a merely promised advantage did not give rise to substantial judicial discussion when it was settled in the late sixteenth century. In fact, this extension was viewed as unproblematic and was effected almost as a matter of course. This is striking and stands in sharp contrast with the historically substantial judicial discussions and serious disagreements over whether assumpsit could lie for mere non-performance (‘nonfeasance’) prior to being accepted at the beginning of the sixteenth century. For historical discussion of these points see the works cited in note 2 supra.

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independent of the promise and move from the promisee to the promisor, as explained above. Several clarifications and qualifications are in order here. First, whether something is a legal detriment or benefit is assessed and determined on the basis of what reasonably appears from the parties’ actual interaction. It is not decided in the abstract or imposed on the parties. Strictly speaking, there cannot be an ‘invented’39 consideration, if by this is meant a consideration that does not reasonably appear through an analysis of the parties’ interaction, where interaction includes both express and implied aspects as well as underlying assumptions that reasonably may be imputed to the parties in the circumstances surrounding their particular interaction. Second, the detriment or benefit must refer to something that it is physically and legally possible for the relevant party to do or have, as the case may be. For example, if the promisee purports to give up something that he could not possibly have done or used or that he is under a legal duty not to do or use, it is not a legal detriment and no consideration. But as long as the promisee might have done or used it, physically and legally, promising to refrain or actually refraining from doing so is sufficient. It follows from this that, even if it can be shown that the promisee could and would have, in fact, refrained in the same way and time, even apart from the contract, this should not disqualify the consideration. The course of action was still possible, and so there was something to give up and to limit. Third, the interests and purposes that are supposed in specifying benefit and detriment need not be self-regarding in contrast to altruistic. So long as the interests can reasonably appear to be interests of a party, that is sufficient. Similarly, the benefit or detriment must refer to something that, as a matter of law and fact, can be or could have been used or enjoyed by a party in his or her own right and for his or her own purposes.40 But benefiting another is perfectly intelligible as something that I might want and so can count as an interest of my own. There is a final feature of the doctrine of consideration that I wish to note. While the consideration must be a legal benefit or detriment in the sense just discussed, its comparative value in relation to the promise for which it is undertaken or done is irrelevant in determining whether it is a sufficient consideration. This is reflected in the fact that, early in the history of the doctrine, courts readily held that there could be

39 The term is from Guenter H Treitel, ‘Consideration: A Critical Analysis of Professor Atiyah’s Fundamental Restatement’ (1976) 50 Austl L J 439 at 440 ff. 40 Early cases that illustrate this limit are noted in Ibbetson, ‘Consideration,’ supra note 2 at 74.

256 UNIVERSITY OF TORONTO LAW JOURNAL so-called ‘nominal’ considerations.41 Logically, a nominal consideration is simply the smallest conceivable ‘something’ that can be a benefit to the promisor or a detriment to the promisee. As already mentioned, there is no need that it have a determinate market value. But, to be a genuine and not a sham consideration, it must meet the general definition of benefit or detriment and, in particular, the requirement that it be something that could be wanted by the parties for their use and enjoyment. It is not enough for the parties to stipulate a purported consideration where, on an objective interpretation, it could not be wanted in this way but is used solely to produce an enforceable agreement. The law does not present a nominal consideration as a legal formality. To the extent that it becomes difficult to make this distinction between nominal and sham consideration in actual circumstances, courts are rightly less ready to accept the proposition that a sufficient consideration can be nominal. In this connection, it is important to underline that the very idea of comparing promise and consideration in terms of value is foreign to the requirement of sufficient consideration. The legal conception of value is not the same as exchange value. To view promise and consideration as either actually or presumptively equal in value, they must be treated as being identically reducible to some single qualitative dimension so that they can be compared in purely quantitative terms. Only on this basis, can they be construed in terms of equivalence. But the doctrine of consideration does not do this. To the contrary, it requires that each side state a content which, when taken by itself, involves benefit or detriment and which, when compared to the other, is qualitatively different. What the doctrine of consideration emphasizes is just this need for qualitative difference. Thus a promise of $100 for $1, where the contents are just an identical currency, is not a promise for consideration but an unenforceable gratuitous promise for $99. In this way, the requirement that the consideration be given in return for the promise can be further specified as involving a relation, quite literally, of quid pro quo – something for something else – with no reference whatsoever to their comparative values, let alone to their being equivalent in value. To avoid misunderstanding, I should emphasize that I am only suggesting that equivalence is irrelevant from the standpoint of the doctrine of consideration. Equivalence is the character of a relation that goes beyond what consideration requires. But this by no means entails that equivalence is not, or should not be, a concern of contract law. Nor that such a concern would necessarily be incompatible or even in tension with the doctrine of consideration itself. It points only to the limited function and standpoint of this doctrine. Whether equivalence 41 See e.g. Simpson, History, supra note 3 at 446; Ibbetson, ‘Consideration,’ supra note 2 at 72 –4.

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is required by some other doctrine of contract law and how consideration and this other doctrine might fit together are questions of the first importance. However, they go beyond the scope of this article.42 We see, then, that, given these features of consideration – and, in particular, the irrelevance of exchange value – the doctrine allows for transactions that range from full-blown exchanges involving equivalence to what may be called ‘mixed’ transactions in which the parties reasonably intend a gift element.43 All of these can fully embody the two-sidedness required by the doctrine. The analysis of an exchange transaction is exactly the same as one that does not seem to involve equivalence in any market or economic sense. Given the wide definition of legal detriment, which includes the promisee’s giving up something that need not be of any use to the promisor or, indeed, to anyone else, nonexchange transactions are on an equal parity with exchanges. Whether contracts involving such legal detriments should be classified as fully enforceable ‘gift’ contracts – as Hobbes characterized them44 – they fully satisfy all the aspects of consideration and are not, in any straightforward sense, exchanges. Thus, consideration appears to single out a certain kind of bilateral relation rather than economic exchanges as such. If, as many writers do, one wishes to designate the doctrine of consideration as a ‘bargain theory’ of enforceability, ‘bargain’ should, therefore, be taken only in the limited sense of referring to the doctrine’s requirement of mutual inducement. Anything more would mischaracterize the doctrine at a basic level. IV

A juridical conception of consideration

In light of our discussion thus far and for the purpose of seeing whether we can make sense of the law within its own framework, a theory of consideration should take seriously the following desiderata. To begin with the central requirement, a theory of consideration should take as its basic unit of analysis the two-sided or bilateral relation that characterizes any agreement that satisfies consideration. It does not begin with a preconceived, extrinsic notion of relation – such as the seriously intended promise which, at the time of making, the promisor has reason to perform and the promisee wants to be performed45 – and then judge 42 I have discussed these further issues in ‘The Unity of Contract Law’ in Peter Benson, ed, The Theory of Contract Law (Cambridge: Cambridge University Press, 2001) at 184–95. 43 This feature of the common-law doctrine of consideration is noted by von Mehren, supra note 3 at 1031, 1033. 44 Hobbes, supra note 20. 45 Despite their great differences in approach, this is the benchmark shared by Fried, supra note 4, and Cooter & Ulen, supra note 12.

258 UNIVERSITY OF TORONTO LAW JOURNAL consideration against this standard and in light of principles and values that underlie it. Rather, it starts with the specific kind of relation set up by the requirement of consideration and seeks the principles and values that inform it. Accordingly, it is in and through this relation that we should discern a division between expressions of intent that do not bind and manifestations of assent that do. Moreover, a conception of private autonomy or will theory that is the basis of contractual liability must also be determined in this way and not construed independently of this relation. Second, a theory of consideration should be consistent with the long and well-settled point that all the basic categories of consideration are on a level of parity. In particular, mutual promises, no less than unilateral contracts (including the half-completed exchange), fully satisfy the requirement of sufficient consideration. The same is true of nominal consideration. Third, it must try to make sense of the classification of all promises without consideration as gratuitous and explain their non-enforceability consistently with the enforceability of gift transactions. Fourth, in keeping with consideration’s historically dominant – and still largely prevailing – role, the theory should take it to set a necessary, and not merely a sufficient, condition of contractual liability, where such liability is understood as aiming to vindicate the expectation interest via expectation damages or specific performance. Through an analysis of the relation constituted by consideration, we should try to explain the basis of this connection between consideration and the expectation standard of liability. A CONSIDERATION AND CONTROL

In the classical view, the doctrine of consideration states a necessary condition of full contractual liability (according to the expectation standard) and categorically denies this status to non-formal promises without consideration. Mutual promises meet this requirement, but donative (gratuitous) promises do not. At the same time, executed gifts are fully enforceable as transfers of property. This evidences the absence of a common-law stance against gifts as such. It also immediately raises the basic question of how, given the enforceability of gifts, the common law can reasonably and consistently deny the enforceability of promises to give. Since this question is fundamental to a justification of consideration, I want to explain consideration in a way that directly answers it. I will, therefore, first try to clarify the juridical relation that constitutes a completed gift.46 46 For my analysis of gifts, I have drawn principally on Ray A Brown, The Law of Personal Property, 2nd ed (Chicago: Callaghan, 1955) at ch 7; Michael Bridge, Personal Property Law, 3rd ed (Oxford: Oxford University Press, 2002) at 93ff; and Michael Pickard, ‘The Goodness of Giving, The Justice of Gifts and Trusts’ (1983) 33 UTLJ 381.

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It is trite law that, for there to be a transfer of ownership via gift, the donor must deliver the object of the gift with the requisite unconditional intention to give and the donee must accept the object as so given. I wish to analyse these constituent elements of a gift in a little more depth. Delivery consists in the donor’s completely surrendering physical possession and actual control of the thing in such a way that it passes into the exclusive power or control of the donee or his agent. Delivery places the object under the donee’s control and so establishes a certain nexus with the donee. If the donor does this with the evident and unreserved intent to give over complete, exclusive control to the donee, there is donative intent. Thus, donative intent is, and can only be, the reasonably apparent purposive meaning of an external act that constitutes delivery. A key feature of this relation is that delivery with donative intent is completed by the donor alone and the donee’s acceptance must be with respect to the object as already delivered. While delivery may elicit the donee’s response via acceptance, the former represents the donor’s unilateral decision and act alone and is not itself specified as just one side of a bilateral relation that refers to what the other party must do in return. Indeed, while it is true that, on the donee’s side, there must be acceptance, this does not necessarily require express or positive conduct by him. For example, the requirement of acceptance can be fully satisfied even if the donee is unaware of the gift. In keeping with the idea of implied acceptance, it was expressly held in one influential English case that a gift takes effect and ownership vests immediately upon execution by the donor, subject to later repudiation by the donee.47 So we may say that, although a gift entails a relation between donor and donee, the essential positive operative acts that establish this relation are done by the donor alone and these acts are not themselves specified or defined as being one side of a bilateral relation that requires the participation of both parties. Why isn’t a donor’s communicated intention to transfer ownership susceptible, by itself, of expressing donative intent and, where serious and credible, effective in conferring a gift? Why, in other words, is delivery essential? This question is clearly crucial to understanding gift transactions and, we will see, it also sheds light on our main topic, the rationale for consideration. The key to an answer lies in the fact that, in order to effect a gift, a donor’s acts must accomplish a present and exhaustive transfer of control from donor to donee, leaving no residue of control to be transferred in the future.48 Whereas delivery with donative purpose meets this criterion, mere words of intention, however framed and formulated, are taken as at most expressing a commitment to transfer 47 Standing v Bowring (1883) LR 31 ChD 282, discussed in Brown, ibid at 128. 48 My analysis follows and tries to build on Brown, ibid at 78ff.

260 UNIVERSITY OF TORONTO LAW JOURNAL ownership in the future and so as effecting no present transfer at all. Mere words without delivery are treated as a promise to give and as unenforceable for want of consideration. Let me explain. A gift transaction starts with the external fact that, as against the donee, the donor alone has present exclusive control over and possession of the object at issue. So long as this state of affairs continues, the donor can always exclude the donee. Now, although it is necessary that, in any transfer of ownership, a transferor’s decision to give up ownership in favour of another party must be her own independent decision and choice – otherwise her rights as owner are denied – a gift transaction has this further distinguishing feature that this decision is not itself specified in terms of anything that the donee must do. It is a wholly unilateral, separate act done by the donor alone. Through this act, the donor puts the thing in a condition such that the donee can independently assert control over it as he wills. Unless and until the donee can rightfully do this as a result of the donor’s decision, the donee cannot reasonably claim against the donor that she has given up control. Supposing the foregoing to be so, if all the donor has done is to say ‘I give you this’ without delivery, the problem is as follows. Her words express her intent alone, without any participation whatsoever by the donee. She has done nothing that takes the decision out of her hands and places it in those of the donee. At the same time, in the absence of delivery, the donor continues to exercise present exclusive control over the object no differently than before. Objectively – that is, in relation to the donee – she has, therefore, done nothing that unequivocally has, then and there, put the object outside her present exclusive authority and under that of the donee. Whether or not the transfer takes place is still up to her; her words, however expressed, can, therefore, reasonably mean only a present intention or undertaking to transfer in the future. These words may create moral expectations in the donee and justified disappointment if there is no follow-through. But there has not been a present transfer, and so no gift at all. To avoid this conclusion, what is needed is some external act that can cancel now the donor’s present exclusive control over her object. Where, as we have supposed, this act is wholly the transferor’s, without being linked with a complementary act by the transferee, it can only be by delivery: that is, by the transferor yielding the object into the transferee’s exclusive physical control. Note that, on the view that I am suggesting, delivery is not explained primarily as a ‘needed natural legal formality’ in Fuller’s terms. Rather, it is taken as a constitutive act the reasonable meaning of which is that it transfers control from one party to the other.49 49 This is in keeping with Lord Esher’s view stated in the leading case of Cochrane v Moore (1890) LR 25 QBD 57: ‘[A]ctual delivery in the case of a ‘gift’ is more than evidence of the proposition of law which constitutes a gift . . . it is a part of the proposition itself. It

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Now, in striking contrast with the operative acts that give rise to a gift, contract formation can be wholly prior to and independent of delivery. Indeed, this is what is distinctive about the contractual relation. Thus, by words of promising alone – by mutual promises – parties are able to establish a fully enforceable contractual relation between themselves. In contract, physical delivery becomes performance; but whereas, in gift, delivery establishes the nexus between the parties that gives the donee a protected interest vis-a`-vis the donor, in contract, it is the agreement itself, and not performance, that vests an entitlement in the promisee. Our question is: consistently with the requirement of delivery in gift and the non-enforceability of mere donative promises, how can mutual promises by themselves establish this nexus between the parties? In light of the above discussion of delivery in gifts, it would seem essential that, in the case of mutual promises, even though the parties promise each other and thus undertake to do something in the future, the reasonable meaning of these mutual expressions must, in normative legal terms, not be future-oriented or leave anything to the future choice or doing of the promisors.50 Taken by themselves, their mutual expressions must count as present and exhaustive acts that already accomplish in legal contemplation the whole content that is physically to be carried out by performance. The act or content that is promised must be done in and through making the promise. What must be expunged, therefore, is any normative division of labour between the promise and performance so far as rights are involved. To clarify what this entails, consider its contrary: in everyday life, there is a familiar, perfectly intelligible case of promising where I can bind myself now to do something later and where I, the promisor, am and remain in control of my decision and its content up to and including the moment when I perform; it is only if and when I perform that anything comes under the promisee’s own control. Until then, and in the face of my continuing control, the promisee may place trust in me and may nurture the hope or expectation that I will, in fact, follow through, but there is nothing more: the promise by itself establishes just such a relation of trust between us. To affect control, the promisor must still choose to act in the future, and unless he or she does, control does not transfer to the promisee.

is one of the facts which constitute the proposition that a gift has been made.’ Similarly, Brown, ibid at 80, n 7. 50 This premise is emphasized by Hobbes, supra note 20 at 192 –4 [66 –8], in his analysis of contracts (enforceable in principle) as distinguished from unenforceable promises. I have found Hobbes’s entire discussion of contract as a mutual transfer of rights particularly illuminating in developing this account of consideration.

262 UNIVERSITY OF TORONTO LAW JOURNAL Now, the crucial normative condition of this sort of division between promise and performance is that, although the promise may be to or for the promisee, making the promise is and remains entirely the selfimposed decision of the promisor alone. Call this condition ‘unilaterality.’ As long as this condition holds, the promisee cannot reasonably conclude that the promisor has, merely by promising, placed the promised performance outside her own initial exclusive control and under that of the promisee. In the case of gifts, we have seen that delivery cancels unilaterality. This is the significance of delivery. In the absence of delivery, the law treats a party’s words of giving as a mere promise to give, which, if unsupported by consideration, produces no legal effects. This suggests that, like delivery, the requirement of consideration also cancels unilaterality. And, indeed, it does. In fact, this is what it always and necessarily accomplishes. In our earlier discussion of the main features of consideration, we saw that the doctrine requires that there be two sides, each of which counts as a side that is separate from – yet, at the same time, intrinsically related to – the other. No side is more basic or more significant than the other. Whatever can be said of the one, can and must be said of the other. Even in terms of substance, we may say of both promises that each represents just something that is either a benefit to the promisor or a detriment to the promisee. Now, because my promise is stipulated as made in return for your promise, and vice versa, neither counts as a promise outside of this relation of promise for promise. I have placed my promise, as a promise, beyond my control because it is specified in terms of something that you must do to make it a promise. And the same holds for you. Each side has engaged the participation of the other in the most complete way that is available to her independently of and prior to delivery. By framing my promise in terms of what you must do in return, I necessarily intend a bilateral relation which is not produced by me alone but which, to the contrary, is our joint and inseparable work. Because the promises are entirely and exclusively constituents of this relation between them, there cannot be any residual power in either party to exercise control over, or to make any further decision with respect to, her promise or what she has promised the other. For, as already noted, such further decision or control would have to be unilaterally exercised by a party and this is precisely what is incompatible with the fact of the relation. Thus, mutual promises that satisfy consideration do not involve anything that remains to be done by one or other party in the future. So understood, mutual promises are irreducible to mere donative words that can reasonably be taken as unilateral and future-oriented. Thus, the initial power to decide, which originally resides with each party, is superseded by a relation in which, pro tanto,

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neither can decide anything on her own. What governs now is only and wholly the reasonable meaning of that bilateral relation and whatever it entails. In the case of gifts, delivery by which the donor yields physical control of her thing to the donee is necessary because the donor’s act of giving is solely with respect to something that is under her control and is itself strictly unilateral. In the case of mutual promises, however, the agreement, which is the whole contractual transaction, is not constituted, even for an instant or in part, by the unilateral act of either of the parties. Each party’s act is always an inherently inseparable aspect of their mutual acts that link whatever comes under that party’s control to something else that is not under her control but rather under the control of another, and vice versa. There is never a decision to give which does not involve, at the same time, a decision to receive. Mutual promises can establish the requisite bilateral nexus between the parties without delivery. And same is even more obviously the case where the consideration consists in a return act. Why can’t a simple ‘I accept’ from the promisee without consideration suffice to complete the first party’s gratuitous promise? It appears twosided, and it apparently transposes in the medium of words the very interaction that constitutes a completed gift. But we can see that this is not so. To count as two-sided, the acceptance must reasonably and unequivocally appear as an independent act in return for the promise and not merely a reaction to or an aspect of it. However, apart from a prior and binding legal formality or agreement that would attribute contractual effects to this interaction or stamp a given meaning on the words ‘I accept,’ the latter can reasonably be viewed just as a reaction to the promise, thereby entailing a relation characterized by a unilateral decision still residing with the promisor and corresponding anticipation and trust on the side of the promisee. An ‘acceptance’ without consideration does not establish the requisite bilateral relation. What, then, are the legal significance and role of the promissory dimension in the promise-for-consideration relation? On the surface, a promise bespeaks an undertaking and commitment to do something in the future: a unilateral, self-imposed duty to give or do something in the future. But on the view I am suggesting, this is not, in fact, its legal or juridical significance in the promise-for-consideration relation. The promise is embedded in a relationship that is thoroughly and irreducibly bilateral. While it is true that each party must decide to engage the other – for otherwise, their relation cannot be voluntary – the basis of their obligations toward each other is this voluntary relation, not their individual promises. The future-orientation of their promises has a different function. First, it is only by making a ‘promise,’ that is, a representation that something will be given or done, that a party can engage the other to

264 UNIVERSITY OF TORONTO LAW JOURNAL respond and to give or do something in return, whether a return promise or act, as part of one transaction. Otherwise, the second party’s response will be to an already executed act and so cannot function as the second side of a bilateral relation. Second, even in its ordinary, non-juridical sense, a promise expresses a firm, unequivocal, and crystallized decision now in the present, albeit to do something in the future. It is this aspect of being a clear and present decision that is pertinent in the contractual relation. It allows the law to construe each side as contributing an act, in the sense of a crystallized, external manifestation of choice, and it provides the parties with a mutually apparent marker that divides exploratory expressions of intention and negotiations from binding decisions. Third, because promise is the kind of act that posits a difference between two distinct moments – present and future – it enables the law to draw the fundamental distinction (discussed below) between the acquisition of ownership, which occurs at contract formation, and the gaining of actual possession and enjoyment through performance. As I will explain, this is the logical basis of the law’s being able to treat mutual promises as fully enforceable according to the expectation measure. The key point is that the promissory dimension of the bilateral relation of promise for consideration should not be equated with that of a gratuitous promise: the normative significance and role of each are qualitatively different. By making mutual promises that satisfy consideration, the parties may reasonably be supposed to have an intention to bring about this relation.51 Moreover, their intention is filled out by construing the reasonable meaning of this relation and is respected by giving effect to this meaning. What, then, is a reasonable juridical meaning of their relation? In thinking about this, I want to come back to the case of gifts. For here, the transfer of control from donor to donee via delivery involves and effects a transfer of ownership between them. This is the juridical meaning of the transfer of control. For present purposes, I shall provisionally take ‘ownership’ in the wide sense to mean any sort of rightful exclusive control as against others with respect to some object or service. On this view of ownership, proprietary rights are but one specific kind of ownership and do not necessarily exhaust its possibilities. The entitlements or protected interests acquired at and through contract formation involve, I want to suggest, another distinctive sort of ownership. Thus, contract formation also constitutes and effects a transfer of ownership understood in this widest sense. Indeed, as I explain in the next section, this must be, in general terms, the reasonable juridical meaning of contract 51 This agrees with and extends an idea that Michael Pickard makes with respect to trusts and gifts; see, in particular, his discussion in Pickard, supra note 46 at 399– 406.

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formation. The role and rationale of consideration is that it specifies a kind of bilateral interaction that reflects this meaning and makes it concrete.

B CONSIDERATION AS A TRANSFER OF OWNERSHIP BETWEEN THE PARTIES

If we take ‘ownership’52 in the wide sense to mean any sort of rightful exclusive control as against others with respect to some object or service, contract formation must be conceived as a transfer of ownership between the parties which, in contrast to gifts, can be effective prior to and independent of delivery. This is the reasonable juridical meaning of the relation constituted by consideration. Why is this? Rather than try to show that it is justified by or derived from some set of theoretical first principles, it is sufficient for our purposes to argue that contract formation must be so viewed if it is to be consistent with the compensatory character of expectation remedies. Only if formation is understood in this way can there be a fit between it and this fundamental feature of contract law. Let me elaborate briefly. It is a basic and long-settled principle of contract law53 that, in giving a remedy for breach of contract, the law aims to put the plaintiff in the position he would be in if he had received full performance by the defendant. This is a ruling principle. It is also a principle of compensation. As a principle of compensation, it must suppose that the remedy, whether damages or specific performance, restores to the plaintiff what he was deprived of by the breach. What it cannot do, as compensatory, is give the plaintiff something more than he already had prior to and but for the wrong. This is in keeping with the general idea that compensation place the plaintiff ‘in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.’54 Breach must therefore figure as an interference with something that already belongs rightfully to the plaintiff and the source of this entitlement must be contract formation itself. To be consistent with the compensatory character of expectation remedies, contract formation must, therefore, be conceived as a moment of rightful acquisition by one party from another: a transfer of ownership between the parties of a kind that is directly reflected in the expectation remedies. 52 Keep in mind, here, that on the view that I am elaborating, ownership and proprietary rights (in rem) are not the same; rather property is but one species of ownership, with contractual entitlements being another, qualitatively different sort of ownership. 53 According to Ibbetson, it dates from the sixteenth century, if not before; see Ibbetson, Historical, supra note 2 at 87ff, 131ff. See also the discussion in AW Brian Simpson, ‘The Horwitz Thesis and the History of Contracts’ (1979) 46 U Chicago L Rev 533 at 556 –8. 54 Livingstone v Rawyards Coal Co (1880) 5 AC 25 at 39.

266 UNIVERSITY OF TORONTO LAW JOURNAL There is, however, an immediate and serious difficulty that seems to stand in the way of this view. Contract formation consists of promises but, as noted earlier, there is a very familiar and certainly intelligible55 practice of promising in which the promisee does not reasonably view herself as acquiring anything to the exclusion of the promisor by the latter’s promise alone. She simply trusts (and perhaps expects) the promisor, who may be morally bound, to carry through as promised. Breach of promise thus counts as a failure to confer this promised benefit on the promisee. It does not deprive the promisee of anything that was already rightfully hers as against the promisor. This is, in fact, the fundamental challenge famously raised by Fuller against the expectation principle of compensation.56 Fuller treats all promises, including mutual promises that satisfy consideration, as giving rise to this difficulty. At the same time, we have seen that Fuller views completed gifts and exchanges as rights-altering. As long as a transaction involves some kind of voluntary physical transfer of a specific thing by one party to another, the latter does obtain the required protected interest. But this interest is proprietary, not contractual. A problem seems, therefore, to arise wherever the plaintiff’s claim is founded upon the other’s mere commitment to future performance rather than on completed acts that presently transfer specific property. I would like to suggest that, in treating all promises alike, Fuller overlooks the basic qualitative differences between promissory relations that embody consideration and those that do not. We have already seen that, in the promise-for-consideration relation, the promisor does not retain any unilateral control but, instead, has already vested mutually related control in the promisee. Moreover, the promise counts as a fully present act that is complete and productive when made. I now want to take this analysis one step further and show that the content of this relation, constituted by promise for consideration, may reasonably 55 Grotius, and following him Pufendorf, call it an ‘imperfect promise’ and analyse it as morally binding but as transferring no rights. See Hugo Grotius, The Rights of War and Peace, ed by Richard Tuck. (Indianapolis: Liberty Fund, 2005) at 2.9.3; Samuel von Pufendorf, On the Law of Nature and Nations (Oxford: Clarendon Press, 1934) at 3.5.6. 56 In Lon L Fuller & William R Perdue, ‘The Reliance Interest in Contract Damages’ (1936) 52 Yale LJ at 52 –7, esp at 56, n 7. I have discussed Fuller’s challenge as well as the answer that I propose here in previous work, beginning with Peter Benson, ‘Toward a Pure Theory of Contract’ (LLM thesis, Harvard Law School1983); later in Peter Benson, ‘Contract’ in Dennis Patterson, ed., A Companion to Philosophy and Legal Theory (Oxford: Blackwell, 1996) 24 at 25–9 and Peter Benson, ‘The Expectation and Reliance Interests in Contract Theory: A Reply to Fuller and Perdue’ Issues in Legal Scholarship, online: (2001) 1:5 ,http://www.bepress.com/ ils/iss1/art5.; and most recently, in Peter Benson, ‘Contract as a Transfer of Ownership’ (2007) 48 Wm & Mary L Rev 1673 at 1674 –80 [Benson, ‘Contract as a Transfer’].

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be construed in terms of the elements of ownership in a wide sense, allowing us to characterize contract formation as a transfer of ownership between the parties that is valid and effectual independently of delivery.57 To begin, the fact that consideration must have value in the eye of the law and, more specifically, must be a benefit to the promisor or a detriment to the promisee means that the substance of the consideration may be construed in terms of ownership in the wide sense: it refers to an object or service that is ascertainable, useful, separable from the person, and subject to an individual’s rightful exclusive control. Any benefit or detriment consideration must have these features. Moreover, to function as consideration, the benefit or detriment must be referred by the promisee to the promisor’s power to control, use, and enjoy it. This is the simple meaning of the fact that the consideration must be promised or done by the promisee for the promisor and at his request. Insofar as the benefit or detriment must move from the promisee to the promisor, the consideration can be construed as something usable to the promisor that the promisee has placed under the promisor’s control. This rightful control must be exclusive as against the promisee: what was on the promisee’s side has now moved to the side of the promisor. As already noted in the discussion of the main features of the doctrine, the promisor’s having such exclusive control is fully consistent with the fact that the consideration may directly confer material benefit upon a third party. Consideration is, thus, a moving of something useable from the exclusive control of one party to that of the other, where this movement is effected by, and indeed constitutes, their interaction. If we suppose the consideration is physically executed in fulfilment of the promisee’s evident intent to give or do it in return for the other’s promise, the transaction is valid as a complete transfer of ownership between the parties. This is particularly clear where the consideration is an object, but it also applies where it consists in an act or service.58 The promisee’s manifest intent is such that it can produce this legal effect. If it could not, the mere fact of physical transfer would not be sufficient. Now if this is so, it must also be the case that this same intent can be equally effective without delivery so long as it animates a relation that 57 The general form of this response is explicitly set out by, among others, Grotius, supra note 55; Pufendorf, supra note 55; Hobbes, supra note 20; and Georg Wilhelm Friedrich Hegel, Philosophy of Right, translated by TM Knox (Oxford: Oxford University Press, 1952) at paras 72–9, Working strictly within the parameters of a legal point of view, I argue that consideration may be understood in these terms. 58 In doing the service, the promisee’s act, though not an object, belongs to the promisor in the sense that it is under the promisor’s, not the promisee’s, rightful control and its value and use belong to the former, not the latter. For further discussion, see Benson, ‘Contract as a Transfer,’ supra note 56 at 1728 –9.

268 UNIVERSITY OF TORONTO LAW JOURNAL can perform the same function as delivery. But, as I tried to show in the preceding section, the bilateral relation established by promise for consideration meets this criterion. My argument, therefore, is simply that the promise-for-consideration relation, which actually constitutes contract formation, can be reasonably construed in terms of ownership and a transfer of ownership, and that it must be possible to so view formation if the law’s characterization of expectation damages as compensatory is to be vindicated. Now, this way of understanding consideration and contract formation immediately raises certain questions. For example, if indeed there is a transfer of ownership at contract formation, how is this consistent with the fact that it is not until performance that the parties are entitled to take physical possession of what already, ex hypothesi, belongs to them? Further, how does this characterization of contract formation fit with the standard view that the parties’ contractual entitlements are in personam, holding only as between them? To clarify the proposed view of contract formation and to try to prevent misunderstanding, I should address these concerns. To start, it is worth noting that the law of gifts carefully but definitely distinguishes between the vesting of an ownership interest and the exercise or enjoyment of that interest.59 On the one hand, ownership must presently vest with the donee or there has been no gift. This is accomplished by delivery animated by an intent to confer unreserved present ownership on the donee. On the other hand, for ownership to vest presently, it is not necessary that the donee have actual physical possession, or even be entitled to immediate physical possession, of the object gifted. The object may be in the possession of a third party, and the time when the donor intends the donee to use and enjoy it may be in the future, with someone else – possibly the donor herself – being entitled to use and enjoy the thing until the designated future time. It is only necessary that the timing of future enjoyment and use be definite, certain, and no longer subject to the donor’s unilateral decision. Ownership can thus be acquired or transferred – and the object rightfully and exclusively belong to the donee – even if actual use and enjoyment are only to be later. While the transfer of ownership via gift must include a determination of some time when the donee can henceforth physically possess and use the object, the timing is up to the donor to decide and may be after delivery. In the case of mutual promises, this distinction between the vesting (or acquisition) and enjoyment of ownership appears even more explicitly and is taken one step further via the differentiation between contract formation and performance. As between the parties, ownership is

59 This paragraph draws on Brown, supra note 46 at 114– 9.

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transferred at formation, with performance representing the modality and timing of the promisee’s authorized exercise of physical control over and enjoyment of the transferred interest. The crucial point is that, when a party performs, he or she does not do so as present owner of the object or service that is the subject matter of the performance.60 As between the parties, it already belongs to the one to whom performance is contractually owed.61 From the moment of contract formation and as between the parties, neither party can act in a way that is inconsistent with the other’s exercising rightful control over and enjoying her interest as decided by the express and implied terms of their agreement.62 The difference between gift and contract in this respect is that, in the former, these modalities of possessing and enjoying the object are determined by the donor’s unilateral intention embodied via delivery, whereas, in contract, they are decided in and through the parties’ mutual promises alone. Is there a difficulty in conceiving this contractual transfer of ownership as involving in personam entitlements in keeping with the standard distinction between contract and property rights? To see why not, it is important to keep in mind, here, that the contractual transfer of ownership – the relation which this transfer involves – is what constitutes contract formation. Contract formation is the transfer as such, not the results of that transfer or any other factor viewed apart from the transaction. And this transfer is itself constituted by the form and content of the promise-for-consideration nexus between the parties. It follows that just as the latter has a character that is strictly mutual and bilateral as between the parties, so the ownership that must be possible at formation is, and can only be, as between the parties. The entire analysis holds just as between them. The conception of entitlement is transactional, not proprietary.63 60 Pufendorf, supra note 55 at 610, makes this point explicitly: ‘Indeed, delivery of possession itself is not, properly speaking, the final act of dominion, but an abdication of physical retention. For that is held an act of dominion which is exercised freely from the power of dominion, while delivery of possession does not take place freely but of necessity, or because of an obligation.’ 61 What is the legal character of the promisor’s possession and possible use of the object (consistent with the contractual terms) prior to performance if ownership has been transferred? It constitutes rightful possession but is less than ownership, as with the protected interest that a bailee can have as against the bailor. 62 In the leading case of Hochster v De La Tour (1853), 2 El & Bl 678 (QB), the court explicitly makes this relation the basis of its conclusion that there can be an anticipatory repudiation amounting to breach despite its being prior to the stipulated time for performance. 63 This distinction – and the fact that the contractual interest acquired in and through formation is itself thoroughly transactional – is consistent with the common-law distinction between chose in possession and chose in action. Blackstone writes,

270 UNIVERSITY OF TORONTO LAW JOURNAL Thus, I can reasonably claim vis-a`-vis you that, in light of our making with each other mutual promises that satisfy consideration, you have vested in me rightful control over the promised content from the moment of contract formation, and vice versa. The reason you cannot resile and assert control over this content is that it belongs to me not as against the world but rather because of the contract – in other words, because of, and as an incident of, our transfer involving our mutually related acts. Because the entitlement is framed as an aspect of the transfer, it can only be between the parties and not as against third parties. Contract is contract formation, and the latter is just this transfer as a transaction. In the words of the seventeenth-century English writer, Jeffrey Gilbert, ‘[C]ontract is the act of two or more persons concurring, the one in parting with, and the other in receiving some property right or benefit.’64 Viewing contract in this way can resolve an apparent dilemma that led Fredrick Pollock, among others, famously to conclude that there is no logical justification for holding mutual promises to be sufficient consideration for each other, despite the fact that this rule is ‘the most characteristic in our law of consideration and the most important for the business of life.’65 The difficulty may be stated as follows.66 Mutual promises can be valid consideration, each for the other, only if each, taken by itself, is a benefit or detriment in the required way. However, unless the promise is legally binding, it can be neither a benefit nor a detriment. But we cannot suppose this. For the promise is not enforceable unless it itself is supported by valid consideration, and in this case of mutual promises, the consideration must be the other promise, which itself must be a detriment or benefit and so already binding, and so forth. On this analysis, there is clearly a vicious circle. The difficulty arises because the promise is treated as a separate act that needs a second, separate factor – here, another promise – to make it enforceable; but since this also is ‘A contract may also be either executed . . . in which case the possession and the right are transferred together; or it may be executory . . . here the right only vests, and their reciprocal property in each other’s horse is not in possession but in action; for a contract executed conveys a chose in possession; a contract executory conveys . . . a chose in action . . .’ JW Ehrlich, ed, Ehrlich’s Blackstone (San Carlos, CA: Nourse, 1959) at 391 [Title by Gift, Grant, and Contract: Consideration]. Blackstone notes that being given a valuable consideration for what she has promised, the promisor is ‘as much an owner . . . as any other person’; ibid. 64 Jeffrey Gilbert, Of Contracts (about 1710), London, British Library (Hargrave ms 265, folio 39), cited in Stephen M Waddams, Principle and Policy in Contract Law: Competing or Complementary Concepts? Cambridge, UK: Cambridge University Press [forthcoming] at ch 3. 65 Frederick Pollock, Principles of Contract (London: Stevens and Sons, 1921) at 193 [Pollock, Principles]. 66 Frederick Pollock, ‘Note’ 28 Law Q Rev 101.

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true for the second promise with respect to the first, a vicious circle results. But once we understand, as I have argued we can, mutual promises as two sides of a single bilateral relation and therefore as absolutely inseparable and co-present, the logical basis for this problem disappears. Moreover, specified as a transfer of ownership between the parties, this relation suggests a quite different way of understanding the benefit or detriment imported by a promise. In the discussion of the main features of consideration, I pointed out that, by having a content that is a detriment or benefit in the required way, a promise-consideration may reasonably be construed as independent, rather than as an aspect, of the promise for which it is given. This ensures a two-sided relation. Specifying this relation as a transfer of ownership entails that, in the case of mutual promises, each side give and receive something that counts as his or her ‘own’ prior to performance. Understood as aspects of this relation, benefit and detriment are not factors that make the other side’s promise binding. Benefit and detriment do not produce an obligation. Rather, construed as aspects of the bilateral relation involving a transfer of ownership, a promise-consideration necessarily confers a benefit on the promisor or imposes a detriment on the promisee because benefit and detriment characterize, or pertain to, the ownership that has been transferred. At contract formation, benefit or detriment are respectively ‘added’ or ‘subtracted’ through being vested with the promisor as a matter of rightful ownership, even though, in physical terms, they are enjoyed or suffered only through performance. This, we have seen, is how we view completed gifts where ownership vests though the enjoyment of it is postponed. It is also how the common law viewed contracts for sale as early as the fourteenth century.67 In the eye of the law, the buyer received the benefit of the bargain, in the shape of having the ‘property’ in the goods sold, at the time of and through their agreement and independently of delivery or payment of the price. It is not surprising that when courts justified the enforcement of mutual promises from the late sixteenth century onward, they assumed, without discussion, that, at formation, the defendant had received the ‘benefit of the bargain’ in the shape of the plaintiff’s promise, so long as the promise involved benefit or detriment in the required way; and that having received it, the defendant could not reasonably complain if he was held to his side of the bargain. The courts applied 67 I draw here on the historical discussions of sale in Pollock; ibid at 179ff; David J Ibbetson, ‘Sale of Goods in the Fourteenth Century’ (1991) 107 Law Q Rev 480; David J Ibbetson, ‘From Property to Contract: The Transformation of Sale in the Middle Ages’ (1992) 13 J Legal Hist 1; and Ibbetson, Historical, supra note 2 at 35 –6, 75.

272 UNIVERSITY OF TORONTO LAW JOURNAL this analysis to any agreement involving mutual promises (and not merely to sales) whose content met the requirement of benefit or detriment. In so viewing the consideration, they did not, however, have to conceptualize the benefit as a ‘property’ in the strong sense taken by the medieval law of sale. The signal accomplishment of the law of consideration was to articulate a transactional, in contrast to a proprietary, conception of entitlement. As dimensions of this conception of entitlement, the promised contents count as legal benefit or detriment. Instead of this conception of contract formation, it might be suggested that the parties’ promises should be viewed, not as transferring ownership with respect to the substance of the consideration, but rather as the means whereby they bind themselves to transfer such ownership in the future when performance is due.68 It is only this future act that changes the parties’ entitlements as between themselves with respect to this content. Even on this alternative view, however, contract formation must include consideration and be construable as a transfer of ownership of a kind that can be represented at the remedial stage by the value of the promised consideration. This is essential to establish an appropriately bilateral relation and to preserve the compensatory character of expectation damages. If, according to this alternative view, the content of that transfer must not be with respect to the substance (that is, the object or service) of the consideration, in what might it consist? It seems that the consideration can only be the act of promising as such, in abstraction from the substance of the object or service. But this cannot reasonably be viewed as a legal benefit and detriment.69 And because acceptance of another’s gratuitous promise would be no less an act by this analysis, the giving and acceptance of any serious promise would be enough to create a perfectly good bilateral or unilateral contract. This collapses the distinction between gratuitous promises and promises for consideration.70 The teaching of the doctrine of consideration is that a party can acquire something from the other at contract formation only if this 68 This seems to have been Kant’s view. See the discussions in B Sharon Byrd & Joachim Hruschka, ‘Kant on ‘Why Must I Keep My Promise?’’ (2006) 81 Chicago-Kent L Rev 47 at 57 ff and Ernest J Weinrib, ‘Punishment and Disgorgement as Contract Remedies’ (2003) 78 Chicago-Kent L Rev 55 at 65ff. I discuss this view in more detail in Benson, ‘Contract as a Transfer,’ supra note 56 at 719ff. A further difficulty, which I don’t discuss in this present article, is that this view cannot explain expectation remedies as directly reflecting the interest acquired at formation; see Weinrib, ibid at 68. 69 This is emphasized by such writers as Pollock and Williston, among others; see Pollock, Principles, supra note 65 at 195 and Samuel Williston, ‘Consideration in Bilateral Contracts’ (1914) 27 Harv L Rev 503. 70 This consequence was pointed out by Pollock in response to the Ames’s theory of consideration; ibid at xi.

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acquisition is expressed as a giving of something else in return for it; and similarly, a party can only give something to the other party if this giving is expressed as an accepting of something else in return. In this way, each party can make his or her act part of a relation that is constituted by the co-equal acts of both, with neither side being reducible, in form or content, to being merely an effect or aspect of the other side: actus contra actum.71 The significance of this reciprocity is not that a party has thereby purchased the other’s object with his or her promise but rather that, vis-a`-vis the other, neither party retains any unilateral authority with respect to the form and content of his or her own promise or act. The conception of reciprocity is, thus, purely juridical; not economic. The parties’ promises are intelligible solely in and through this relation which they voluntarily bring about, and the parties are governed by the reasonable meaning of that relation, as specified by the various features of consideration. I have tried to show that the reasonable meaning of this relation is that it involves a transfer of ownership between the parties, with the consideration and promise providing the form and content of the transfer. This bilateral relation is the very relation that the doctrine of consideration always and necessarily establishes. Indeed, given the way the features and requirements of consideration are formulated, it seems clear that the doctrine states the essential conditions of this kind of bilateral relation in the most elementary and abstract terms applicable to any voluntary interaction. In sum, consideration singles out as enforceable, not economic exchanges, but rather bilateral relations that can be reasonably construed as transfers of ownership between the parties; and the latter include transactions on a continuum ranging from promises for nominal consideration (i.e., in material terms, those involving a gift element) to promises for equal value (i.e., full exchanges). Clearly, this account of consideration does not see it primarily as a surrogate for legal formalities or as a means of singling out economic exchanges in the way Fuller suggests. Consideration is not a proxy for, or evidence of, anything else, including an intention to be contractually bound. To the contrary, the doctrine’s first and most indispensable purpose is simply to establish the mutually related acts that consitute a kind of bilateral relation that, qualifying as a transfer of ownership, is enforceable in accordance with the expectation standard. At the same time, this conception of consideration’s rationale shows how consideration furnishes an external test of enforceability. The fact that a promisor can reasonably recognize that she has enlisted the promisee’s own participation as a co-requisite of her own provides a test for enforceability that is external – because determined in accordance with a reasonable 71 Wiseman v Cole (1585), 2 Co Rep 15a at 15b, Co Litt 47, cited in Ibbetson, Historical, supra note 2 at 141.

274 UNIVERSITY OF TORONTO LAW JOURNAL interpretation of the parties’ interaction and not their private, inward intentions or judgements – and that is also obviously of the right sort – because contractual obligation is owed to another who has independent standing to assert a corresponding right. This analysis is reinforced by the fact that the requested consideration must be either a crystallized promise or a completed act. Where the requested response from the promisee falls short of these, no contractual obligation arises. In this way, the participation requested by the promisor must be definite, discrete, and finalized – exactly the same sort of decision taken by the promisor herself. Moreover, this test of enforceability is fully compatible with respect for the parties’ voluntariness and their character as conscientious moral agents. For an action to be voluntary, it must, I shall suppose, aim at some good which the agent seeks to obtain. Consideration imports a particular kind of good; namely, one that is aimed at as part of a bilateral relation between the parties. In this way, it functions as a sort of good that allows the law to impute the voluntary undertaking of a legal obligation. For liability in private law respects the basic premise that, in the absence of a clear and unambiguous expression of intent to the contrary, no one is presumed to intend to give away his or her own for nothing or to assume an onerous obligation without compensation. But where there is consideration, the promisor requests something else that comes in the place of her own.72 Her externally manifested reason for promising is to obtain for herself an object or service that counts just as something else for the something (quid pro quo) she promises away. Moreover, attributing contractual consequences to these voluntary assumptions of commitment respects the parties as conscientious moral agents by taking seriously their shared moral understanding of their interaction. Each has, through his or her expression of commitment, engaged the return commitment of the other. That each party should recognize how his or her conduct reasonably and unambiguously appears to the other is also part of that party’s moral, and not merely legal, responsibility, given that he or she has chosen to interact with the other in circumstances where both present themselves as having independent and separate interests. While the doctrine of consideration is not rooted in or reflective of the morality of promising, it does not conflict with or undermine this morality. Divergence does not entail, here, tension or incompatibility.73 I conclude that the requirements of consideration ensure that neither party can reasonably complain if her words or conduct are taken to 72 This formulation is from Jeffrey Gilbert’s unpublished 1702 work, Of Contracts, supra note 64. 73 For a different view, see Seana Shiffrin, ‘The Divergence of Contract and Promise’ (2007) 120 Harv L Rev 708.

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represent the undertaking of a legal contractual obligation toward the other. While these requirements may, in fact, conduce to deliberation and purposefulness on the part of a promisor deciding whether and how to contract, the reasonableness of consideration as a marker of enforceability does not depend on this. These further aspects may, as a matter of fact, be encouraged by the requirements of consideration, but they are not intrinsic to the doctrine’s role in furnishing a simple and external test of contractual enforceability. I should add that the proposed account of consideration certainly does not preclude the law, for the very purposes stated by Fuller, from imposing additional requirements of form that limit or specify what will be recognized as an enforceable agreement. But that is a further and distinct step that goes beyond, and so does not explain, consideration. C THE CONTRAST WITH RELIANCE

There can be liability for breach of a promise that induces actual reliance on the part of the promisee, even though the reliance is not requested by the promisor or done by the promisee as quid pro quo for the promise. What constitutes reliance and which remedies are available by way of enforcement are matters over which there is currently some disagreement among scholars and even courts.74 My aim here is limited to identifying a conception of reliance-based liability that is compatible with the doctrine of consideration and then to compare their respective characteristics. The first and the most important question is the meaning of ‘reliance.’ All agree that reliance must involve something more than the promisee’s merely trusting in the promisor’s word and expecting or hoping for performance. If reliance were only this, it would suppose the existence of a gratuitous promise and nothing more. This is also the case even if the promisee’s trust consists in (unrequested, though induced) imagining or planning some advantageous or valuable opportunity that depends on the promisor’s following through. As long as the failure to perform does not make the promisee worse off in comparison to his position before relying, reliance would suppose a scenario that is indistinguishable from breach of a gratuitous promise. If reliance-based liability and consideration are to stand together, reliance must involve something more. There is, in fact, wide agreement that reliance must consist in the promisee’s doing or omitting to do something that changes his pre-reliance 74 An instructive overview of this issue and of the different approaches is Chen-Wishart, Contract Law, supra note 28 at 162 –79. I have examined this basis of liability in Peter Benson, ‘The Basis for Excluding Liability for Pure Economic Loss in Tort Law’ in David G Owen, ed, The Philosophical Foundations of Tort Law (New York: Oxford University Press, 1995) at 450–4.

276 UNIVERSITY OF TORONTO LAW JOURNAL position to his detriment.75 More specifically, in reliance upon the promise, the promisee must either decide not to pursue an advantageous opportunity or not to incur an expense which, independently of the promise, he, respectively, could have obtained or would not have spent. Reliance-based liability arises from the fact that the breach of promise leaves the promisee worse off as compared with the pre-reliance position in which he would have pursued the opportunity or not made the expenditure. I have suggested that unless reliance involves this form of change of position, a doctrine of reliance or promissory estoppel must directly collide with the requirement of consideration. This is true as long as we suppose that reliance is not requested as quid pro quo but is merely, though foreseeably, induced. To explain, if the promisee’s reliance is requested as quid pro quo for the promise and it involves a detriment to the promisee or a benefit to the promisor within the meaning of consideration, the reliance can be viewed as one side of a bilateral relation that transfers ownership. However, where the reliance is not so requested, it represents, at most, an effect of the promise upon the promisee’s thoughts and conduct. In light of the analysis of the previous sections, the reliance cannot, therefore, reasonably be construed as an act through which the promisee acquires anything from the promisor. If reliance is to bring into play something that rightfully belongs to the promisee to the exclusion of the promisor, it must refer to an interest that already exists independently of and prior to his reliance. This is the only way reliance-based liability can qualify as a form of compensatory justice that does not directly contradict the requirement of consideration. In contrast with consideration-based contractual liability, promissory estoppel does not, therefore, protect an interest that is acquired through reliance but rather one that pre-exists reliance and is endangered by the breach of promise. Viewing the promisee’s pre-reliance position as involving a protected interest might be challenged on the ground that, as a matter of fact, the promisee gave it up (for example, by foregoing the alternative opportunity ) and so did not have anything to be injured at the time the promisor failed to perform. Consequently, the objection goes, damages for such breach cannot qualify as compensation. But this is not so because it cannot be a reasonable interpretation of the parties’ interaction. Precisely because of her inducement to rely, the promisor cannot treat the promisee’s reliance as his own independent decision that has nothing to do with her. To the contrary, she must take responsibility for the fact that he gave up his initial position and for resulting foreseeable 75 The classic scholarly statement of this view is Warren A Seavey, ‘Reliance upon Gratuitous Promises or Other Conduct’ (1951) 64 Harv L Rev 913.

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loss. It does not lie in her mouth to claim that he gave up, and so did not have, a valuable interest that she could detrimentally affect by her breach, when the reason he gave it up and did not physically have it was her promise and his reasonable reliance on it.76 But note that what the estoppel establishes is only that this pre-reliance position must be taken by the promisor as a protected base-line in light of her interaction with the promisee and for the purpose of specifying her liability vis-a`-vis him. This conception of reliance can stand consistently with consideration. It is characterized by the following features and legal effects. In the absence of change of position that worsens the promisee’s position as measured against his pre-reliance base-line, there is no liability.77 This means that breach of a promise (without consideration) is not a legal wrong unless and to the extent that it causes such loss. Where, for example, the promisor alerts the promisee of a change of mind in time for the latter to resume his pre-reliance position without loss, the failure to perform is not at all a legal wrong or injury. For the same reason, where the promisee relies, but in so doing ends up in a better position than his pre-reliance situation even if the promisor reneges, the failure to perform is not actionable. In these circumstances, the promisor may resile from her promise without injustice to the promisee. In sharp contrast with a promise supported by consideration, here, the failure to keep one’s promise is not wrongful in itself but rather wrongful, if at all, as breaching a duty of care not to make the promisee worse off in comparison to his pre-reliance position. This pre-reliance position sets the upper limit of liability and damage. It follows that the quantum of damages awarded will be determined by what is necessary to ensure that he is not made worse off relative to this pre-reliance base-line. Depending upon the particular facts, such damages may of course be set by the value of the promise. But this need not be the case. Thus, in contrast with promises for consideration, there is here no intrinsic connection between reliance-based liability and expectation remedies. This analysis of reliance brings out an important point that also applies to our understanding of consideration itself. I have suggested that liability in promissory estoppel presupposes a different protected interest embedded in a different relation than the protected interest that vests solely through the promise-for-consideration relation. Now, it is frequently suggested that reliance and consideration are but different ways in which promisors can manifest an intention to be contractually 76 For a judicial statement, see Imperator Realty Co, Inc v Tull (1920) 127 NE 263, Cardozo, CJ. 77 For further discussion of these points with helpful examples, see Andrew Burrows, ‘Contract, Tort, and Restitution: A Satisfactory Division or Not?’ (1983) 99 Law Q Rev 217 at 239– 44.

278 UNIVERSITY OF TORONTO LAW JOURNAL bound.78 And the use of a legal formality is understood as still another mode of doing so. This view supposes that behind or underlying the different prerequisites of liability is a single idea of contractual intention and that these are but different ways in which the law can discern evidence of its existence. The whole thrust of my argument is that this view is seriously mistaken. Each of these bases of liability entails a definite and distinct kind of legal relation and these relations are constituted by different sorts of acts of the parties reasonably interpreted. There is no intention apart from that which is already embodied in these acts which alone are the juridically relevant and real operative facts. This is no less true of intention in voluntary transactions such as gift and contract than it is of the intention – animus possidendi – operative in first acquisition. Intention – like duty or liability – is not anything in the abstract but only what is specified through the qualitatively distinct categories of juridical relations between the parties. Thus, it is not only unnecessary but also misleading to take these relations as evidence of a unitary underlying intention to contract or, even more broadly, to form legal relations. This is particularly so when dealing with the doctrine of consideration, which establishes a form and content of relation that is irreducibly different from those entailed by either estoppel or a seal.

78 This seems to be, for example, Barnett’s view; see Barnett, supra note 13 at 186 –7. For a recent detailed critical discussion of this approach, see Chen-Wishart, ‘Consideration,’ supra note 4.

Alan Brudner*

PRIVATE LAW AND KANTIAN RIGHT†

In The Idea of Private Law, Ernest Weinrib sought to rescue private law’s autonomy from functionalism’s reduction of private law to an instrument of the public interest. The twin ideas he employed for this purpose were corrective justice and Kantian Right. According to Weinrib, corrective justice provides private law’s unifying structure, while Kantian Right supplies its normative content. In this essay, I argue that Kantian Right cannot be the normative complement to the correctivejustice form of private law because, with the exception of trespass to the person, private law vanishes in Kantian Right. I argue that there is no possibility for an autonomous private law in Kantian Right and that there is, indeed, a logical progression from Kantian Right to the very functionalism that Weinrib opposes. Keywords: Ernest Weinrib/corrective justice/Kantian Right/private law/ functionalism I

The Idea of Private Law

In the book for which he is rightly celebrated, Ernest Weinrib sought to rescue the concept of private law from its erasure in American legal scholarship. As Weinrib observed in The Idea of Private Law,1 the perspective on the law of interpersonal transactions dominant in American law schools for nearly a century has been thoroughly functionalist or goal-oriented. From the realism of the 1930s to the economic analysis of today, that perspective views private law through a public-law lens, demanding that rules governing liability for losses suffered through accidents and contractual breaches rationally serve the public welfare. More specifically, the dominant approach insists that liability rules serve such goals as the deterrence of excessive risk taking, the compensation of victims, the wide distribution of losses caused by accidents, the efficient allocation of resources, or some optimal mix of all such socially desirable ends. Any claim that the law of interpersonal transactions can be understood otherwise than as furthering public ends or that a law so understood can possess normative stature is met with incomprehension or derision.2

* Albert Abel Professor in the Faculty of Law, Professor in the Department of Political Science, University of Toronto. † Thanks to Arthur Ripstein for helpful comments. 1 Ernest J Weinrib, The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995)[Weinrib, Idea]. 2 Felix Cohen,‘Transcendental Nonsense and the Functional Approach’ (1935) 35 Colum L Rev 809. (2011), 61

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DOI: 10.3138/utlj.61.2.279

280 UNIVERSITY OF TORONTO LAW JOURNAL Stated generally, Weinrib’s objection to the functionalist understanding of private law was that it fails to understand private law as private. For this approach, he argued, a goal is justified by some non-legal discipline as worthy of public pursuit, and then private law is, like all law, judged as to whether it effectively furthers the goal. Thus, Weinrib remonstrated, ‘all law is public’; ‘no distinction exists between private and public law.’3 Functionalism, he wrote, ‘denies that private law is private in any significant sense. At most private law is public law in disguise.’4 The dominant approach ‘precludes the hiving off of private law from the collective pursuit of public goals.’5 In short, the standard view denies the autonomy of private law.6 Against the functionalist understanding of private law, Weinrib urged a radically different approach, to which he attached a name coined by others to designate false objectivity: legal formalism. In Weinrib’s version thereof, legal formalism views the law of interpersonal transactions as ordered, not to public goals, but to a justificatory logic immanent in the direct relationship between the parties to a lawsuit. For Weinrib, the directness of the litigating parties’ connection is the ‘master feature’ of private law, the one constituting private law’s specific difference from other forms of legal ordering and supporting the autonomy of its logic from that of instrumental rationality.7 The parties are connected directly in that their nexus is established solely through their transaction and independently of any joint relation to a third entity – to a political unit, for example. What is the nature of the link between plaintiff and defendant lying at the heart of private law? It is, Weinrib argued, the ‘sheer correlativity’ between the defendant’s doing harm to the plaintiff and the plaintiff’s suffering harm from the defendant.8 According to Weinrib, one understands the law of interpersonal transactions only by grasping everything about it – doctrine, procedure, institutional frame, discourse – as expressing this correlativity and cohering around it; for only thus can one preserve in one’s account of private law the features without which private law would vanish as a distinctive kind. Those features are (a) the successful plaintiff’s right to recover (b) from this particular defendant and from no other (c) the precise sum that the defendant is (d) duty-bound to pay the plaintiff and no other. The hallmark of functionalist understandings is that they sever correlativity by proposing justifications of liability 3 4 5 6 7 8

Weinrib, Idea, supra note 1 at 7. Ibid at 7. Ibid at 8. Ibid at 3, 6. Ibid at 10. Ibid at 81

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(compensation, deterrence) applying to one party but not to the other – justifications whose logical thrust makes the competencies of bipolar adjudication look like irrational fetters on ambitious social policies. Thus, the compensation rationale explains why the plaintiff should recover but not why the defendant should pay nor why recovery should depend on fault, while the deterrence rationale explains why the defendant should pay but not why he should pay what the plaintiff lost nor why his liability should depend on the chance materialization of harm. In decomposing correlativity, Weinrib argued, functionalist understandings exhibit the occupational vice of the justificatory enterprise: incoherence.9 For Weinrib, to understand the law of interpersonal transactions as anchored in the correlative structure of doing and suffering is to understand it as manifesting the form of corrective justice canonically described by Aristotle. Consisting in a mathematical operation restoring the mean between excess and deficiency in respect of holdings resulting from transactions, corrective justice structures the private law relationship as a bipolar one between parties joined together as the active and passive termini of a harm. As a consequence, a corrective justice account of private law is uniquely able to comprehend its object as a unified kind, distinct in character from legal regimes not hinging on the correlativity of doing and suffering. We see this capability in the way that correctivejustice theory understands ‘justice,’ ‘injustice,’ and ‘correction.’ The justice to which Aristotelian corrective justice refers is justice of a specific kind. It is justice in relation to another as distinct from inward rectitude of character, and it is that species of other-directed justice pertaining to transactions as distinct from distributions. Transactional justice holds two interacting parties to their equal status as owners of whatever quantities of things they held prior to their interaction;10 and this baseline equality functions as the mean between having too much and having too little relative to the other in the context of transactions. Though obscure, the relevant equality of the parties is evidently formal in that it abstracts from all differences pertaining to their individuality – differences in holdings, social status, virtue, and so forth. The parties are equal holders of what they hold; that is all we can say about their equality at this point. If other-directed justice consists in the parties’ equality, then a transactional injustice occurs when someone upsets equality by gaining a ‘quantity’ at another’s expense.11 Acquiring an unjust gain at another’s expense is the idea that explains the unbroken pairing of plaintiff and defendant from transaction through lawsuit to remedy. Correlativity obtains, not 9 Ibid at 32 –46, 72–5, 120 –2. 10 Weinrib, Idea, supra note 1 at 63. 11 Ibid at 62.

282 UNIVERSITY OF TORONTO LAW JOURNAL only between the doing and suffering of wrong, but also between what the defendant has gained from the wrongful transaction and what the plaintiff has lost, much as the upward movement of one scale of a balance is correlative to the downward movement of the other. Remedial or corrective justice is correspondingly bipolar. It consists in restoring equality by transferring from wrongdoer to victim a quantity equal to that representing the wrongdoer’s unjust gain, which is itself quantitatively equal to the victim’s unjust loss.12 In that it consists in restoring a base-line equality upset by a transaction, corrective justice is a form of legal ordering categorically distinct from, and irreducible to, that of distributive justice. No doubt distributive justice is also a kind of equality; but here, the equality is one of ratios rather than quantities, for distributive justice consists in allotting a benefit or burden among persons in proportion to their merit, according to some criterion thereof. The specific criterion embodies some conception of the public interest that is extrinsic to the form of proportional equality and that must therefore be imported from an extra-juridical political process, whose task is to decide authoritatively which collective purposes a distributive scheme will serve and how. This porosity to politics of distributive justice contrasts starkly, Weinrib argued, with the self-containment of corrective justice. Serving no collective end, corrective justice regards only the immediate transaction between doer and sufferer, demanding that both be restored to their base-line positions through a reverse transaction, but remaining indifferent to whether their holdings at those positions can be justified from a collective standpoint.13 So, whereas corrective justice presupposes two individuals related directly through a wrongful transaction, distributive justice envisages an indeterminate number of people related mediately through common participation in a distribution serving a public interest.14 Hence, the idea of corrective justice organizes private law in a way that both preserves its transactional nexus and vindicates its autonomy vis-a`-vis public law. Nevertheless, Weinrib’s vindication of the idea of private law was not yet complete. Corrective justice constitutes private law’s formal structure, but considered as a mathematical form, it lacks normative force. Yet, private law coerces people to rectify their unjust transactions in accordance with corrective justice, and this coercion must be justified, for law is a normative practice. For Weinrib, however, to elucidate the normative character of private law is not necessarily to engage in the normative enterprise of justifying a private-law regime. It can be the reticently positive endeavour to find the normative theory that goes with private law, 12 Ibid at 65. 13 Ibid at 210 –4. 14 Ibid at 71.

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setting aside the question of that theory’s cogency. Whether or not a private-law system is justifiable, Weinrib might say, it gives coherent expression to a certain substantive idea of justice, in terms of which it is therefore pellucidly intelligible. In the end, one might reject this idea and replace tort law (for example) with a scheme of social insurance coherently ordered to a collective good. Weinrib offers no argument against such a reform. However, to use private law for collective aims proposed by theories of justice alien to it is to commit the formalist sin of mixing kinds. It is to abandon corrective justice without rigorously accomplishing distributive justice. It followed that, in its search for normativity, corrective justice could not partner with just any substantive theory of justice that provided moral or pragmatic reasons for preserving private-law doctrines and institutions. The price of such promiscuity would be that, in depending on those external reasons, private law would again lose its autonomy as a self-regulating process. Instead, corrective justice had to find the normative complement intrinsic to it. We might say that, if law (as Weinrib famously put it) is like love, then corrective justice had to find its normative soulmate. It had to embrace a theory of substantive justice that uniquely filled the lacuna in its form, and whose longings for a suitable form of realization it could reciprocally fulfil. Enter Kant. As Weinrib explained it, the match between Aristotelian corrective justice and Kant’s philosophy of Right (henceforth, Kantian Right) was made in heaven, for it is a perfect interlocking of mutually complementary parts.15 Aristotle argued that corrective justice consists in restoring the parties to an antecedent equality, but he did not say in what respect the parties are to be considered equal. He also saw that corrective justice makes irrelevant all individuating traits of the parties, intimating that the parties’ equality is in respect of something transcending all such differences. However, he did not identify the transcendental point. Third, he saw that the parties under corrective justice are linked by correlativity; but, in understanding this relation as the factual doing and suffering of harm, he did not specify the appropriate legal conception of correlativity.16 All these voids are filled, according to Weinrib, by Kantian Right. The conception of equality uniquely appropriate to a form of justice prescinding from all differences between the parties is ‘the equality of free purposive beings under the Kantian concept of Right.’17 The transcendental point reached through abstraction from all differences is the Kantian noumenal self.18 The appropriate legal specification of correlativity is 15 16 17 18

Ibid Ibid Ibid Ibid

at at at at

80 –3. 114 –5. 58. 82.

284 UNIVERSITY OF TORONTO LAW JOURNAL the correlativity between the right of free beings to act purposively in the world and the obligation of free beings to respect that right in exercising theirs. Conversely, the form of remedial justice uniquely appropriate to one free agent’s infringement of another’s right is the bipolar one of corrective justice. As Weinrib put it, ‘Corrective justice is the justificatory structure that pertains to the immediate interaction of one free being with another. Its normative force derives from Kant’s concept of right as the governing idea for relationships between free beings.’19 Thus, corrective justice and Kantian Right are the ‘arch-concepts by which one must conceptualize the features of private law. . .’20 Corrective justice is private law’s unifying structure; ‘Kantian right supplies the moral standpoint immanent in its structure.’21 Everyone knows the point in the Anglican wedding ceremony at which the priest asks if there is anyone in the congregation who knows a reason why the radiant couple should not be joined in matrimony. If so, he says, that person should speak now or forever hold his peace. At the risk of being thought an unromantic spoiler, I must speak up. Kantian Right will be a terrible partner for corrective justice. He will lead her on. In the beginning, he will flatter her, dote on her, give her hope that he will foster and support her independent vitality. But in the end, he will humiliate her, destroy her independence, and forsake her for another. She could die of a broken heart. Weinrib’s argument for the mutual complementariness of corrective justice and Kantian Right leaves a gap. While it may be true that ‘corrective justice is the justificatory structure that pertains to the immediate interaction of one free being with another,’ it does not follow that Kantian Right lends normative force to corrective justice; for we do not yet know how Kantian Right will treat (or mistreat) that relation, whether it will sustain or immerse in public distributive justice a direct relation between right-bearing agents. That is to say, we do not yet know how Kantian Right will treat private law’s autonomy. In what follows, I argue that, with the exception of trespass to the person, private law vanishes in Kantian Right. I argue that there is no possibility for an autonomous private law in Kantian Right and that there is, indeed, a logical progression from Kantian Right to the very functionalism that Weinrib decries. Of course, I do not mean that there is no possibility in Kantian Right for a legal regime governing the interactions between one person and another; after all, even contemporary American products-liability law is such a regime. Rather, I mean that (with the exception mentioned) there is no sense in which Kantian Right 19 Ibid at 19. 20 Ibid. 21 Ibid.

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can regard the law of transactions as private – as a regime categorically distinct from, and irreducible to, the law directed toward a public interest. Nor do I leap from this to the conclusion that an autonomous private law is impossible, period; on the contrary, I argue elsewhere that such a regime is indeed possible under Hegelian Right. My point is narrower. It is that Kantian Right cannot be the theory of justice belonging to private law, for it is, on the contrary, antagonistic to private law. Even if Weinrib’s descriptive phenomenology of private law can be indifferent to whether the phenomenon is logically stable, it cannot regard as private law’s own theory of right one for which private law is logically unstable. II

Kantian Right in the state of nature

In his Doctrine of Right, Kant divides rights into natural rights and positive or statutory rights. The latter, he says, proceed from the will of a legislator, whereas the former rest on a priori principles.22 However, Kant uses the term ‘natural right’ in two different senses. Sometimes, natural right refers broadly to the entire body of law, including public law, resting on a priori principles; and sometimes, it refers narrowly to the rights that free agents possess in a state of nature defined by the absence of public lawgiving, adjudication, and enforcement. Thus, natural right in the broad sense encompasses two divisions: state-of-nature rights and public right.23 When Kant uses the term ‘natural right’ to refer to rights in a state of nature, he identifies natural right with private right.24 Equating private right with right in a state of nature endows private right with just the hard-edged categorical autonomy a normative helpmate would recognize and support. This is so because Kant’s state of nature is a mental abstraction from the rule of a public authority – a condition in which individual agents are related only immediately through their actions’ impinging on the free action of others. Absent a public framework for lawgiving and adjudication, right is necessarily the private right of each monadic agent with respect to others. For Kant, accordingly, private right means right in the state of nature because a distinct category of private right is conceivable only as a right that would hold in a condition logically prior to one of public right.

22 Immanuel Kant, The Metaphysics of Morals, Part I, translated by Mary Gregor (Cambridge: Cambridge University Press, 1991) at 6:237 [Kant, Metaphysics]. Page citations are to volume 6 of the Prussian Academy edition of Kant’s works, upon which Gregor’s translation is based. These page numbers appear in the margin of Gregor’s translation. 23 Ibid at 6:242. 24 Ibid at 6:242

286 UNIVERSITY OF TORONTO LAW JOURNAL Kant defines rights (in the broad sense) as moral capacities for putting others under obligations, and he distinguishes between two sorts of these capacities.25 One he calls ‘innate right;’ the other, ‘acquired right.’ Innate right is ‘the Right of humanity in our own person,’26 the right that every human being has, just by virtue of the end-status involved in its free will, to be independent of the constraint of another person’s choice.27 So, every human being has an inborn right against being forcibly held, pushed, pulled, hit, abducted, or killed by another human being unless such force is required to resist an action opposed to innate right, in which case the force is authorized by innate right.28 Logically entailed by innate right are several further propositions. One is the equal dignity of human beings and, therefore, the duty and the right of each to be ‘his own master.’29 The duty to be one’s own master, or of ‘rightful honour,’ implies an injunction against treating oneself as a means for others without also being an end for them.30 Juridically, this means that no one can bind himself to a coercive, non-reciprocal obligation. The right to be one’s own master implies a right against ‘being bound by others to more than one can in turn bind them.’31 Thus, no one can unilaterally impose a coercive obligation on another, although, in the case of reciprocal obligations valid a priori (i.e., those correlative to innate right), implied consent suffices to negate imposition. Also implied by innate right is a permission to act in the world as one chooses up to a limit – defined by a law of general application – consistent with the equal permission of everyone else. In Kant’s well-known words, ‘Any action is right if it can co-exist with everyone’s freedom in accordance with a universal law. . .’32 Kant calls this principle the axiom of right. It follows from this axiom that to restrain someone in the lawful exercise of his freedom is to act in a way inconsistent with equal freedom and thus to do wrong.33 Crucially, innate right requires no action by the person, for it necessarily pertains to beings with a capacity freely to choose their ends; hence, it is established ‘by nature’ or a priori.34 Because they are valid a priori, 25 26 27 28 29

30 31 32 33 34

Ibid at 6:237. Ibid at 6:236. Ibid at 6:237. Ibid at 6:231. Ibid at 6:238. For an exposition of Kant’s legal philosophy that puts the right to be one’s own master at the centre, see Arthur Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy (Cambridge, MA: Harvard University Press, 2009). Kant, Metaphysics, supra note 22 at 6:236. Ibid at 6:237. Ibid at 6:230. Ibid at 6:231. Ibid at 6:237.

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the negative obligations (not to hit, hold, push, etc.) correlative to innate right have the imprimatur of an implicit omnilateral consent even prior to a civil condition. Already in the state of nature, these obligations are consistent with the innate right of being one’s own master; and so they will have no need of confirmation by a citizen legislature, once such a body comes into existence. By a citizen legislature I mean the law-making authority to which Kant refers in section 46 of the Doctrine of Right. That authority belongs, he says, to the ‘concurring and united will’ of those qualified by their civil independence to consent to the statutory laws that will govern them.35 Innate right will require no approval from such a body because, as a universal right of humanity entailed by free will, it already has, a priori, all the approval it needs. The same cannot be said of acquired rights, however. Acquired right is the right to have as mine things that are distinct from me. To have a right to call mine something that is not me, it must be the case that I have a right, not only to prevent another from taking what I empirically possess (for this is just the innate right that I have in me), but also to recover the thing from someone who has already wrested it from my possession and to prevent him from using the thing even though my physical possession has been interrupted. That is to say, ownership of things distinct from me implies a right to an ‘intelligible possession’ that is distinct from empirical possession. Such a right is not, however, analytically contained in the idea of innate right; for I could be master of my body even were I were master of nothing else. Nevertheless, the right to own things that are not me is synthetically connected to innate right by what Kant calls a ‘postulate of practical reason with regard to rights.’36 According to this postulate, I have a right to prevent another’s using something of which I was dispossessed because, were it wrongful to do this, I would have no right to the use (as distinct from the empirical possession) of things according to my free will, even though they are useful and I have the physical capacity to use them; hence, the range of my freedom would be curtailed short of what is required for equal freedom, and that is contrary to the axiom of right. Acquired rights to things distinct from me can be either originally or derivatively acquired. Acquisition is original if I acquire the thing solely

35 Ibid at 6:314. Henceforth, I use the terms ‘omnilateral will’ and ‘general will’ interchangeably to refer to the will that legislates, a priori, the body of law comprising natural right in the broad sense. The omnilateral (general) will is represented in a civil condition by the united will of a multitude that has formed itself into a state under laws of right. Laws of right are either necessary laws of a priori right or statutory laws consistent with a priori right; see ibid at 6:313. 36 Kant, Metaphysics, supra note 22 at 6:246.

288 UNIVERSITY OF TORONTO LAW JOURNAL by my own action; derivative, if I acquire a right to the thing through another’s transferring the right to me by contract (in which Kant includes gift) or by law.37 The distinguishing feature of acquired rights is that they require some action by an agent; hence, they are contingent on an agent’s choice. For example, a right to the intelligible possession of a piece of land requires a choice to occupy hitherto unoccupied space and to signal one’s intention to control it to the exclusion of others; a contractual right to compel another’s choice depends on notionally simultaneous acts of offer and acceptance. Because they depend on a contingent choice, ownership rights over the specific objects one acquires in a state of nature lack the sanction of an implicit or a priori consent by everyone who would be bound by them.38 Because they depend on a unilateral choice, they also lack, prior to the civil condition, the actual collective authorization of those whom specific property claims would bind. Here, alas, we come upon a sign full of foreboding for the marriage between private law and Kantian Right. For Kant, the fact that acquired rights depend on an action means that, in a state of nature, acquired rights to specific objects necessarily derive from a contingent and unilateral choice.39 There is for Kant no pre-civil validation of right-claims over particular things by those whom the claims purport to exclude. In Kant’s state of nature, rights are either knowable a priori and approved by an

37 Ibid at 6:260. 38 To be precise, rights to the intelligible possession of specific objects lack a priori omnilateral consent. By contrast, my right empirically to possess a particular piece of land and to prevent others from ejecting me rests, Kant says, on an ‘innate possession in common of the surface of the earth and on a general will corresponding a priori to it, which permits private possession on it . . .’; ibid at 6:250. This implicit omnilateral consent to empirical possession must be assumed for the sake of innate right, given the circumstance that Earth is a sphere; ibid at 6:262. My right to bodily integrity entails a right to be where I am even though this precludes others from being there. If Earth were an unbounded plane, no one’s possession of land would subtract from the total, for there would be no total to subtract from; therefore, no a priori consent to someone’s physically occupying a place would have to be assumed. Given, however, that Earth is spherical, possession of any area bears implications for everyone else; hence, the a priori consent of all who originally possess the Earth in common must be assumed as a deduction from innate right. Observe, however, that what is legitimated in the state of nature by the implied consent of possessors in common is only my empirical possession of something in particular, not my right to call it mine even when I am not possessing it. In the state of nature, according to Kant, I have an omnilateral authorization to own abstractly and an omnilateral authorization to possess something in particular, but no omnilateral authorization to own the particular object I chose to possess; that can come only in a civil condition; see ibid at 6:267. 39 Ibid at 6:259, 263.

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implicit omnilateral consent, or they are contingent on a unilateral choice; there is nothing in between.40 The significance of this, of course, is that a unilateral choice cannot bind others consistently with their innate right of equality and selfmastery. As Kant puts it, ‘Now a unilateral will cannot serve as a coercive law for everyone with regard to possession that is external and therefore contingent, since that would infringe upon freedom according to universal laws.’41 Since, however, Kant thinks that all natural ( private) rights to acquired things involve unilaterally imposed obligations, he has to think that all such rights come with a question mark. We will see that this is the case. To call them ‘natural rights,’ it turns out, is to flatter them. Their naturalness is no warrant for their validity. One might think that natural rights to things acquired through contract are different from rights to things acquired originally because, in the former case, one’s right is acquired with the consent of the one bound by it, whose right to dispose of the thing is reciprocally recognized by the one who acquires it. However, Kant denies that contract confers a stronger property than original acquisition. In his view, rights acquired through a transfer likewise derive from a unilateral choice because a bilateral will is still particular in relation to an omnilateral will.42 No doubt, the contractual right itself is a right only with respect to a particular, consenting person, not purporting to bind the world. But, argues Kant, the in personam right is not a right to the thing promised; it is, rather, a right to compel the will or choice of the promisor.43 The right to the thing acquired through the promisor’s accepted offer is an in rem right vis-a`-vis everyone; and the contracting parties cannot by themselves confer such a right compatibly with the innate right of equality and self-mastery. In contrast to innate right, accordingly, all rights to external

40 For Hegel, original acquisition is validated (though still subject to the good) in a prejudicial condition by the social institution of contract. I have no valid property in anything I acquired originally until I freely relinquish it to another (all others having passed on the opportunity to acquire it) in return for recognition of my right to alienate it for equal value. Recognition is necessitated as that without which claims of objectively valid end-status would remain self-contradictorily subjective. Since my final property is not in the thing (which I surrender) but in its value, property involves no unilateral claim to exclude others from the thing. Prior to exchange, I have an imperfect property based on original possession and use, which confer relative rights ( possession stronger than no possession, use stronger than possession) in anticipation of their being validated through contract. See GWF Hegel, Hegel’s Philosophy of Right, translated by TM Knox (Oxford: Oxford University Press, 1967) at paras 71–3, 77. 41 See also Kant, Metaphysics, supra note 22 at 6:263. 42 Ibid at 6:263, 274. 43 Ibid at 6:274.

290 UNIVERSITY OF TORONTO LAW JOURNAL things acquired in the state of nature lack the imprimatur of an omnilateral will. Because natural or private rights to acquired things lack the sanction of an omnilateral will, they are, according to Kant, ‘only provisional.’44 By ‘provisional,’ Kant cannot mean unrealized for want of a coercive public authority, because innate right in the state of nature is also unrealized for want of such an authority, and yet Kant does not regard it as provisional; only acquired rights are burdened with this qualifier. Nor can ‘provisional’ mean in need of further determination by a public authority as to, say, what constitutes ‘control’ or when something is a ‘fixture’ or an ‘accession;’ for innate right likewise requires specification by positive law before it can determine cases (when is an attack sufficiently ‘imminent’ to justify pre-emptive force? from whose viewpoint is ‘necessary force’ determined?). Perhaps, provisional means ‘defeasible by laws promoting a collective end.’ But this is too imprecise; for, inasmuch as Kant always contrasts ‘provisional’ with ‘conclusive’ (so provisional rights are inconclusive), he must mean by ‘provisional’ something more disparaging than at least one sense of defeasible. A defeasible right can be an objectively valid claim to another’s forbearance – one that exerts continuing force even though defeated in a particular case. In constitutional law, a defeated right’s residual force manifests itself in a requirement that the right be impaired only to the extent necessary to satisfy the defeating reason. Let me label that legal phenomenon a defeasible right. So, by a defeasible right I mean an objectively valid claim to have put others under an obligation – one that, while not holding in all cases, exerts continuing force when overridden by a collective end external to the right’s validity conditions. Such an end justifiably infringes rather than defines the right. A provisional right is different from a defeasible right so understood. Because it is unilaterally asserted, a provisional right is one whose status as a valid claim is unsettled, tentative, ‘up in the air,’ and vulnerable to being shot down once all who would be bound by the right have considered whether they could be bound by it consistently with their right of selfmastery.45 Until its status is settled, a provisional right to an acquired object holds in the meantime, but only in a comparative sense (it is stronger than a dispossessor’s claim); for it might be vetoed. If the provisional right is indeed vetoed, then the question hanging over it has finally been answered. It is not a valid claim after all. So, it has been not so much overridden as disconfirmed, rejected – spurned, we might say. This is another ominous sign for the marriage Weinrib seeks to arrange between Kantian Right and private law; for Kant, though he directs long gazes at private 44 Ibid at 6:264. 45 Ibid at 6:312.

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law, evidently thinks of her as Ms Now rather than Ms Right. But let us examine more closely what Kant means by ascribing to acquired rights a provisional character. To say that private rights to acquired things are provisional is to say something double-sided about the validity they have and about the validity they lack. The validity they have originates in the state of nature, and that validity is but a relative one. Claims to things rightfully acquired in the state of nature are only stronger than the claims of dispossessors; they are not objectively valid because they are, as yet, only subjectively asserted. We will presently see what makes claims stronger or weaker than rivals. But rights to external objects unilaterally asserted on the basis of first possession or voluntary exchange have relative force by virtue of the postulate of practical reason regarding rights, according to which, for the sake of freedom, it must be possible to have external objects as mine in whatever condition, natural or civil, I am living.46 To see what private rights to acquired things lack, we have to distinguish between property as a formal concept and property as a concept with a specific distributional content. Formally, property is just the idea of having anything as mine such that others wrong me by using it without my permission even though I do not physically possess it. Whatever I own, that is what it means to own it. Distributively, property refers to what I own and to my justification for saying that I own it. Along this dimension, property denotes a right, based on some justificatory argument, to exclude others from using something in particular – Blackacre, let us say. In the state of nature, the argument runs as follows: I own Blackacre because I was the first to occupy it and surround it with a fence or because I acquired it through a voluntary exchange from someone who could trace his title to a first possessor or to someone who had been in prolonged possession.47 Kant’s view is that the private right to acquired things is defective both formally and distributively. Formally speaking, property is self-contradictory in the state of nature because, on the one hand, the postulate of practical reason regarding rights requires that ownership be possible; but on the other hand, absent a public legislative and executive authority, it is not possible. This is so because of innate right’s injunction against unilateral obligations by which one would become servile to another’s freedom. Because no one can expect or be assured that others will respect a fence he or she has unilaterally erected, no one is obliged to respect the fences of others. Thus, no one can wrong another person by the unauthorized use of anything that person has acquired consistently with the freedom of others. The cure for this problem is a public 46 Ibid at 6:264. 47 Ibid at 6:292 – 3.

292 UNIVERSITY OF TORONTO LAW JOURNAL legislature that can put everyone under a reciprocal obligation to respect others’ fences and an executive that can enforce the obligation. Thus, only in a civil condition is it formally possible to own anything.48 However, Kant also contends that, quite apart from the problem with owning in a natural state, there is a further problem with owning the particular things one has acquired there; and this is the defect to which the qualifier ‘provisional’ refers. A civil condition makes ownership possible, but it does not suffice to legitimate the particular fences erected in a state of nature. After all, those fences were put up unilaterally, and, unlike the right to own simply, there is nothing necessary about them. They reflect arbitrary choices. So, by the innate right against imposed obligations, things acquired by first possession or bilateral exchange are not conclusively one’s own until they are publicly ratified as such within a civil condition. Here, in other words, the problem is an absence, not only of public authority, but also of omnilateral confirmation for one’s ownership of the particular objects one has chosen to possess. Because one cannot bind others by a contingent and unilateral appropriation, one’s right to the particular things one has acquired lacks conclusive force until the united will of those sought to be bound confirms it as possessing such force; and the united will may demur.49 This is the sense in which rights to things appropriated unilaterally and contingently are provisional. They are vulnerable to disconfirmation.50 So, if a publicly minded citizen legislature redistributes an object rightfully acquired through first possession or voluntary exchange, it has not justifiably infringed a conclusive right; it has disconfirmed a provisional right. Inasmuch as there has been no validation for unilateral right-claims prior to public law, there is nothing here that could be infringed. True, right-claims to particular objects acquired in the state of nature carry presumptive force to the extent that the objects were acquired consistently with the possibility of owning anything and so compatibly with the idea of a civil condition (i.e., were not snatched from a prior possessor); for were they not civilly enforceable unless disconfirmed, claims based on actions consistent with ownership would be no stronger than 48 Ibid at 6:256, 263. 49 ‘But the law that is to determine for each what land is mine or yours will be in accordance with the axiom of outer freedom only if it proceeds from a will that is united originally and a priori . . . Hence it proceeds only from a will in the civil condition (lex iustitiae distributivae), which alone determines what is right, what is rightful, and what is laid down as right’; ibid at 6:267. 50 Kant leaves no doubt as to what he means by ‘provisional’ in explaining the doctrine of title by prolonged possession. Without such a rule, he says, ‘no acquisition at all would be conclusive (guaranteed); all acquisition would be only provisional (up to the present) . . .’; ibid at 6:292. So ‘provisional’ means holding for now but always vulnerable to the chance of being ousted in the future.

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the claims of dispossessors, and so there could be no natural right to own in the formal sense for the civil condition to perfect.51 Thus, only its consistency with formal ownership favours a private right to a particular object in a contest with the claim of a dispossessor.52 Neither the first possessor nor the dispossessor has a conclusive right of intelligible possession; but the first possessor has a better claim than the dispossessor because his claim can be confirmed by the united will of all, whereas the dispossessor’s cannot. So, the possibility of its being confirmed omnilaterally gives a private right relative force against a wrongdoer and presumptive force for a citizen legislature and a court. Still, presumptive force is not ‘defeasible’ force as defined above. There having been no validation of right-claims to external things prior to public law, nothing of any firmness exists yet. So the presumption looks forward to a possible validation rather than backward to an actual one.53 The only advantage a private right has over a wrongdoer’s claim is that, owing to its compatibility with owning in general, it is eligible for confirmation by a citizen legislature. But though eligible for confirmation, a right to a particular object rightfully acquired in the state of nature remains suspended in doubt, because not before the unilateral claim to a contingently chosen object is submitted for the publicly minded approval of those whom it purports to bind is the question of its validity settled; and we do not know what the citizen lawgiver will make of it.54 The legislature may always shift things around pursuant to a public interest, and it is only the right conferred by the united will of citizen legislators that innate right will allow to be conclusive. It follows that, for Kant, the rightful ownership of particular objects is the exclusive product of public law.55 Formally, to be sure, the concept of ownership grasped in private law is only confirmed or rendered coherent by a civil condition, whose public authority secures each in whatever he or she owns (not has). But the actual determination of who owns what is exclusively a determination of public law within a civil condition. In the end, therefore, private law’s criteria for determining ownership are irrelevant. Property is ultimately ‘allotted’ and ‘divided’ rather than acquired privately and ‘aggregated.’56 That is why Kant defines a ‘property right,’ not as an immediate relation between a person and a thing producing a fee simple, but as a usufructuary entitlement within a framework of

51 52 53 54 55 56

Ibid at 6:257. Ibid at 6:257, 267. Ibid at 6:257. Ibid at 6:263, 264. See note 49 supra. Ibid at 6:312, 323– 4.

294 UNIVERSITY OF TORONTO LAW JOURNAL common ownership, one mediated by ‘the sum of all the principles having to do with things being mine or yours.’57 So, despite the attention Kant initially lavishes on private law, despite his laying bare the metaphysics implicit in our everyday private-law notions of property and contractual transfer, in the end, he makes corrective justice a servant of public law. For if one’s property in a particular object is a product solely of public law, then there is no privately acquired right that corrective justice could autonomously vindicate. There is only the public division, which corrective justice must serve. I’ll return to this. To understand why acquired rights in the state of nature are provisional is to understand why innate right is not. Because it is sanctioned a priori by an omnilateral will, innate right cannot be disconfirmed by the omnilateral will’s law-making organ. There being nothing contingent or unilateral about innate right, there is no need for its empirical authorization by the omnilateral will’s lawgiving representative. Though unrealized in a state of nature, innate right is already objectively valid there; and so a public authority instituted for the purpose of securing rights has a duty to respect and enforce this state-of-nature right undiminished.58 Here, we can say that the united will of a people is constrained by a prior and independent private law of trespass to the person.59 It cannot violate that law without ceasing to be a united will. No doubt, innate right bears the imperfection afflicting all rights (both innate and acquired) in a state of nature. However, that imperfection stems, not from unilaterally imposed obligations, but from unilaterally (inwardly) felt commitments to an omnilateral obligation and from unilateral interpretations of that obligation. Because no one in a state of nature can have assurance of another’s rectitude and because innate right precludes unilateral restraint, each may use whatever pre-emptive force against another’s body he or she deems necessary. Moreover, in 57 Ibid at 6:261. Thus Kant writes, ‘A right to a thing is a right to the private use of a thing of which I am in (original or instituted) possession in common with all others’; ibid at 6:260 –1. Or again, ‘What is called a right to a thing is only that right someone has against a person who is in possession of it in common with all others (in a civil condition); ibid at 6:261. See also ibid at 6:323. 58 Ibid at 6:316. 59 It is even questionable whether innate right is a genuinely private right, for its conclusiveness in the state of nature rests on its a priori acceptability to all; hence it, too, is already mediated by an omnilateral will. For Hegel, the dignity of the person in ‘abstract right’ is not mediated by a universal transcending the particular person. It rests immediately on the particular free will of a monadic agent who, while impelled by an unconscious rational necessity into relationships embodying a common will, has yet to learn that its dignity is objective as a right to respect only within a relationship of mutual recognition; see Hegel, supra note 40 at paras 34, 75, 81, 82, 104. Nevertheless, innate right is a private right within Kant’s understanding of what a private right is.

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the absence of impartial adjudication, each is judge as to how the concepts of wrongful and justified force apply to particular cases. On either count, no one can ‘assault’ another in a state of nature, and so innate right in that condition is self-contradictory; it requires a disinterested judge and public guarantees of enforcement to perfect it. However, innate right is subject only to the imperfection inherent in the absence of a public determination and enforcement of an omnilateral obligation; it does not suffer from the problem of unilaterally imposed obligations, and so it enters the civil condition as a conclusive or valid right binding the citizen lawgiver. By contrast, acquired rights in the state of nature have the additional defect of deriving from unilaterally imposed obligations; and this defect poses a problem for acquired rights that is unique to them. Because no one can unilaterally impose a distribution on others consistently with their self-mastery, acquired rights to particular objects do not enter the civil condition as conclusive rights; nor do they become conclusive by virtue of the civil condition alone. A public legislature need not accept a specific fence just because it was erected conformably to private right, because the rightness of a contingent and unilateral appropriation depends on its being omnilaterally approved; only public law can determine conclusively who owns what.60 As Kant writes, for although each can acquire something external by taking control of it or by contract in accordance with its concepts of Right, this acquisition is still only provisional as long as it does not yet have the sanction of public law, since it is not determined by public (distributive) justice and secured by an authority putting this right into effect.’61

So, to say that private acquired rights are provisional is not to say that acquisition according to private law’s ‘concepts of Right’ confers a valid property that distributive justice might override. It is to say that acquisition according to private right grounds a right-claim with relative force, one that is eligible for validation by a citizen legislature but that might be invalidated. If invalidated, the hitherto provisional right is nullified. III

Acquired rights under a lawgiving will

Let us draw out more explicitly the implications of the provisional character of private rights to acquired things as these unfold in the civil condition. In this section, I consider the implications of ‘provisionality’ for 60 Kant, Metaphysics, supra note 22 at 6:256: ‘For a civil constitution is just the rightful condition, by which what belongs to each is only secured, but not actually settled and determined.’ 61 Ibid at 6:312.

296 UNIVERSITY OF TORONTO LAW JOURNAL property rights vis-a`-vis the legislature; in the next, I deal with its implications for private law’s autonomy in court. The self-contradictoriness of rights in a state of nature yields the ‘postulate of public right,’ according to which a multitude is obligated by innate right as well as by the postulate of practical reason regarding rights (that, for freedom’s sake, it must be possible to own external things) to quit the state of nature and submit to the powerful authority of the united will of all, ‘so that they may enjoy what is laid down as right.’62 By this hypothetical contract, a civil condition originates, ‘in which what is to be recognized as belonging to [the individual] is determined by law and is allotted to it by adequate power. . .’63 The ‘sum of the laws’ laid down by the united will of all in a civil condition Kant calls ‘public right,’ in which he includes laws protecting intelligible possession and laws governing derivative acquisition.64 The laws ordering derivative acquisition through bilateral exchanges Kant calls ‘commutative justice’; those ordering derivative acquisition through the united will of all he calls ‘distributive justice.’65 Observe that rightful ownership of something in particular is now identified with what is recognized as rightful under all the laws comprising public right; the state-of-nature right has been ousted. ‘Commutative justice,’ the scholastic term for corrective justice, is now considered part of public justice, from now on the exclusive object of Kant’s attentions. Moreover, Kant equates a rightful or civil condition with a ‘condition of distributive justice’ or with ‘a society subject to distributive justice’; for it is the united will of all that determines conclusively what belongs to whom.66 This means that the commutative justice ordering bilateral exchanges is subject to distributive justice, ‘which alone determines what is right, what is rightful, and what is laid down as right.’67 By itself, the phrase ‘subject to distributive justice’ might be ambiguous. It could mean ‘vulnerable to override by a separate principle of distributive justice but retaining independent force’; or it could mean ‘susceptible to being thoroughly moulded and transformed by distributive justice so 62 63 64 65 66 67

Ibid at 6:311. Ibid at 6:312. Ibid at 6:311. Ibid at 6:306. Ibid at 6:307, 306. Ibid at 6:267. Each member of this triad has a distinct meaning. ‘Right’ conduct is conduct consistent with the formal possibility of owning; ‘rightful’ conduct is conduct in accordance with the legal desiderata for acquiring specific objects; ‘what is laid down as right’ refers to the authoritative decision of a court in applying the relevant law to a particular case; ibid at 6:306. Thus, public right has supplanted private right with respect to every modality ( possibility, actuality, necessity) of ownership.

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as to leave nothing of independent force.’ But since Kant has told us that distributive justice alone determines what is right, the phrase admits of only one interpretation: the latter one. The most general implication of the provisional character of private acquired rights is that a citizen legislature in a civil condition has no, not even a defeasible, duty to respect the distribution of holdings brought about by first acquisition and bilateral exchange, even if that distribution resulted from actions consistent with the innate right to be free of another’s constraint and with the possibility of owning external things. Such holdings carry presumptive force because they can be consistent with an omnilateral willing; but it may turn out that they are actually inconsistent therewith (because, let us say, some are destitute or the citizen legislature decides that it will not countenance contracts for the sale of certain objects). In that case, the presumption is defeated, and the force of the private right, resting as it did on a unilateral choice, is then entirely spent. Nothing remains of it. The private right is not, as in Hegel’s system, ‘sublated’ – that is, cancelled insofar as it purports to hold absolutely but retained as informing a distinct paradigm of Right exerting continuing force even though overridden. It is simply cancelled. Because private rights to acquired things are conceived by Kant as unilaterally asserted, and because conclusive rights issue only from an omnilateral lawgiving, the private right vanishes once vetoed. The citizen lawgiver is not even minimally constrained by it.68 That I was the first to occupy a piece of land, that I did so with animus possidendi and by notorious acts of control, or that a contract was concluded by mutual consent for valid consideration attracts no further respect from a citizen lawgiver once it determines that the public interest requires reallocation or non-enforcement of the contract. Now, if the private right to rightfully acquired things vanishes in relation to the omnilateral will’s lawgiving authority, it follows that (innate right aside) what the agent is left with in its interaction with the citizen lawgiver is an interest, denuded of right, in secure possession and in the enforcement of contractual obligations. Of course, the agent has a right of intelligible possession against other agents in whatever is allotted to him because the civil condition fulfils the postulate of practical reason regarding rights, according to which it must be possible to possess intellectually and therefore to use external things. But in relation to the citizen lawgiver, the subject has only an interest in secure possession and the enforcement of obligations; it has no right thereto, for property is a product of all the laws respecting mine and thine issued by the citizen lawgiver itself. True, the lawgiver has a duty to protect these interests 68 Ibid at 6:316: [T]he will of the legislator . . . with regard to what is externally mine or yours is irreproachable . . .’

298 UNIVERSITY OF TORONTO LAW JOURNAL because it was just for the sake of secure possession and of enjoying what is one’s own that the civil condition was instituted. But the content of what is one’s own is now determined by public, not private, right. And in public right, one’s interest in secure possession and the enforcement of contracts counts (albeit heavily) only with other public interests. Since, moreover, private rights to acquired things have disappeared vis-a`-vis the citizen lawgiver, the only procedure available to the lawgiver for deciding who owns what is to seek an optimal accommodation between the common interest in secure possession and competing public interests. In deciding what is optimal, the citizen legislature is constrained by nothing but omnilaterality. That is, it may not redistribute holdings to advance a particular interest. Thus Kant says, When people are under a civil constitution, the statutory laws obtaining in this condition cannot infringe upon natural Right (i.e. that Right which can be derived from a priori principles for a civil constitution); and so the rightful principle “whoever acts on a maxim by which it becomes impossible to have an object of my choice as mine wrongs me,” retains its force.69

The parenthetical qualification makes clear that the natural right by which legislation is constrained is not the state-of-nature ‘right’ to acquired things; it is the right resting on a priori principles, among which is the right to the possibility of intelligible possession. A lawgiver’s dispossessing some for the exclusive benefit of others embodies a maxim under which intelligible possession is impossible.70 But while omnilaterality constrains the accommodation of interests, privately acquired rights do not, not even residually. Thus, there is no requirement that legislative expropriation impair a prior right as little as possible; for there is no such prior right. Property rights issue from the accommodation itself. That property is a conclusion of interest accommodation is, of course, the motto of legal realism and functionalism. It means that the laws of property and contract are directed to public goals. If property falls out of public distributive justice, then a taking by the citizen lawgiver of what is in a subject’s possession ought in general to be compensated, not because it is an infringement of property, but for the sake of the common interest in secure possession or because it would be distributively unfair for one person to shoulder the whole social cost of achieving a public goal. But this means that compensation is contingent on the balance of public interests or on whether the possessor was distributively entitled to the object in the first place. If the citizen lawgiver 69 Ibid at 6:256. 70 Thus, maximizing net utility across individuals is ruled out as a redistributive principle, but either Rawls’s fair equality of opportunity or difference principle is eligible.

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regards the holding as distributively unfair, then expropriating without compensating achieves distributive justice. Under Kantian public right, accordingly, there can be no right to compensation for a public taking. The citizen legislature has not taken property; it has defined property.71 Stated otherwise, under Kantian public right, there can be no constitutional right to property even residually binding the citizen legislature such that takings are justified if compensation is paid. Or rather there can be no right in the Kantian sense of a right. No doubt there can be a right in the welfarist sense of a marker for a strong interest. How does the provisional character of private property under Kantian Right affect private law’s autonomy vis-a`-vis public distributive justice? In one sense, this depends on what the citizen lawgiver chooses to do with the private law it receives from the state of nature; but in a deeper sense, private law’s autonomy dissolves in the civil condition no matter what the lawgiver does. Once the civil condition is instituted, the citizen legislature might deign to leave largely intact private rights of property and contract as having provisional and presumptive force subject to interstitial legislative changes and ad hoc expropriations for public ends; and it might leave courts to determine those provisional rights and to interpret statutes as presumptively retaining state-of-nature rights absent clear language to the contrary. But of course there is no Kantian necessity for this Anglo-American choice of common-law adjudication. Because private rights to acquired things have only provisional force for Kant, nothing in his system stops the citizen lawgiver from wiping the slate clean with respect to acquired rights, consigning private law to the dustbin of history, and beginning afresh in light of the sovereignty of the united people and the supremacy of public right, assimilating whatever past law accords therewith and discarding the rest. On the contrary, Kantian Right demands a rational systematization of civil law under the united will of all; for this is exactly the Judgment Day for which provisional rights have been waiting. Such a system might look like the French Civil Code, in which acquired rights are shaped in accordance with ‘public order and good morals’; or it could be the former Soviet Civil Code, in which private ownership was replaced by a civil right to use things owned collectively by the people.72 But

71 Kant is clear that corporations whose possessions have been taken by the people for a public purpose ‘cannot complain of their property being taken from them’; Kant, Metaphysics, supra note 22 at 6:324 –5. 72 The Civil Code of the Russian Socialist Federation of Soviet Republics (1965) forbade individual ownership of land ( permitting only use) and restricted personal property to that derived from the common capital; see AKR Kiralfy, ‘The New Civil Code of the RSFSR: A Western View,’ 15 ICQL 1116 at 1118 (1966). Compare Kant, Metaphysics, supra note 22 at 6:260-1, 6:312, 6:323-4.

300 UNIVERSITY OF TORONTO LAW JOURNAL whatever its specific incarnation, a Kantian Civil Code must, because of the infirmity it sees in private property, so imbue civil rights with public-law norms that the idea of a private law delimited by a border separating it from public law would cease to refer to anything real. Even assuming a common-law system, Kantian Right cannot view the law of transactions as private in any significant sense. In The Idea of Private Law, Weinrib dismissed the notion that the base-line equality vindicated by corrective justice is given by a prior allotment of holdings according to some conception of distributive justice.73 For if this were true, corrective justice would be subservient to, rather than independent of, distributive justice; it would not be an autonomous ordering of human interactions. The base-line equality alone suited to an autonomous form of corrective justice, Weinrib argued, is the equal worth of free agents considered as connected only by their transactions. This must be true. Yet from a full Kantian perspective, the condition in which free agents are connected only by their transactions is a conceptually unstable – hence transient – state of nature. And because property claims in that state receive no objective validation, the condition wherein agents are connected only by their transactions disappears into one wherein they are united under an omnilateral will (as well as by their transactions), leaving behind no proprietary legacy save the provisional one that public statutes determining ownership supplant. These statutes (e.g. tax and social assistance laws) comprise a scheme of distributive justice through which property in specific things first comes into being. In the civil condition, accordingly, the base-line equality vindicated by corrective justice can be nothing other than the equality produced by the distributive scheme, because public distributive justice is Justice and because the condition in which agents are linked only through their transactions has vanished without a juridical trace.74 Thus, even a common-law system existing by the grace of the citizen lawgiver must be conceived by Kantian Right as vindicating a distribution of holdings in accordance with ‘the sum of all the principles having to do with things being mine or yours.’75

73 Weinrib, Idea, supra note 1 at 78–80. 74 Innate right is not an exception because it presupposes the idea of agents united under an omnilateral will. 75 Kant, Metaphysics, supra note 22 at 6:261. Weinrib observes that, if corrective justice vindicates a background distributive scheme, then the remedy could take the form of two separate actions, one restoring to the plaintiff what he lost, the other taking from the defendant what he gained; nothing but administrative convenience justifies a direct transfer; Weinrib, Idea, supra note 1 at 79. Yet this is just the humiliation of corrective justice that Kantian Right implies.

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Acquired rights before a public court of justice

It might be argued that, while Kantian Right recognizes no private right to acquired things binding (even residually) the citizen lawgiver, it does make room for a relative private right before a court. As the organ of the omnilateral will that applies general laws to particular cases, a court may not fashion contingent accommodations between the interest in secure possession and other public interests – for two reasons. One, the coercive force of decisions reflecting such adjustments is consistent with the innate right of self-mastery only if these decisions are actually accepted omnilaterally by the people or their representatives. Two, a court’s deciding a case according to an ad hoc balancing of interests would subject the parties to an unknowable law they cannot have imposed on themselves; and this, too, would violate the innate right of being one’s own master. From this we can infer that a court rules consistently with innate right only if it rules in accordance either with statute or with necessary principles of right a priori knowable and acceptable to all. Now, one might be tempted by the idea that the only such principles are those comprising private right – namely, innate right, the axiom of right regarding external freedom, the postulate of practical reason regarding rights, and the obligation to enter a civil condition. Public right, one might think, consists only of positive legislation involving contingent accommodations of various public interests. Were this map of the legal landscape accurate, we could speak of an autonomous private law binding the judicial organ of the omnilateral will, if not its legislative organ, simply by virtue of the separation of powers demanded by innate right. Such a law would apply to agents regarded, however artificially, as related only by their transactions; and corrective justice would be the formal structure of this hived-off body of rationally discoverable law. The map is crude, however, for Kant denies that private right exhausts the content of a priori Right; the latter, he says, contains public-law principles of distributive justice as well, and these are enforceable by a court. For Kant, natural right broadly understood (as comprising the totality of principles resting on a priori Right) includes both the a priori principles governing bilateral exchanges, which he calls ‘commutative justice,’ and the a priori principles governing the allotment of things to persons in a civil condition, which form the rationally necessary part of distributive justice.76 Moreover, in adjudicating disputes, courts, too, determine what belongs to whom in a civil condition; and so Kant sees them, not only as declaring the provisional rights that would have relative force in a state of nature, but also as applying that part of public distributive justice resting 76 Kant, ibid at 6:297.

302 UNIVERSITY OF TORONTO LAW JOURNAL on principle and governing how court decisions must be reached if they are to be publicly transparent and acceptable to all.77 I’ll discuss this principle presently. But here, too, as one would expect, the conclusive rights issuing from public distributive justice nullify the provisional, private rights belonging to the state of nature. For example, public distributive justice, Kant argues, favours the bona fide purchaser for value without notice of the seller’s defective title over the owner recognized by private right (we’ll see why presently). In this contest, public right’s favourite prevails, and Kant is content to leave the owner according to private right remediless.78 Were the private right firm but defeasible rather than provisional, it would remain alive; and so one would expect a solution minimally invasive of the right – for example, one awarding title to the purchaser provided he compensate the owner. But Kant makes no mention of this (or any other) right-preserving possibility. Since it was only tentative, the private right can be shunted aside once public law has spoken conclusively. Even before a court, then, the standpoint of public law overwhelms that of private law, which loses all force. What is the a priori principle of distributive justice binding on courts in their adjudication of claims arising at private law? Stated generally, the principle enjoins a court to award each his due in a manner that preserves the court’s public character; for only under that condition can both parties be bound by the decision consistently with their innate right of self-mastery. Kant, however, does not state the principle so generally; instead, he focuses on a particular concretization of the principle in a requirement one might call a ‘rule of publicity.’ This rule requires a court to decide a dispute only in the light of evidence in the public domain – evidence concerning which reasonable certainty is possible. Thus, a contract must be interpreted according to its knowable stipulations, setting aside assumptions about what the parties privately wished or thought. Similarly, the bona fide purchaser without notice acquires an in rem right good against the world (or did in Kant’s day) because the court must give effect to the formalities of purchase and sale observed in a public market rather than enforce a supposedly true title of which no one can be certain. A publicity rule binds a court because transparency is a condition of its decision’s being self-willed by both parties. Were the decision to rest on the judge’s assumptions about recondite matters, it would become the decision, not of a public court of justice, but of the natural individual occupying the bench. Its binding force would then contradict the subject’s innate right of being his own master.

77 Ibid at 6:297 – 305, 313. 78 Ibid at 6:300 – 3.

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Observe that, in this case, the a priori principle of distributive justice binding a court governs the relationship between court and litigant rather than that between litigants and that its point is to preserve the public character of the court’s decision, so that, in obeying the decision, the litigant remains ‘his own master.’ We can call this general principle a ‘self-imposability’ principle. The publicity rule upon which Kant focuses is an application of this principle to the court’s procedure, in that the rule governs the manner in which a court decision is reached, specifying the sort of evidence a judge may consider, requiring oath swearing as surety for the truth of testimony, and so forth. Now, if the self-imposability principle were satisfied by a procedural rule of publicity enjoining decisions based on certain grounds, private law could retain both its doctrinal autonomy and structural integrity in court. It could preserve its doctrinal autonomy because the procedural rule, in trumping a right at private law, does not criticize or pare down the right it trumps. For example, the public law favouring the bona fide purchaser for value has no qualms with the private right of the owner; it merely substitutes its favourite for evidentiary reasons having nothing to do with the private right’s force. Nor does the procedural rule governing the relationship between court and litigant disrupt the correlativity structuring the relationship between plaintiff and defendant. The rule favouring the bona fide purchaser for value still gives him an in rem right putting all others under a correlative obligation. Because private law is not ordered to a substantive conception of distributive justice, the correlative structure of wronging and being wronged that gives private law its distinctive identity remains intact. However, it is not clear that the self-imposability principle is satisfied by a procedural rule enjoining court decisions based on certain evidence. Take the case of bad faith or oppressive assertions of private right. Jones invites Smith onto his land and looks on approvingly as Smith builds a cottage on it. Then, after the cottage is completed, Jones revokes his licence and orders Smith off his land.79 Private right provisionally permits Jones to eject Smith; but if a court enforces Jones’s right against Smith, it becomes the instrument by which Jones subordinates Smith to his choice, contrary to innate right. And so the binding force of the court’s decision on Smith would itself contradict Smith’s innate right to be his own master; for it would be a decision to which no dignified agent could assent. Accordingly, the a priori principle of distributive justice that generated a rule of publicity for a court also yields a rule against a court’s enforcing oppressive claims, however well founded in private law. In this case, the rule’s effect is to transform Smith’s licence

79 Inwards v Baker, [1965] 2 QB 29 CA.

304 UNIVERSITY OF TORONTO LAW JOURNAL into a possessory right in the cottage and thus to transfer some of Jones’s land to Smith. The court, however, does not aim at this redistribution; it merely brings it to pass as a side-effect of preserving its nature as a public court of justice. In this example of proprietary estoppel, the overruling of private right to preserve the court’s public integrity invokes substantive rather than procedural concerns because the threat to the court’s integrity comes from the unqualified private right, not from a reliance on uncertain evidence. Therefore, the rule that public law applies – that a court may not enforce oppressive private-law claims – frontally criticizes the private right insofar as it is asserted without qualification. Since, however, a private right has shrunk in conforming to a rule of public law concerning the scope of enforceable private rights, one can no longer say that private-law doctrine is wholly independent of public law. The appearance of doctrinal autonomy under the rule of publicity is more an accidental function of the weakness of the procedural principle than a reflection of the strength of the provisional right. Still, one can say that private right has thus far retained its systemic integrity before a court. This is so because the principle overruling it does not introduce interpersonal obligations inconsistent with private right or redirect private law toward a public end so as to destroy the correlativity of wronging and being wronged. It is a passive rather than an active principle. In Jones v Smith, for example, the court’s principle is not that Jones owes a duty to provide a gratuitous benefit to Smith; it is that a court will not lend its authority to Jones’s abuse of his private right. The gratuitous transfer is a by-product, not the principle, of the court’s decision. In the idiom of judges, proprietary estoppel is a shield rather than a sword. Now, if private right retained a residual force in being overridden by public distributive justice, we would say that this passive mode of the latter’s operation is the limit of its operation in a court of law. We would say that the only reason a court could invoke for overruling private right is the requirement that it preserve its nature as a public court of justice. It could thus only refuse to enforce private right in certain well-defined cases; but it could not mould the law of interpersonal transactions into a vehicle for realizing public ends. In particular, a court could not impose civil obligations for the sake of distributive justice that contradicted private right’s basic norm against unilateral obligations; nor could it impose liabilities for a common end that disrupted the correlativity of wronging and being wronged. Any demand of distributive justice whose satisfaction in court would breach these limits would be for the legislature to fulfil on a system-wide basis external to the transaction between a plaintiff and a defendant. That is what we would have to say if private right exerted residual force in a civil condition.

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For Kant, however, private rights to acquired things are but unilaterally asserted claims. Hence, they hold only provisionally, and when at last they come before the tribunal of public distributive justice, they are judged. If found wanting, they disappear. Without a trace. Even in court, as we have seen, they lack residual force when trumped by an a priori principle of distributive justice enforceable by the judicial branch. So, provided it can do so by invoking a principle of distributive justice knowable a priori to reason, a court could, with Kantian Right’s blessing, fundamentally reshape private law into a transparent medium for the realization of a public end.80 Does Kantian Right know a principle with that sort of power? Consider innate right. It is, Kant says, the right to be one’s own master. Analytically contained in this right is the right to be ‘independent of the constraint of another’s choice’ – that is, of another’s forcible restraint of one’s body pursuant to his ends. We have seen, however, that innate right carries a priori implications beyond the one strictly entailed by it. To have a right to be one’s own master is to have a freedom to act on one’s choices to the greatest extent compatible with the equal freedom of others; and this axiom of right with respect to outward freedom implied a right to use things distinct from a right to possess them, hence a right to recover from others objects one has claimed by a prior possession. However, just as the right to things that are not me was joined to innate right synthetically by reasoning from the right to be one’s own master, so too can a right to a reasonable measure of security for one’s investment in a life plan be so connected. To be one’s own master is to be master of one’s life. But one is master of one’s life only if the vulnerability of

80 It could so without falling into what Kant, Metaphysics, supra note 22 at 6:297, calls the ‘common fault of experts on Right’ – namely, the misrepresentation of public right as natural right (in the sense of right in the state of nature). If public right is forthrightly presented as supplanting natural right, there is no misrepresentation. Indeed, that is just how Kant presents it. What, however, of Kant’s statement, ibid at 6:306, that public right ‘contains no further or other duties of human beings among themselves than can be conceived [in private right]; the matter of private right is the same for both’? This cannot mean that public right introduces no new specific duties between human beings because Kant, in illustrating how public right changes a result required by private right, shows how public right indeed introduces several dramatically new interpersonal duties; see note 82 infra. The statement’s meaning is unclear, but it could mean that the common matter of public and private right is the right to have as mine something or someone that is not me as well as the contractual right to compel another’s choice. Public law does nothing but perfect both. However, public law introduces its own criteria for determining who owns what as well as its own criteria for determining when a promise is enforceable and how a risk was allocated between the parties. Given the provisional character of private rights, there is no reason why these new criteria should respect private right; therefore (as the examples in note 82 infra show), Kant doesn’t.

306 UNIVERSITY OF TORONTO LAW JOURNAL one’s investment in a life plan to the choices of others is limited to a dependence on choices within the power of a finite agent to foresee and control; for if it were not so limited, other people would get to determine the kind of life one leads. So, a right to be one’s own master implies a right to have one’s vulnerability to others’ choices kept within bounds consistent with the equal self-determination of all. Consequently, if human beings cannot avoid dependence on others’ choices, the right to be one’s own master implies their right to coerce the unwilling to enter a civil condition within which the right to protection for one’s investment in a life plan against the unforeseeable choices of others is guaranteed by public law. Because the right to life-plan security against others’ unforeseeable choices is derivable a priori from innate right, it has the sanction of an omnilateral will prior to a civil condition. Hence, it is not provisional; a public authority is duty-bound to protect it undiminished. In a civil condition, moreover, this right becomes a principle of public distributive justice knowable a priori by reason. Therefore, a court may enforce it consistently with the subject’s innate right of self-mastery and must do so if it is to administer public distributive justice to the limit of its constitutional powers. Let us now return to Jones and Smith, only this time let Smith be the plaintiff. By inviting Smith onto his land and by acquiescing in Smith’s building a cottage there, Jones raised in Smith a reasonable expectation that Smith would be able to enjoy his cottage for as long as Jones owned the land. In turning around and asserting his property right, Jones violated Smith’s right to life-plan security against the unforeseeable (because unreasonable) choice of another. A court of public justice is obliged to vindicate Smith’s right, but by what remedy? It could simply order Jones to pay Smith fair market value for the cottage he built in order to create the mutual transfer between equals within which alone (absent gift) a property right can pass. However, that remedy, while respecting the innate right against unilateral obligations, is misaligned with the right infringed – a right to mastery of one’s life, not to ownership of one’s product; and so corrective justice is not served. The only remedy perfectly aligned with Smith’s right is an order that Jones fulfil the expectation he raised by transferring to Smith a possessory right in the cottage tenable for as long as Jones owns the land.81 To this remedy, Jones’s property right presents no obstacle, for that right was only provisional, and so it yields without remainder to Smith’s right in public distributive justice. In the result, private law is moulded toward a public end of self-determination because the court has found that 81 The ‘constructive trust’ doctrine is available for this end; see Pettkus v Becker, [1980] 2 SCR 834.

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Jones has a coercive duty to confer a benefit on Smith for which Smith did not pay.82 It might be argued that, since innate right is conclusive in the state of nature, it must put a constraint on public law, which is therefore enjoined from introducing civil obligations inconsistent with the innate right against unilateral ones. Observe, however, what sort of constraint this is. Because it operates against the logical momentum of innate right’s own public realization, the constraint manifests a conflict within innate right – one between its positive and negative dimensions. Therefore, its legal force reflects, not the rational limit of a principle forming part of a coherent organization of principles, but the ambivalence of a principle at odds with itself. To respect Jones’s negative right against being coerced unilaterally to benefit another is to leave Smith’s positive right to be master of his life unrealized; to enforce Smith’s positive right in public law is to violate Jones’s negative right in private law. Since nothing determines a court’s choice as to which side to favour and which to sacrifice, there is no constraint.83 In the foregoing example, private law’s injunction against gratuitous positive obligations is dispatched, but the correlativity structure of corrective justice seems undisturbed. Smith’s right is against Jones, who has a correlative duty to Smith, and Jones has a duty to give Smith exactly what Smith has a right to receive from Jones. Consider, however, a nuisance case. Suppose a developer builds houses on the outskirts of town that eventually extend into the vicinity of Jones’s long-standing pig farm, converting the farm into a nuisance at private law. Smith, one of the new homeowners, sues to enjoin Jones from raising pigs near the development. Since Smith’s private right to enjoy this particular 82 The idea that a court ought to impose the interpersonal obligations required by public distributive justice even though they are inconsistent with private right’s basic norm against unilateral obligations need not be inferred from Kant’s text; it is there explicitly. Although Kant sees the gratuitous contract as part of a rational classification of contracts, he thinks that private law must make assumptions about donor intent in line with innate right – assumptions that public law must then reverse; Kant, Metaphysics, supra note 22 at 6:285. So he argues that, absent an express reservation, the rule of publicity binding a public court requires a donor to keep a gratuitous promise accepted by the donee even though, at private law, a court must assume that the donor did not intend to bind himself, for to have done so would have been to throw himself away; ibid at 6:298. Similarly, where a bailor lends something gratuitously, a public court (Kant argues) must lay the onus on him expressly to put the responsibility for damage on the bailee even though private law, in accordance with the presumption against gratuitous guarantees, assumes that the bailor did not accept responsibility and so puts the onus on the bailee to disclaim responsibility in a separate contract; ibid at 6:298 –300. 83 Therefore, Kant, in his own examples of conflict between public and private right, observes no constraint; he simply opts for public right; see note 82 supra.

308 UNIVERSITY OF TORONTO LAW JOURNAL home is ‘only provisional,’ it offers no resistance to Jones’s right in public law to the security of his life plan against the unforeseeable choices of others. And yet Smith, too, has invested in a life plan, reasonably (indeed, correctly) believing that private law was on his side. So Smith’s right to self-determination must also be secured. To mete out equal justice, the court must pull a remedial rabbit out of a distributive-justice hat. Perhaps it will enjoin Jones’s pig farming but order Smith to compensate Jones for the cost of moving his farm.84 Or perhaps it will dismiss Smith’s suit to enjoin Jones’s farming but nonetheless order Jones to compensate Smith for his loss of odour-free enjoyment.85 In either case, the correlativity structure of private law crumbles compatibly with Kantian Right. Plaintiff’s right is no longer correlated to defendant’s liability; it may co-exist with plaintiff’s liability and defendant’s right. Nor is defendant’s liberty correlated to plaintiff’s no-right; it can co-exist with plaintiff’s right to compensation. Indeed, neither plaintiff’s nor defendant’s right to compensation need be satisfied by the other. Since the public right to life-plan security can be guaranteed from a public fund, funnelling compensation through the litigants is merely an administrative technique. Against this outcome, private law can raise no outcry, assert no uxorial right of independence, for its autonomy was always provisional pending public right’s move to supplant it, and now its fate has been sealed. It is dead.

V

Conclusion

Kantian Right will not wed private law freely. It will have to be coerced. This is so because Kant regards private rights to acquired things as resting on a unilateral appropriation – one that receives no validation prior to public distributive justice. Because, however, no one can impose a binding distribution on others consistently with their innate right of self-mastery, privately acquired rights hold only provisionally. This means that they are tentatively enforceable as claims stronger than those of wrongdoers because of their consistency with the formal concept of ownership but that a citizen legislature may reject a distribution resulting from actions permitted by private law; and only the public distribution yields conclusive rights. Unlike innate right, therefore, privately acquired rights have no conclusive normative status that a public lawgiver is obliged to respect; nor do they exert residual force once they have been set aside by an organ of the omnilateral will administering 84 Spur Industries v Del E. Webb Development Co, 494 P2d 700 (Ariz Sup Ct 1972). 85 Boomer v Atlantic Cement Co, 257 NE2d 870 (NY Sup Ct. 1970).

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public distributive justice. This is as true before a court as it is before a legislature. It follows that under Kantian Right, right is identical with public right. There is no such thing in a fully realized Kantian Right as a distinctively private right to acquired things that corrective justice could separately vindicate. At best, there is a semi-autonomous private law before a commonlaw court; but even that depends on the legislature’s choice whether or not to systematize civil law under the united will’s sovereignty as well as on the robustness of the principle of distributive justice that a court applies to a property or contract dispute. If Kantian Right’s depreciation of private law shows in Kant’s viewing private rights to external things as provisional, one may wonder how essential this view is to Kantian Right. Perhaps, it is a reparable flaw in Kant’s elaboration of his system or a non-essential and therefore alterable aspect thereof. Perhaps, we can change provisional rights to firm but defeasible ones consistently with Kantian Right. If so, private law could maintain some autonomy from public law within a system encompassing both as constituent parts. Also, private acquired rights could retain residual force though defeated by public distributive justice; and that force might express itself in a requirement that, when overridden, private rights be impaired no more than necessary. We could even be forgiven for calling such a requirement the Kantian approach to relations between private law and public right. The idea that private rights to external things are provisional is essential to Kantian Right understood as a theory of justice resting on a particular fundamental principle that gives Kantian Right its specific identity. Fundamental to Kantian Right is the idea that Right rests on the united will of all.86 This is understood, not as an empirical aggregate of desires, but as a concept grasped by reason. Right rests on a pure will that wills only what all self-respecting ends could will for themselves – namely, the sum of the conditions of equal freedom. Antithetical to this idea is the notion that individual rights to particular things could be established, even defeasibly, in the absence of the united will of all. It is, in other words, a contradiction to say both that Right rests on the united will of all and that the united will of all must defer (even if only to acknowledge a duty of minimal impairment) to right-claims to external things arising independently of it. That is why Kant, the Kantian, distinguishes between the force of innate right and that of acquired rights in the state of nature. Innate right already has, a priori, the omnilateral will’s sanction, whereas 86 Kant, Metaphysics, supra note 22 at 6:313: ‘The legislative authority can belong only to the united will of the people. For since all Right is to proceed from it, it cannot do anyone wrong by its law.’

310 UNIVERSITY OF TORONTO LAW JOURNAL right-claims to acquired things do not. So, though all rights in the state of nature are unrealized for lack of a public authority, only acquired rights hold provisionally barring public rejection. Only their force is limited to comparative force based on the possibility of their confirmation by the united will of all. Once a civil condition is instituted, the united will may test unilaterally asserted right-claims for public validity, or it may leave them in limbo and enforce those that can be confirmed. But before the testing occurs, there is nothing constituted that could subsequently be overridden by public justice. There are only claims eligible or ineligible for enforcement. If a claim is rejected by the united will, its force is nullified, not defeated and preserved; if accepted, the property right is constituted by public justice, not protected as constituted beforehand. Accordingly, Kant’s characterization of private rights to external things as provisional reflects his fundamental allegiance to the juridical supremacy of the united will of all. His depreciation of private acquired rights is the obverse of his idolization of the general will. It follows that changing provisional rights in the state of nature to firm but defeasible ones would require a basic philosophical reorientation. Unless incoherent, such an amendment would signify a transfer of allegiance from the general will to a will that embraces the distinction between the general will and the particular will of the monadic individual – a will of which the general will is but a constituent element. That fundamental idea would organize another system of Right distinct from the Kantian. In fact, it organizes Hegel’s system of Right.87 So, unless one wishes to use ‘Kantian Right’ as a brand name for whatever package of juristic ideas seems most appealing, one cannot quietly change provisional rights in the state of nature to firm but defeasible ones and call the new and improved product Kantian Right. That private rights to external things are provisional and displaceable by public right – that all conclusive right is public right – is an idea essential to Kantian Right. Indeed, it is Kantian Right. If, as Kantian Right holds, there is no such thing as a private right to acquired things, then the ‘idea of private law’ has no referent. Nothing in reality corresponds to it. I don’t mean that nothing in empirical existence 87 The idea – named by Hegel ‘Geist’ – involves three logical moves beyond Kantian Right. First, it requires an objective Will distinct from the pure will of empirical individuals. Second, it requires an objective Will that incorporates a public-minded particular will as the means of its confirmation as an end. Third, it requires this inwardly differentiated Will to defer to the particular will of the atomistic individual as to the means of its confirmation as the structure of all valid worth claims. In what must therefore be regarded as the worst compound matchmaking error since Emma Woodhouse persuaded Harriet Smith to reject Robert Martin for Mr Elton, Professor Weinrib, while setting private law up with the wrong partner, told her that the right one was but an imitator of his favourite; see Weinrib, Idea, supra note 1 at 81, n 54.

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corresponds to it; that may or may not be true, and even if it were true, that would imply no defect in the idea. I mean that nothing of any stable reality corresponds to it. An idea of something (for instance, a state) to which no empirical entity fully corresponds may still be an archetype or excellence that its examples can rightfully be called upon to replicate or approximate. Such an idea Kant calls an idea of reason having practical reality – that is, an idea that ought to govern practical deliberations about what institutions to establish and what laws to enact.88 But an idea of something (for instance, a serf ) to which an empirical existence can correspond but to which no rational existence corresponds Kant would call an empty idea.89 Under Kantian Right, the idea of private law is an empty idea. Of course, this is not to say that the idea of private law is an empty idea. It is not, and Ernest Weinrib’s formal analysis of this idea is for the ages. However, Kantian Right cannot be the normative complement for Aristotle’s form of corrective justice if the idea of private law is empty for it. For a bridegroom for corrective justice, one must look, not in Ko¨nigsberg, but in Berlin.

88 Immanuel Kant, ‘On the Proverb: “That May be True in Theory, But Is of No Practical Use,”’ in Immanuel Kant, Perpetual Peace and Other Essays, translated by T Humphrey (Indianapolis: Hackett, 1983) at 77. 89 Kant, Metaphysics, supra note 22 at 6:241.

Martin Stone*

LEGAL POSITIVISM AS AN IDEA ABOUT MORALITY†

I ask what a proper critical target for ‘legal positivism’ might be. I argue that utilitarian moral theory, and more generally fully directive moral theories, are unacknowledged motivations for legal positivism. Contemporary debate about ‘the nature of law’ is, historically speaking, much more of a footnote to utilitarianism than has been recognized. Keywords: Positivism/nature of law/utilitarianism/natural law/Hart/Austin/ Kant/Weinrib

Definitions of law we have, in almost unwanted abundance. But when law is compared with morality, it seems to be assumed that everyone knows what the second term of the comparison embraces. . . It has seemed to me, the legal mind generally exhausts itself in thinking about law and is content to leave unexamined the thing to which law is being related and from which it is being distinguished. —Lon Fuller, The Morality of Law 1 I

Ernest Weinrib represents his approach as seeking an ‘internal understanding’ of the law – one which reveals its ‘internal intelligibility’2 – and this has evidently caused some confusion. Some have dismissed it as an unhelpful metaphor.3 I think the confusion is unnecessary because a fairly clear idea (one which finds application in a great many ordinary, non-legal contexts) lies behind this way of speaking. Suppose I say that I didn’t go to the movies but helped Arthur pack instead because he is my friend. I assume this sort of case is familiar, however * Professor of Law, Benjamin N Cardozo School of Law; Adjunct Professor of Philosophy, New School for Social Research † This paper is indebted to discussions with Matthew Boyle, Douglas Lavin, and Richard Moran, to Arthur Ripstein’s comments on a previous draft, to the editorial help of Raina Sabharwal and Michaela Brangan, and, of course, to Ernest J Weinrib, who is its proximate cause. 1 Lon Fuller, The Morality of Law (New Haven: Yale University Press) at 3 – 4. 2 Ernest J Weinrib, The Idea of Private Law (Harvard University Press, 1995) at 2, 8, 11 –8, 22 [Weinrib, Idea]; see also Ernest J Weinrib ‘Legal Formalism: On the Immanent Rationality of Law’ (1988) 97 Yale LJ 949 at 952 [Weinrib, ‘Legal Formalism’]. 3 See Joseph Raz, ‘Formalism and the Rule of Law,’ in Robert P George, ed, Natural Law Theory: Contemporary Essays (Oxford: Oxford University Press, 1992) 309 at 314. (2011), 61

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DOI: 10.3138/utlj.61.2.313

314 UNIVERSITY OF TORONTO LAW JOURNAL obscure its philosophical analysis might be. It has to do with explaining (interpreting or rendering intelligible) an action of mine, and this is accomplished by mentioning my engagement with the value of friendship. The fact that he is my friend is what stands out for me about the situation and gives me my reason; I act with a view towards friendship. This example involves several related features, which will be of special interest here, since they earmark Weinrib’s ‘internal’ form of account: (1) Abstractness. What does the work of rendering my action intelligible is something quite abstract – friendship – together with my recognition of the way this value is engaged by the circumstances of the particular case. (2) Indeterminacy. This abstract value is indeterminate both epistemically (what I should do in such cases cannot be exhibited as the conclusion of an independent deductive argument with ‘He is my friend’ as one of its premises) and constitutively (what friendship requires here may depend, in part, on social practices and shared understandings that vary in different times and places). (3) Judgement-dependence. Because of (1) and (2), the content of ‘friendship’ is not fully available, as we might put it, apart from efforts to judge or discern what friendship requires in particular situations. (4) Non-self-standingness. The concept of friendship requires such judgements and the social practices of relationship that inform those judgements if it is to find application in our lives. Despite these points, and notwithstanding the evident circularity involved,4 the appeal to ‘friendship’ in cases like the present one is something genuinely explanatory; it gets at what I am doing (which is also to say why I’m doing it) in the most direct way possible. In fact, if one were to object to such circularity – ‘a grasp of the content of “friendship” depends on the situational judgements it is supposed to explain!’ – one would be making a mistake. For a great many values are practically unavailable apart from such circularity. The content of genuine kindness in particular cases, for example, cannot be fully specified independently of the judgements of a kind person. Similarly, it is no defect, but lies in the very nature of such a case that, after a certain point, the requirements of friendship must be elucidated through judgement and examples. Now, this is how it is with Weinrib’s appeal to ‘corrective justice’ and to Kant’s ‘principle of right’ as an explanation of private-law doctrine. This is an appeal to something abstract, indeterminate, judgement-dependent and not self-standing, yet carrying genuine explanatory force.

4 On ‘circularity,’ compare Weinrib, Idea, supra note 2 at 21.

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Given these features, we can see why Weinrib contrasts an ‘internal’ account of private law with any sort of instrumentalism and also why his account is immune to some of the charges – those based on abstractness, indeterminacy, and judgement-dependence – which have been brought against it.5 Instrumental explanations make an action or a rule intelligible in terms of its bringing about some independently specified state of affairs, one which is fully graspable quite apart from the action or rule to be explained. (Such independence is the normal background for speaking about one thing bringing about another.) Moreover, in the case of the instrumental explanation of rules, the value, condition, or state of affairs that the rule is supposed to bring about is often something more determinate (as utilitarians have often pointed out)6 than the rule to be explained. What is to be brought about is also self-standing: the rule is one means of doing so; there may be other, more direct means. Now, if someone objects that a particular explanans is abstract, indeterminate, and judgement-dependent, they are thinking of instrumental explanations, where these qualities would be genuine defects. If Weinrib’s argument were that private law ‘brings about’ corrective justice (as if the only thing wrong with contemporary instrumentalism, for him, were that it chooses the wrong goal), he would stand open to such charges. But that is not his argument. Just as it is off-key to say that I help Arthur in order to ‘bring about’ friendship (such acts are what friendship consists in; in doing them I am being a friend),7 so, too, private law, on Weinrib’s account, does not ‘bring about’ corrective justice. Private law expresses, interprets, or specifies corrective justice: it spells out, through public judgment, what corrective justice requires in particular (kinds of ) cases.8 I have elsewhere sought to capture this sort of explanatory structure by saying that corrective justice makes us aware of the contours of a [legal] practice in which a certain kind of case (a transaction) is central. The practice is thought to be of ethical interest because a distinctive sort of reason is in play in it; and it is through our grasping just this sort of reason that we can understand the contours of the practice.9 5 For an example of these charges, see Richard Posner, The Problems of Jurisprudence (Cambridge, MA: Harvard University Press, 1990) at 316 [Posner, Problems of Jurisprudence]; Richard Posner, ‘The Concept of Corrective Justice in Recent Theories of Tort Law’ (1981) 10 J of Legal Stud 187 [Posner, ‘Concept’]. An earlier version of such charges is Hans Kelsen, ‘Aristotle’s Doctrine of Justice’ in Hans Kelsen, ed, What is Justice? (Berkeley, CA: University of California Press, 1960) 117. 6 See e.g. Henry Sidgwick, Methods of Ethics (New York: Macmillan, 1901) at 421. 7 Compare: the shopkeeper who gives the right change does not ‘bring about’ honesty; rather, he is honest: i.e., actions like this are what honesty consists in. 8 C.f., Weinrib, Idea, supra note 2 at 218–9. 9 Martin Stone, ‘On the Idea of Private law,’ (1996) 9 Can JL & Jur 235 at 258; quoted approvingly in Ernest J Weinrib, ‘Correlativity, Personality, and the Emerging

316 UNIVERSITY OF TORONTO LAW JOURNAL II

This is only my starting point, however. If Weinrib had merely used ‘internal’ as a descriptive label for this non-instrumental explanatory structure, I think this label would have seemed less remarkable. However, other issues in general legal theory seem to be on the table, and here, I want to look more closely at one of them. Weinrib’s emphasis on ‘internal’ carries an unmistakable echo of Lon Fuller’s polemic against legal positivism. Indeed, Weinrib hints that the ‘internal approach’ reveals an immanent legal ‘morality’ and thereby shows that legal positivism, the dominant legal theory since the nineteenth century, is mistaken: To regard law from [an ‘internal approach’] is to take seriously the ancient commitment of natural law theorizing to the possibility that law resides in the reason.10 Formalism is not positivist, because corrective justice and distributive justice are conceptual categories that inform the content of law without themselves being posited by legal authority.11

In these passages, Weinrib alludes to the distinction which has pre-occupied contemporary legal theory (‘positivism’ versus ‘natural law’), but I find myself less certain than he is about how to draw these dividing lines. Absent further explanation,12 his second statement is puzzling. Why not say that the legal theory of Bentham and Austin is not positivist because ‘maximum average happiness’ is a conceptual category that informs the content of the law without itself being posited by legal authority? Weinrib might be thinking that because ‘corrective justice,’ unlike ‘maximum happiness’ or its contemporary economic variants, isn’t fully specifiable apart from the law (i.e., because private law expresses corrective justice and does not merely ‘bring it about’) – we are, therefore, entitled to count corrective justice as an official part of the law or as part of the Consensus on Corrective Justice’ (2001) 2 Theor Inq L 107. C.f., Weinrib, Idea, supra note 2 at 73: ‘[T]he two forms of justice are structures of justificatory coherence: [they] apply to an external relationship by applying to the type of justification that supports that relationship.’ I was indebted in my formulation to John McDowell’s characterization of the structure of Aristotle’s thought in ‘The Role of Eudaimonia in Aristotle’s Ethics’ in Ame´lie Oksenberg Rorty, ed, Essays on Aristotle’s Ethics (Berkeley, CA: University of California Press, 1980) 359, esp at 364. Functionalists like Guido Calabresi were right to sense that ‘justice is a totally different order of goal from accident cost reduction’; Guido Calabresi, The Costs of Accidents (New Haven, CT: Yale University Press, 1970) at 25. But in conceiving of ‘justice,’ as, in effect, a sideconstraint on the pursuit of accident cost reduction (see e.g. ibid. at 300), Calabresi fails to appreciate how different it is. 10 Weinrib, Idea, supra note 2 at 14. 11 Ibid at 229. 12 Such further explanation will be attempted in Part VII below.

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validity conditions of the laws of a particular time and place: ‘a moral order which is immanent to the law.’13 But to this, one can easily hear a positivist rejoinder: ‘What we do is to lay down a requirement concerning the formal limits of the law: legal norms are source-based, not merit-based; they can be identified without recourse to moral reflection.14 If it turns out that the best merit-displaying explanation of those norms is internal (in the modest sense of PART I above) – that is, if it turns out to refer to the abstractions of corrective justice and right – that is no business of ours. We merely insist that any moral materials disclosed by such an investigation are not, just on that account, to be considered part of the law.’ The positivist who makes this speech today is apt to see himself as doing ‘analytic jurisprudence.’ He seeks to clear up ‘the nature of law’ quite independently of any results of ‘normative jurisprudence,’ where questions like Weinrib’s (those that concern the reasons that do or should inform particular departments of the law) are pursued.15 Hence, the positivist purports to be able to accept the results of Weinrib’s investigation into the normative grounds of private law while remaining a positivist. To express it in Kantian terms, he purports to accept that the legal categories of right that get elaborated and enforced in public positive law may already be immanent in the bipolar relations of private parties, quite apart from the state.16 (As I shall observe in PART X, HLA Hart accepted this Kantian point.) To further complicate things, there are ample grounds for thinking that Kant might have found contemporary legal positivism – the thesis that legal norms are always source-based or always some public official’s view of things – quite acceptable and consistent with his view of natural right as immanent in private relationship. Certainly, Kant finds nothing commendable in the doctrine, associated in recent times with naturallaw views, that there is no obligation to obey unjust laws or that such

13 Weinrib, ‘Legal Formalism,’ supra note 2 at 955; c.f., Weinrib, Idea, supra note 2 at 146, 168, 170, 207, 214. 14 C.f., John Gardner, ‘Legal Positivism: 51/2 Myths’ (2001) 46 Am J Juris 199; Joseph Raz, The Authority of Law (Oxford: Oxford University Press) at ch 3 [Raz, Authority]. 15 See e.g. Scott Shapiro, Legality (Cambridge, MA: Harvard University Press, 2011) at 2– 3; Gardner, supra note 14; Jules L Coleman, ‘Negative and Positive Positivism’ (1982) 11 J Legal Stud 139 at 147: ‘Legal positivism makes a conceptual or analytic claim about law, and that claim should not be confused with programmatic or normative interests certain positivists, especially Bentham, might have had.’ 16 C.f., Immanuel Kant, Metaphysics of Morals, translated by Mary Gregor (Cambridge, UK: Cambridge University Press, 1996) at 6:306; c.f., ibid at 6:312 –3. (Page citations are to volume 6 of the Prussian Academy edition of Kant’s works, upon which Gregor’s translation is based. These page numbers appear in the margin of Gregor’s translation) [Kant, Metaphysics].

318 UNIVERSITY OF TORONTO LAW JOURNAL laws are not morally binding.17 Moreover, in describing the obligation of ‘leaving the state of nature’ and creating institutions of ‘public law,’ Kant speaks of the necessity of ‘entering into a condition in which what is to be recognized as belonging to [each] is determined by law and is allotted to [each] by adequate power.’18 Kant’s emphatic use of ‘law’ in this passage must be read in terms of the restrictive concept that the positivist seeks to elucidate: provisional property rights become distinctively a matter of law only with the creation of appropriate public institutions.19 Kant’s account of the reasons for the necessary development of private right into public law are also, as the surrounding passage makes clear, strikingly similar to the reasons that figure in recent arguments for legal positivism: viz., the need for public, authoritative ways of settling what is to be done without having to rely on private judgement (or consensus in such judgement).20 If the law were such that discernment of moral truth were needed in order to identify its existence or content, it could not play the role (of effectively replacing private judgement) which Kant assigns to it in this passage. Not surprisingly, some recent commentators, moved by considerations like these, have flatly asserted that Kant is a legal positivist.21 These considerations show that the alignment of Kantian legal theory with the classifications of contemporary jurisprudence (natural law/ positivism) is not straightforward. I’ve wondered about this alignment since I first read The Idea of Private Law. Despite the hesitations above, I think that Weinrib is right to see his results as getting in the way of legal positivism, though not in the direct way he seems to contemplate. He suggests that the truth of positivism is undermined by Kantian legal theory. My thesis is that his development of Kantian legal theory makes perspicuous the way in which, not the truth, but rather the interest of

17 See ibid at 320 –3. I don’t put much emphasis on this first reason for reading Kant as friendly to ‘positivism’ because I think this doctrine is not, in fact, an essential part of a natural-law theory; see generally, John Finnis, Natural Law and Natural Right (Oxford: Oxford University Press, 1980) [Finnis, Natural Law]. 18 Kant, Metaphysics, supra note 16 at 6:312 [emphasis in original]. 19 One finds the same verbal emphasis in Hegel. See e.g. GWF Hegel, Elements of the Philosophy of Right, ed by Allen Wood, translated by HB Nisbet (Cambridge, UK: Cambridge University Press, 1991) at § 211: ‘When what is right in itself is posited in its objective existence – i.e., determined by thought for consciousness and known as what is right and valid – it becomes law; and through this determination, right becomes positive right in general.’ Hegel is marking here the etymological relation between Gesetz (law) and gestzt ( posited); see also ibid at § 212. 20 Compare Raz, Authority, supra note 14 at ch 3; and Joseph Raz, Ethics in the Public Domain (Oxford: Clarendon Press, 1995) at ch 10. 21 See e.g. Jeremy Waldron, ‘Kant’s Legal Positivism,’ (1996) 109 Harv L Rev 1535; c.f., Alan Ryan, Property and Political Theory (Oxford: Basil Blackwell, 1984) at 79–80.

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positivism (or as I might put it, the condition of the possibility of caring about it) is what is undermined. III

Here is an explanation of what I mean. A Kantian legal theory is not just a set of ideas about the normative structure of law but also, thereby (and from its very starting point), a description of a sub-region of morality, one conceived to be proprietary to law.22 Kant’s Rechtgesetz – ‘so act externally that the free use of your choice can coexist with the freedom of everyone in accordance with a universal law’23 – is an a priori principle of morality. But it has only one possible employment: to be embodied (i.e., adjudicated and enforced) in public institutions of positive law. Beyond that, it is useless and inert. (In other words, it is indeterminate, judgement-dependent and not self-standing.) Now, my claim is that, although a positivist could logically accept the ‘principle of right’ as informing private law – that is, he would not contradict himself if he continued to draw the limits of ‘the law’ on the basis of social sources – this project of formal limitation could never have seemed interesting, much less revolutionary, against the background of this kind of picture of morality: morality as containing, as one of its parts, materials proprietary to questions of legal right. Turning this around, my claim is that what made positivism interesting was not so much a new idea about law as a new picture of morality: viz., one in which morality has nothing to say, except in a derivative way, about law or legal rights, about whether there are or should be any legal rights, or about whether governments are needed to specify and secure them. On this new picture, whether morality calls for the existence of legal institutions at all becomes a contingent matter, a matter of the efficiency and acceptability of means to an end. In making this claim, I am, of course, partly remembering something everyone already knows as a matter of historical record. The early positivists, those who got the new doctrine up and running, were utilitarians. They thought of law as an instrument in the service of a determinate and otherwise self-standing morality. But this historical fact has been misunderstood. Legal theory, today, treats it as an accident in the history of positivism, when it is, in fact, essential to the matter. We owe our forgetfulness, in part, to Hart. After brilliantly disentangling the ‘separation 22 Morality, for Kant, is comprised of the a priori systems of juridical and ethical law. See Kant, Metaphysics, supra note 16 at 214, 219– 220, 242, 379. The division is exhaustive and is expressed in the division of this work into two parts: a Rechtslehre and a Tugendlehre. 23 Ibid at 6:231.

320 UNIVERSITY OF TORONTO LAW JOURNAL thesis’ (which was, for him, the core of ‘positivism’) from other objectionable aspects of Austin’s theory (the command theory, the idea of an unlimited sovereign, etc.),24 he handed the separation thesis on to posterity, as if you could raise the question of ‘the relation between law and morality’ without having any very precise idea of what you meant by ‘morality.’ That is how the question continues to be asked today: ‘Let critical morality be anything you like, save for just this, that what it says is always true; now, tell me, are law and morality conceptually connected or not?’25 This forgetfulness is, I think, part of our present troubles. For classical natural-law theories are, structurally speaking, accounts of a region of morality which, therein, also describe a necessary place for positive law.26 So it would be odd if you could really make an interesting break with these theories, one that goes beyond mere stipulation, simply by limiting ‘law’ (‘simply and strictly so called,’ as Austin says) to the positive element recognized in such classical theories. Something more must have been happening for positivism to strike people as something new. But what? This forgetfulness will have to be considered if we are to understand how it is that we have moved from what once seemed a clear and revolutionary jurisprudential doctrine – Austin’s ‘positivism’ – to the present state of discussion, in which many say that they have trouble understanding what the significance of the classifications – positivism versus natural law – is supposed to be.27 24 See HLA Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harv L Rev 593 [Hart, ‘Positivism’]; HLA Hart, The Concept of Law (Oxford: Oxford University Press, 1961) at chs 1 –4 [Hart, Concept of Law]. 25 WJ Waluchow accurately represents the current state of discussion, I think, when he proposes that the only thought about ‘morality’ that need enter into a debate about whether the existence and content of valid laws is determined by morality is just that ‘people do appeal to standards like the principles of equality, liberty, fairness and justice in assessing social institutions’ and that ‘these activities are not totally nonsensical . . . but are open to at least some degree of rational argument and assessment’; WJ Waluchow, Inclusive Legal Positivism (Oxford University Press, 1994) at 2 – 3, n 3. One of my aims in this paper is to raise some doubts about this claim by suggesting that the sense of the significance of nineteenth-century positivism arises initially on the basis of a quite specific idea about critical morality; namely, something like that morality’s content is, as it were, fully present anyway, whatever social institutions we might have. 26 On this criterion, both Aquinas and Kant are natural lawyers. For an account of Aquinas’s legal theory, see Finnis, Natural Law, supra note 17; for Kant, see Arthur Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy (Cambridge, MA: Harvard University Press, 2009) [Ripstein, Force and Freedom]. Both of these works nicely bring out how important legal positivity is for these classical theorists. 27 John Austin, The Province of Jurisprudence Determined, ed Wilfrid E Rumble (Cambridge: Cambridge University Press, 1995) at 18. Concerning the present state of discussion in legal theory, see e.g. Waluchow, supra note 25 at 2, for a statement of the verdict, which is becoming increasingly common: ‘Legal theory is in a perplexing state. Traditional

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Against this background, it seems worthwhile to ask why the separation thesis of the early positivists once seemed to be such big jurisprudential news. Why did it seem that Austin was making a decisive break in jurisprudence when he declared that ‘the existence of law is one thing, its merit or demerit is another’?28 Austin’s colleague at University College, Andrew Amos, praised Austin for having finally ‘delivered the law from the dead body of morality that still clung to it,’29 and these words give a clue to the matter. Amos inverts the usual formula whereby it is the letter – the posited law – which killeth. This is instructive because it suggests that the positivist’s demoralization of law had, at its origins, something to do with a view about what is living or genuine in the realm of morality. That is my thesis. The interest of positivism (though not its logical possibility) is connected to a certain picture of morality: morality as fully determinate and self-standing, apart from legal institutions. (Utilitarianism is perhaps the most developed version of such a general picture.)30 If this is right, then such a picture – and the corollary picture of law as an instrument in the service of such a morality – is tacitly in the background where ‘legal positivism’ is put forward, even after its utilitarian origins have been deemed inessential.

IV

Concerning the significance of Austin’s dictum, the textbook answer refers, not to a new view of morality, but only to the correction of a mistaken view about law: that the law comes, as it were, with a moral filter. As generations of undergraduates have been taught, by conceptually separating law and morality, you make room for the possibility of bad or iniquitous laws, laws ripe for repeal or reform. Listen to Hart: boundaries between rival views have been blurred to the point where one wonders just what the issues are and whether the protagonists are more often than not arguing at cross purposes.’ C.f., Ronald Dworkin, Justice in Robes (Cambridge, MA: Harvard University Press, 2006), intro & chs 7 – 8, esp at 238–40; James Allen, ‘A Modest Proposal’ (2003) 23 Oxford J Legal Stud 197 at 205. 28 Austin, ibid at 157. For praise of Austin’s achievement, see e.g. L Chipman Gray, ‘A Realist Conception of Law’ in Joel Feinberg & Hyman Gross, eds, Philosophy of Law, 3rd ed (Belmont, CA: Wadsworth, 1986) at 47. 29 Andrew Amos, The Science of Law 4, 5th ed (1881), cited in Hart, ‘Positivism,’ supra note 24 at 599– 600. 30 It is not the only version. Lockean natural rights also offer a picture of law as an instrument in the service of a morality which is, in principle, complete and fully available without the law. On this, see Arthur Ripstein, ‘Authority and Coercion,’ (2004) 32 Philosophy and Public Affairs 2; Ripstein, Force and Freedom, supra note 26 at ch 1.

322 UNIVERSITY OF TORONTO LAW JOURNAL What both Bentham and Austin were anxious to assert were the following two simple things: first in the absence of an expressed . . . legal provision, it could not follow from the mere fact that a rule violated standards of morality that it was not a rule of law; and, conversely, it could not follow from the mere fact that a rule was morally desirable that it was a rule of law.31

But suppose Hart is right here. Then surely there is a big puzzle: who, realistically, could this have been news to? who failed to see that one cannot simply infer from the fact that a rule violated standards of morality that it was not a rule of law? how could that be in question? Serious assertion of the proposition in question seems almost to need the context of a different civilization than ours. Greek philosophy first becomes conscious of itself partly by becoming aware of the way that laws, like customs and mores, can be like this or like that; and they can go badly off the rails. That Socrates is punishable as a wrongdoer according to law is, after all, just the Athenian crowd’s view of things. This is where legal philosophy starts.32 So it might be wondered: If the law of Bentham’s and Austin’s time and place was in need of reform, why not just criticize it? Why the felt need – as the standard story intimates – to prepare oneself to criticize it, by laying down that the law is criticizable, since, after all, its existence is one thing and its merit another?33 If we believe this story, we are left to infer that someone must have been thinking that laws aren’t the sort of things you can interrogate in terms of whether they are good or bad, or given for valid reasons or not, or whether it would be right or wrong to disobey them. But who among us was thinking this? Contemporary positivists are fortunate to be able to pitch their arguments against Ronald Dworkin, but here, we should be entitled to leave aside the issues joined in this more recent debate: the intelligibility of a revolution in jurisprudence shouldn’t have to depend on what comes a century later! I do not say that one can’t dredge up some pre-Hartian suspects to be the targets of the ‘early separation’ thesis. There is, for example, a careless remark of Blackstone’s that has perhaps proved a godsend for positivists looking for someone from the past to argue

31 See Hart, ‘Positivism,’ supra note 24 at 599; c.f., Hart, Concept of Law, supra note 24 at 207–8. Hart identifies his own ‘positivism’ with these claims: ‘Here we shall take Legal Positivism to mean the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality’; ibid. at 181 –2. 32 Some terribly mistaken operations of the law also are not exactly foreign to the JudeoChristian archive. 33 An analogy: people today criticize social morality, or orthodox religious views, on matters pertaining to homosexuality. But whatever our views on this, does anyone among us think that it needs first to be theoretically established that social morality or religious authority is criticizable?

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with.34 But that remark was taken piecemeal out of a context that contains statements contradicting it and that involved political currents irrelevant to general legal theory.35 In contrast, when we turn to the main traditions of pre-utilitarian legal theory, we find the possibility of iniquitous laws to be present, front and centre. Indeed, Aquinas’s or Kant’s discussion of such laws shows much greater awareness of the different questions raised by legal iniquity (e.g., the difference between injustice and barbarism: the difference between moral validity, systemic validity, and the empirical liability to suffer sanctions) than anything available in Austin.36 V

Can the old saw lex injusta non est lex – attributed to Aquinas37 – give the ‘early separation’ thesis the target it needs? Whatever this says, it is a far cry, as Finnis has shown, from denying the possibility of unjust laws, since it, in fact, begins by referring to them.38 It certainly does not say that that the law everywhere comes with a kind of in-built moral filter, such that injustice of certain kinds or degrees renders a rule incapable of being a true proposition of law of a given time and place. That reading comes from contraposition: if it is law, then it is just. But it is easy to think of statements of the same form that are poor candidates for contraposing: ‘the fair-weather friend is no friend at all.’ To make sense of ‘lex injusta . . .’ without attributing to St Thomas a love of paradox, we need to see that he makes both a social-positive and critical use of the same term. Such critical employments of descriptive terms are commonplace: ‘a true boy scout shares his cookies.’ Or to one’s legal spouse: ‘you say this is a marriage?’ Or even: ‘now that’s what I call an opera/ a steak/ a high dive.’ Speech seems to be plain enough here:39 and no one has ever 34 ‘[N]o human laws are of any validity, if contrary to [natural law]’; William Blackstone, Commentaries on the Laws of England (Oxford, UK: University of Oxford Press, 1825) vol 1 at 41. 35 Contrary to the polemical use which Austin, supra note 27, makes of Blackstone, the dominant scholarship finds Blackstone’s interest in natural-law ideas to be trivial (mere window dressing); some even claim Blackstone as a positivist. See John Finnis, ‘Blackstone’s Theoretical Intentions’ (1967) 12 National Law Forum 163, arguing that Blackstone had a definition of municipal law which have satisfied any positivist, but that his interest in natural-law themes wasn’t trivial. 36 See Kant, Metaphysics, supra note 16 at 6:316 – 37; on Aquinas, see Finnis, Natural Law, supra note 17 esp at ch 12. 37 But not quite accurately; see Finnis, Natural Law, ibid at ch 12; c.f., St Augustine, De Libera Arbitrio, translated by Robert P Russell, in ‘The Fathers of the Church’ (Washington, DC: Catholic University of America Press, 1968) Bk 1 at ch 5. 38 See Finnis, Natural Law, ibid. 39 I’m referring here to Hart’s claim that ‘plain speaking’ favours a ‘wide’ concept of law; see Hart, Concept of Law, supra note 24 at 209.

324 UNIVERSITY OF TORONTO LAW JOURNAL been tempted to understand such utterances as claiming that all operas, steaks, and friendships are filtered from the inside against disappointment, or that this way of speaking distorts the questions of appropriate attitudes when such important things as marriages fail to be all they should. Following Finnis, a provisional explanation will go something like this. Unjust laws are just that – they are laws in the positive sense all right – but, like bad marriages, they are not what they are supposed to be – ‘supposed,’ not in the sense of a merely external standard, but a standard that is presupposed to them and which they claim to satisfy, and which we shall need to bear in mind if we are to understand why we are interested in having such things in the first place.40 The point here is to describe a kind of structural doubleness in the realm of lex, roughly what we today call ‘morality.’ So the work of ‘lex injusta . . .’ is best described, not as filtering law from impurities, but as representing that impurities are bound to make their way into morality. Just as sound arguments are internally related to the possibility of sophistry (i.e., you can’t have one without the other), or just as good marriages are impossible without some bad ones, so the formula may be understood as saying that morality is incapable of fitting law with a filter – that the alienation of morality in posited rules which purport to express its requirements is part of its very possibility. The textbook teaching – that positivism rose up against a long-standing ‘moral filter theory’ of legal validity41 – belongs, the evidence suggests, to the realm of mythology. The myth proved useful because it allowed positivism to understand itself through a simple polemical focus. But today we need to understand that the ‘moral filter theory’ belongs, not to the history of natural law, but to that of legal positivism. It is a remaking of natural-law themes in the image of positivism, with morality cast into the role of an alternative answer to the positivist’s central question, that of the validity or existence-conditions of the law of a time and place. The main question before the nineteenth-century positivists seems to have been different. It was not, ‘What is it for law to exist?’ but rather, ‘What is it for law to exist?’ – which is, perhaps, better expressed by asking what kind of thing law is or what kind of thing exists when there is ‘law’ (the law of a time and place) as the positivist understands it.

40 See Finnis, Natural Law, supra note 17 at ch 12. Borrowing a device of Aristotle’s – that of the focal or exemplary case – we needn’t, according to Finnis, choose a ‘concept of law’; see ibid at ch 1. 41 C.f., Hart’s characterization of ‘the issue between Natural law and Legal Positivism’; Hart, Concept of Law, supra note 24 at 181; and earlier Hart, ‘Positivism,’ supra note 24.

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The difference between these questions can be brought out like this. Suppose Hart is right: whenever law exists, there are relatively efficacious primary rules of obligation combined with officially practised secondorder rules that identify some of those primary rules as valid members of the same system of law.42 It is a further claim that there is nothing of a conceptual nature beyond this to say about what kind of thing has its existence in a practice of this sort. The Thomistic answer puts law into conceptual relation with practical reason and basic human goods; the Kantian, into relation with external freedom. This is not to say that the positivist’s attack on the previously non-existent ‘moral filter theory’ does not later invite attempts to challenge positivism by defending views of that general form – views that leave the structure of the positivist’s question unchanged. The first clear instance of a ‘moral filter’ view comes (unsurprisingly, if my thesis is right) from a ‘legal positivist.’ Radbruch’s ‘conversion’ to a natural-law view seems to amount to nothing deeper than his taking his previous positivist understanding of law and tacking on a moral rider.43 42 See Hart, Concept of Law, supra note 24 at ch 5. 43 Similarly, Robert Alexy’s view seems to accept the question of ‘what determines the existence and content of the law’ as exhausting what there might be to say about ‘the nature and concept of law’; Alexy only proposes to add to the positivist’s answer a further moral element; see e.g. Robert Alexy, ‘Agreements and Disagreements’ (Address delivered at Law and Justice in Global Society, Plenary of the 22nd World Congress of the International Association for Law and Social Philosophy, Granada, 26 May 2005) (2005) Anales de la Cate´dra Fransicsco Sua´rez 39 at 700 [footnotes omitted]: ‘I have attempted to reply to positivism by defending a non-positivistic view . . . Positivism and non-positivism share what Raz calls the ‘social thesis,’ but they do this in different ways. Raz’s version is necessarily exclusive, that of non-positivism necessarily inclusive. Raz calls the necessarily exclusive social thesis . . . the ‘sources thesis.’ It says ‘that the existence and content of every law is fully determined by social sources.’ Non-positivism contests precisely this and maintains a necessarily inclusive social thesis, which claims that the existence and content of law necessarily depends not only on social facts but also on moral ideas. In this way, law and morality are necessarily connected.’ Unfortunately, this does look exactly like what Alexy says it isn’t – a single proposition asserted and denied. In response, one wants to say: either the positivist has brought law into view or he hasn’t. And if he hasn’t – if, for example, we feel that we don’t understand how the phenomena described differs from subjection to a procedurally well-organized gang – it seems merely desperate to toss an independent element, ‘not too immoral,’ into the conceptual mix. Perhaps the gang isn’t into any kind of extreme immorality. Perhaps Dworkin’s thesis in Ronald Dworkin, Law’s Empire (Cambridge, MA: Harvard University Press, 1986 at 224, that propositions of law are true if ‘they figure in or follow from the principles of [ political morality] that provide the best constructive interpretation of the community’s legal practice’ might also be described as a kind of natural-law theory in the image of positivism – natural law organized around an analysis of what it is for something to be part of the law of a time and place. A sign of this intimacy can be seen in the tendency for Dworkinian theory to strike the ‘soft-positivist’ as

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One further bit of evidence for the mythological status of the ‘moral filter theory’ is that Austin presents no argument at all against that theory, as one would expect him to do if it were a serious historical predecessor to his own view. Rather, Austin begins by defining what he calls law ‘simply and strictly so-called.’44 The ‘province of jurisprudence’ is to be limited by this definition; it will concern only the commands given by political superiors. From this definition, Austin’s separation thesis follows as a matter of course, since something more than law ‘strictly so-called’ will be needed to describe moral limits on the behaviour that can be politically commanded. Thus, if one tries to read Austin’s work as aimed against the ‘moral filter’ view, one is apt to feel that a substantial chapter has been omitted prior to his ‘First Lecture’ – one that would motivate and justify his restrictive definition, upon which everything that follows depends.45 Austin’s procedure is of more than merely historical interest. It is an exceptionally plain and therefore instructive example of a dialectical pattern which appears in contemporary work as well. Put it like this: the separation thesis isn’t really functioning here as a thesis at all, something that invites evidence or argument. It emerges as a corollary to a definition; its function is just to identify the object – positive law – which has been selected for investigation.46 With respect to that object, it amounts to a grammatical commonplace. It says that positive law is the kind of thing which is fitted to appear as the conclusion of a bit of practical reasoning, the kind of thing about which you can always intelligibly ask ‘why,’ to which a question about its merits is always applicable. That question is never turned back with ‘no reason, it’s just so,’ as it might be if someone asked, say, why good was to be done and evil something that can be incorporated – i.e., as one possible social practice for recognizing law. See e.g. Jules Coleman, ‘Negative and Positive Positivism’ (1982) 11 J Legal Stud 139; c.f., Philip Soper, ‘Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute’ (1977) 75 Mich L Rev 473; Dworkin, ibid at 125, 127– 8. But a different (and I think better) reading is that Dworkin is seeking a way of connecting law and morality that isn’t just the incorporation of a moral test. For his ‘interpretive’ stance might be understood as a rejection of just the picture of morality – as what is there anyway, whatever the law may say – mentioned at the outset of this paper. 44 Austin, supra note 27. 45 See ibid at 18. 46 C.f., Finnis, Natural Law, supra note 17 at 4: ‘Neither Bentham nor Austin advances any reason or justification for the definitions of law and jurisprudence he favors. Each tries to show how the data of legal experience can be explained in terms of those definitions. But the definitions are simply posited at the outset and thereafter taken for granted.’

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avoided. Since positive law is the kind of thing that can always come in for moral interrogation, it follows that its existence and content must be identifiable without recourse to moral reflection. This commonplace does not conflict with the observation that judges must often engage in moral reasoning to decide particular cases; insofar as this is so, legal reasoning – what judges do – goes well beyond reasoning about what the positive law is. So, from the start, Austin makes positive law the object of his investigation. Yet, clearly, acceptance of the foregoing commonplaces along with an account of the structure of positive law is not sufficient to make one into a positivist. Positivism only emerges with the claim that the concept of law exhausts itself in positive law. (Hence, it also involves a distinctive thesis about what judges are doing when they go beyond reasoning about positive law: they are turning to an independent subject, morality.) But the argumentative tendency that has persisted since Austin consists in supposing that one can defend positivism simply by offering an improved analysis of the structure of positive law – an analysis in terms of the commands of superiors, or of social rules, or of conventions for recognizing law, and so on. Important as such endeavours are for advancing our understanding of positive law, they don’t yet describe any sort of distinctive legal-theoretical position; the naturallaw theorist has always known that there are, say, the laws of Athens or Rome or Connecticut. Indeed, he has always known that notions of formal, systemic validity apply to such laws, even if he wasn’t especially interested in the analysis of such notions. How is it, then, that Austin and his successors could suppose that, in presenting positive law as a species of human command, they were breaking with the classical tradition in some important way?47 That, again, is the puzzle.

VII

The solution to the puzzle, I suggest, lies in this. When Austin says ‘the existence of law is one thing, its merit or demerit is another,’48 he means to affirm the independence of law and morality in both directions. His point is, not just that law always faces the interrogatives from practical reason (something to which everyone can agree), but, more distinctively, that everything relevant to the criticism or justification of the law is itself fully or determinately available independently of the law. 47 For some useful history on ‘law as command’ as a natural-law commonplace, see Gerald Postema, ‘Law as Command: The Model of Command in Modern Jurisprudence,’ (2001) 11 Philosophical Issues (Supplement to Nouˆs) 470. 48 Austin, supra note 27 at 157.

328 UNIVERSITY OF TORONTO LAW JOURNAL So construed, Austin’s dictum is no mere commonplace, for it says something controversial about how the law can be justified. Indeed, it is possible to see how it does join issue with ‘lex injusta,’ even on the more charitable, Finnisian account of it.49 For it amounts to the rejection of the thought that the law might have a critical aspect which could make it – as the analogy with marriage might suggest – its own court of appeal. The point may be put like this. Beyond the uncontroversial claim that there can be bad laws, what drives Austin and his successors is the thought that, as one pursues the chain of reason-seeking interrogatives that are put to the law, a sharp break must occur: one will have to leave the province of jurisprudence (with its human commands) and enter the domain of critical morality (with its standards of reason, binding on conduct in virtue of their merits). And how does Austin know that a sharp break – a change of ‘province’ – must occur here? Because, unlike the contemporary positivist, he has given some thought to ‘morality’ and he is a utilitarian. The break occurs just insofar as there is nothing lawlike – nothing that the law interprets or applies, only something it reckons to produce or bring about – as one moves to the higher or more fundamental levels of practical reason. That break is what gives point to the positivist’s delimitation of law, ‘strictly so-called,’ as whatever social facts make for positive law. Let us imagine, for a moment, an Austin who fell under the sway of the Sage of Ko¨nigsberg and even wrote a book promoting the great a priori system of the laws of Recht, as the reconciliation of private, bipolar freedoms. He might still have advanced his view of the facts which make for positive law (i.e., people expressing their wishes that other people do certain things, including wishes that some people make it likely that pain be waiting for people if those wishes aren’t satisfied). And others might still have responded with much-improved accounts of the relevant social events: obligation-creating and power-conferring rules, secondorder rules, efficacy conditions, conventions of recognition, and so on. But unless someone got a distinctively new (un-Kantian) idea about morality – an idea of morality as complete, without saying anything directly about law or right – it seems doubtful that there would have been any felt need to limit the concept of law (or of legal obligation and right) to what could be constructed out of such purely social materials; that would have seemed pointless, and even obscuring of important connections.50 Legal positivism, as such a limiting project, is an intellectual response (at first quite self-aware, then submerged in 49 See text accompanying note 40 above. 50 Someone might have said, in response: ‘[l]ike the wooden head in Phaedrus’ fable, a merely empirical doctrine of Right is a head that may be beautiful but unfortunately it has no brain’; Kant, Metaphysics, supra note 16 at 6:230.

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forgetfulness) to intellectual pressures created by such a new idea about morality. Turning this around, recall that, in response to Weinrib’s assertion that his Kantian theory is non-positivist because it refers to un-posited normative material, I asked in Part II above, ‘Why not say that the legal theory of Bentham and Austin is not positivist because “maximum average happiness” is a conceptual category that informs the content of the law without itself being posited by legal authority?’ The answer is that the sense in which ‘maximum happiness’ might ‘inform the content of the law’ is just that the law might tend to bring this goal about. The law’s relation to Kant’s ‘principle of right’ is different. The law interprets this principle; it specifies what it requires in particular cases. The utilitarian views legal justification in terms of something standing apart from the law. So it is understandable, against this background, that a legal theorist might be moved to say, ‘The existence of law is one thing, its justification quite another.’ (The emphasis here, I am suggesting, should fall on the independence – the self-standingness – of the moral material.) The Kantian views the justification of law in terms of abstract norms which are continuous with it, norms that depend upon the law for their concrete specification and realization.

VIII

Something in the structure of Austin’s discussion is apt to make this contrast hard to see. For, on the surface at least, Austin repeats the structure of a traditional natural-law theory, while reclassifying its parts into ‘law’ (strictly so-called) on the one hand, and ‘morality’ on the other. Thus, Austin acknowledges a higher – an unposited – level of right reason. And he displays his relation to the natural-law tradition by continuing to speak of this critical morality – which for him means the command to maximize happiness – as a realm of higher law; he even calls this morality ‘natural law’ or ‘divine law.’ So it can look like Austin is at one with the tradition in recognizing both a ‘higher law’ (right reason) and positive law.51 Hence, it might appear as if the only new thing happening here is just what the textbook story will later report: while the earlier tradition thought that ‘higher law’ filtered out bad instances of human law, the positivists understood that human law owes its existence or validity entirely to its sources, to being posited, and so on. But there is something radically new, something which Austin’s superficial faithfulness to the natural-law idiom masks. None of the preutilitarian legal theorists dreamed that, in the justificatory ascent from 51 Austin, supra note 27, esp, lectures 1, 2 and 5.

330 UNIVERSITY OF TORONTO LAW JOURNAL the positive laws of states, you came into contact with something that could, in principle, be more exacting in its guidance of human activity – subject only to the limits of information about what leads to what – than any human code itself. This is what utilitarianism promises. In fact, it seems to be no small part of its appeal. Recall how Sidgwick takes precisely this point to establish the ‘superiority’ of utilitarianism over all common sense moralities, which still depend on distinctly practical forms of reasoning, on ‘intuition’ and applicative judgement. Sidgwick pictures the utilitarian demonstrating to the ‘intuitionist’ that the principles of Truth, Justice, etc. have only a dependent and subordinate validity: arguing either that the principle is really only affirmed by CommonSense as a general rule admitting of exceptions and qualifications, as in the case of Truth, and that we require some further principle for systematizing these exceptions and qualifications; or that the fundamental notion is vague and needs further determination, as in the case of Justice; and further, that the different rules are liable to conflict with each other, and that we require some higher principle to decide the issue thus raised; and again, that the rules are differently formulated by different persons, and that these differences admit of no Intuitional solution, while they show the vagueness and ambiguity of the common moral notions to which the Intuitionist appeals.52

That justice ‘is vague and needs further determination’ is no surprise to the natural lawyer; it is one of his commonplaces. Indeed, that thought served him as a premise in the argument for the necessity of positivizing this region of morality (lex), for expressing it in authoritative rules and judgments (rules which might turn out, of course, to be moral corruptions). Some illustrations: it appears normally unjust to seize or withhold people’s property, or not to pay one’s debt, or to launch heavy projectiles into public spaces where they might hit people, or to make a great deal of noise affecting one’s neighbours. But circumstances can make a difference as to what justice requires in these types of cases. There may be a privilege to seize property when this can avert some injury.53 Or one might do no wrong in keeping one’s ship roped to another’s dock in a

52 Sidgwick, supra note 6 at 421 [emphasis added]; this sets the pattern for many contemporary arguments for the superiority of normative economic analysis over traditional, justice-orientated accounts; as, e.g., in the work of Kaplow & Shavell, which incessantly repeats the point about the indemonstrability of one or another of two conflicting applicative judgements; see Louis Kaplow & Steven Shavell, Fairness versus Welfare (Cambridge, MA: Harvard University Press, 2002). A mistake, here, lies in the assumption that such indemonstrability reveals an epistemic gap (see below), rather than just revealing the area in which the positive law has – in the nature of the case with this region of morality – work to do. 53 Plato, The Republic, translated by Desmond Lee (London: Penguin Books, 2007) at Bk 1.

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storm, even if one thereby destroyed the dock;54 and launching projectiles may even be a rightful activity if it is a beloved national pastime and the risk to people passing on the street isn’t too substantial.55 So, too, with noisy activities which disturb one’s neighbours, if what is going on is that one’s neighbours are peculiarly sensitive to the noise, say on account of a medical condition,56 or if the general use of property in the vicinity is already of the noisy kind.57 And so on. What is new to utilitarianism is not the discovery that everyday morality is vague and requires circumstantial judgments, but rather a certain interpretation of this commonplace: viz., as revealing an epistemic gap in such morality and hence the desirability (or even the necessary existence) – quoting Sidgwick – of ‘some further principle for systematizing these exceptions and qualifications . . . a higher principle to decide the issue thus raised.’58 On the classical view, what was thought to be required was a lower principle: the completion of such a morality of rights and obligations through operations of positive rule-making and judgment which constitutively give content to more abstract notions of justice. On the later view, the kind of thing that law is might be expressed by saying, ‘No justice without law.’ That is, the law is a necessary component of justice. Obviously, this presents one necessary connection between law and morality, even as it allows that the law can be unjust.59 There is no question here of fitting law with a ‘moral filter.’ Rather, ‘No justice without law’ says, ‘The judgments of public legal authority must be binding, even when they get things wrong, if this region of morality (mine and yours) is to be possible.’ The utilitarian’s gap-based interpretation of the indeterminacy of justice will, in contrast, show itself in a thought like this: what is seen in the exceptions to the requirements of justice mentioned in the cases above is not that positive law is needed by morality in any essential way (though, human nature being what it is, it may be unwise to try to get along without the law) but that what would ordinarily be a wrongful act can always be rendered right by an appropriate calculation of better consequences. What made this gap-involving interpretation of morality so compelling to people in the nineteenth century is a worthwhile question.60 A reasonable guess would refer to a wish to reduce the dependence of practical thought on operations that are distinctively practical; 54 55 56 57 58 59

Vincent v Lake Erie, 124 NW 221 (1910). Bolton v Stone, [1951] AC 850 UK (Eng). Rogers v Elliot, 15 NE 768 (1988). Collins v Wayne, 76 A 24 (1910). Sidgwick, supra note 6 at 421, cited at note 52 supra. For example, the law might fail to recognize the presence of whole classes of persons to whom such a morality extends; see Hart, Concept of Law, supra note 24 at 124. 60 And obviously no less compelling to some today; c.f., Kaplow & Shavell, supra note 52.

332 UNIVERSITY OF TORONTO LAW JOURNAL viz., judgment that endeavours to read what matters about the situation, case by case. Austin and Bentham may have been less self-conscious about such motivations than later figures (like Holmes or Posner), but we may presume, in the wildfire with which nineteenth-century utilitarianism takes hold, that thoughts like this are operating in the background. IX

To sharpen things by contrast, another word might be said about the traditional understanding that is challenged here. It proceeds from an awareness of the way the subject matter of action is inexhaustibly indefinite and cannot be managed, at least beyond a certain point, by general principles that are correct without qualification.61 This awareness tends to be revealed by two of its consequences. First, the approach to justice is enumerative, interpretive, or bottomup. Aristotle, for example, explains justice, not through the construction of any notionally ideal standpoint, but through observation of salient patterns of reasoning in the Attic law of his day; from this, he develops his account of two abstract forms of justice: one pertaining to the sharing of burdens and benefits within a community, and the other to pair-wise relations of wronging.62 Second, when one ascends from the law to these structures of justification or ‘forms of justice,’ one encounters principles which are far less determinate than is the law itself. Sticking to private law, one finds (in Aristotle) the very abstract thought of pair-wise doing and suffering as subject to a norm of equality; or, interpreting this, Kant’s ‘principle of right,’ which says that exercises of choice must coexist with the freedom of others; or, specifying this, various maxims such as sic utere tuo, ut alienum non laedas; or even just the nearly empty precepts of Justinian to live honestly, hurt no one, and render everyone his due.63 (That there is an other, and that this is normatively significant – the other has a ‘due’ – is the primitive thought here, the germ of the legal part of morality.) Now these very abstract ‘principles,’ if we can even call them that, are a far cry from supplying external tests for the moral validity of specific legal rules. Hence, there is an understandable tendency to complain that if this 61 I’m indebted in this and the next paragraph to David Wiggins, ‘Neo-Aristotelian Reflections on Justice’ (2004) 113 Mind 451 at 477–512. 62 See Aristotle, Nicomachean Ethics, translated by Terence Irwin (Indianapolis, IN: Hackett, 1985) at Bk 5. 63 See Aristotle, ibid at Bk 5; Kant, Metaphysics, supra note 16 at 230–1, 236 –7; Inst 1.1 (translated by JB Moyle).

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is what the critical part – the ‘natural‘ part64 – of law consists in, it is quite empty and useless.65 This familiar charge has a point, which is that such notions as ‘render everyone their due’ or ‘sic utere tuo . . .’ are evidently just placeholders – or accounts of the abstract unity – of a certain type of moral concern, a type of reason engaged by situations in which the other is there, this is his, he’s holding that, and so forth, so there are certain things you mustn’t now do. Naturally, such abstract principles presuppose an account of what others are entitled to, or of one’s obligations to bring consideration of their interests to bear on one’s choice of action. But this will appear to be an objection only if one has already adopted the ‘gap’ interpretation of justice and its precepts. Otherwise, what needs to be said is just this: it is not because of any epistemic gap, but is in the very nature of the case that, in this area of morality, no account can be given, after a certain point, except through authoritative judgment and examples. Private law expresses this by pervasively adopting the principle of ‘reasonableness’ as an interpretation of what is owed to the other. After that, it makes authoritatively binding whatever singular judgment the ‘fact-finder’ makes.66 (This shows what is wrong with the notion that, as is sometimes said, ‘we lack a theory of negligence.’67 This is not a neutral observation that the economic utilitarian can be thought to share with the theorist of corrective justice. For the spirit in which the utilitarian is apt to say this overlooks the fact that the law itself is an elaboration of the content of an idea of justice. The law of negligence doesn’t just arrive thoughtlessly into the law of all modern legal systems. Rather, this body of law is part of a 64 But see Hegel’s appropriate point in the GWF Hegel, Philosophy of Mind, translated by AV Miller, pt 3 of The Encyclopaedia of the Philosophical Sciences (Oxford: Clarendon Press, 1971) s 2 at § 502: ‘The phrase “Law of Nature,” or Natural Right, in use for the philosophy of law involves the ambiguity that it may mean either right as something existing ready-formed in nature, or right as governed by the nature of things, i.e. by the notion. The former used to be the common meaning, accompanied with the fiction of a state of nature, in which the law of nature should hold sway; whereas the social and political state rather required and implied a restriction of liberty and a sacrifice of natural rights. The real fact is that the whole law and its every article are based on free personality alone – on self-determination or autonomy, which is the very contrary of determination by nature. The law of nature – strictly so called – is for that reason the predominance of the strong and the reign of force, and a state of nature a state of violence and wrong, of which nothing truer can be said than that one ought to depart from it. The social state, on the other hand, is the condition in which alone right has its actuality: what is to be restricted and sacrificed is just the wilfulness and violence of the state of nature.’ 65 This was a favourite complaint of Kelsen, supra note 5, and more recently of Posner, Problems of Jurisprudence, supra note 5; Posner, ‘Concept,’ supra note 5. 66 See Martin Stone, ‘Focusing the Law: What Legal Interpretation is Not’ in Andrei Marmor, ed, Law and Interpretation (Oxford: Clarendon Press, 1995) 131. 67 Richard Posner, ‘A Theory of Negligence’ (1972) 1 J Legal Stud 29.

334 UNIVERSITY OF TORONTO LAW JOURNAL reflective theory of what the other is due; it is invented to give shape and unity to judgments of the form ‘you mustn’t do that – it’s his,’ upon which the law continues to depend. Interpreted as ‘the requirement of reasonable care,’ ‘negligence’ is itself a placeholder; and, like the still more abstract notion of ‘corrective justice,’ its content will have to depend upon on our shared capacity to make situational judgments of the relevant form – e.g., ‘X shouldn’t have turned right, since Y was standing there’ – in the particular case.)68 Now because what one finds in this scheme as one ascends from legal verdict to legal rule to more abstract principles (and finally to so-called natural-law precepts) is merely an increasingly abstract characterization of the kind of reason (or the form of judgment) engaged by a concern with justice in particular cases, there is a point to saying that critical discourse about law – the moral validation or criticism of the law – takes place, here, at least partly within the domain of the ‘legal.’ For the chain of reasons comes to rest in something which is valid simply as a matter of its ‘merit,’ something which expresses what it is to recognize ‘another’ as a source of moral claims. At the same time, however, a specification of the moral content in question – that is, what is due to others in various circumstances – is something that is both epistemically and constitutively dependent on a legal practice offering concrete judgments of that same form, ‘you mustn’t take that – it’s his; you mustn’t do that – he’s there.’ Perhaps it will sharpen things to add that a jurist operating with this sort of natural-law scheme is apt to feel that the main normative problem is not whether one can make a justificatory ascent from the positive law to something that has genuine moral force. His question will more likely be whether the descent into law – into determinatio by public rules – can be, or has been, appropriately carried off. That is, it will appear obvious that with the cry, arising wherever people share the same natural world – ‘you’ve done me wrong’ – we are in the realm of morality, if there is such a realm. The problem is to find an appropriate role for law. How can the rights of the other be made publicly determinate and secure in a way that is consistent with their moral basis? I would venture to say that this appears to be the question directly addressed in the common law, as opposed to contemporary theories about the common law, which presume that the moral basis of personal and proprietary rights could only be shown by ascent to a theory which

68 On the mistakenness of thinking of ‘efficiency’ and ‘corrective justice’ as competing theories of tort, in a uniform space of explanation, see Martin Stone, ‘The Significance of Doing and Suffering’ in Gerald J Postema, ed, Philosophy and the Law of Torts (Cambridge, UK: Cambridge University Press, 2001).

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‘fits’ the legal data points but which somehow makes concrete normative demands independently of them. To summarize: an important motivation for the law-delimiting project of nineteenth-century positivism is not the awareness of the possibility of bad laws, and not even any new idea about law, except insofar as certain pressures are exerted on the concept of law by a new idea about moralitymorality as fully codifiable independently of the law. If someone begins with this picture of morality (utilitarianism, though not unique in entertaining it, has gone the furthest in developing it), it becomes intelligible why she might feel a need to insist on a sharp break in the structure of legal justification; that is, to insist on the ‘separation’ of law and morality. The point for the utilitarian, you might say, is not just to affirm that law can be good or bad (for everyone already knows that), but to get law out of morality, so that the higher commands of morality won’t be confused with law.69 X

The foregoing considerations lead into a number of different paths. I’ll conclude by mentioning just two, one concerning Lon Fuller and the other concerning HLA Hart.70 Both Fuller and Hart anticipate the argument I have made. A FULLER’S MORALITY OF LAW

My general prescription (viz., we should ask what we mean by ‘morality’ when we raise the ‘separation’ question) is anticipated by Lon Fuller, who begins his book, The Morality of Law, by complaining that, when law is compared with morality, ‘it is as if everyone knows what the second term embraces.’71 This gives a clue to what Fuller thought he was up to. He wanted to problematize the notion of ‘morality’ (the grounds relevant to assessing the law’s merits), not to argue that there is a necessary connection between law and morality in a sense of ‘morality’ which his readers would find fully obvious in advance.72 Hence, his book is about 69 It is instructive here to reread Bentham’s commentary on Blackstone with these points in mind. His emphasis seems to be this: just because something is law, it doesn’t follow that it passes the tests of utility; see Jeremy Bentham, The Collected Works of Jeremy Bentham: A Comment on the Commentaries and A Fragment on Government, ed by JH Burns & HLA Hart (Oxford: Oxford University Press, 2009). That is the contrapositive of the first of the two simple ideas that Hart said the positivist wanted to insist on; see text accompanying note 31 above. 70 See Part XB below. 71 Fuller, supra note 1 at 3 –4. 72 I think this is missed in the criticism Hart made of Fuller’s argument, which suggests that Fuller’s principles of legality are no more a morality than, say, precepts as to

336 UNIVERSITY OF TORONTO LAW JOURNAL a region of morality which says something directly about law, not merely about standards of conduct or ultimate values which are fully accessible even apart from the idea that law is to be put to work in their service. Now Fuller suggests that such an ‘internal’ morality of law consists of procedural principles which serve to distinguish the rule of law from managerial control. But, in responding to Hart, Fuller mentions a substantive connection between law and morality, something which goes beyond the thesis for which he is known: What is generally missing . . . is any recognition of the role legal rules play in making possible an effective realization of morality in the actual behavior of human beings . . . ‘Do not take what belongs to another’ is about as trite an example of a moral precept as can be found in the books. But how do we decide what belongs to another? To answer that question we resort not to morals but to law.73

We might develop this as follows. First, the precept, ‘respect the other’s possessions,’ is an a priori moral precept. Its validity does not depend on any sources, save those (as it were) of God, pure practical reason, and so on. It is a specification of the still more abstract precept, ‘give others their due,’ external possession being one aspect of this ‘dueness’; personal rights, like the right to bodily integrity, being another. Yet, second, the articulation of ‘dueness,’ being formally subject to conflicting claims, is necessarily mediated by, or structured in terms of, a principle of reasonable reciprocal forbearance; the right of one person must be compatible with the equal (or like) right of others. Third, what is reasonable in such reciprocal relations is, in principle, indeterminate. Morality might tell us a priori that we are bound to respect the boundaries of persons and property, but it affords us no way of deducing just what, in various circumstances, those proper boundaries are. Hence, the content of such rights must be spelled out through applicative judgments that are not deductively accessible. Fourth, such judgements cannot, consistently with the reciprocal form of right, be laid down privately: That would amount to a merely unilateral determination of right, the subjection of one person to the choice of another. So the realization of a regime of reciprocal right requires public sources, as grounds for private judgements, and public procedures

effectiveness in poisoning (e.g., make sure the victim can swallow the poison) are a ‘morality’ of poisoning; See HLA Hart, Book Review of The Morality of Law by Lon Fuller, (1965) 78 Harv L Rev 1281. To begin with, Fuller’s principles seem to be constitutive of, not an instrumental means to, legality. Second, Fuller is making the claim that, in recognizing such principles as constitutive of legality, we recognize the achievement of legality as something of moral value. 73 Fuller, supra note 1 at 204 –5.

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where private judgements conflict. In more familiar terms, ‘do not take what belongs to another’ finds application only by way of its articulation in a system of law. That is, it is to the law that we must resort to find out what exactly is required by respect for persons and their possessions. So law, on this account, is a certain region of morality, one in which public authority is needed to play a constitutive role. Otherwise put, positive law has a constitutive moral aim – to realize the conditions of rightful possession and reciprocal forbearance. And this aim makes relevant certain proprietary ways of assessing its merits. In this sense, the law is its own court of appeal. Of course, I am forcing Fuller in a certain direction. His phrase ‘an effective realization of morality’,74 is ambiguous. On one interpretation, it recalls the thought that, in the world as we have it (one of scarcity, selfishness, etc.), the best strategy for realizing morality is the indirect one of creating and applying legal rules. Rights to private property, for example, might be conducive to overall welfare, but such rights might be subject to various insecurities if not for the assurances afforded by legal authority. Law, on this interpretation, would be what nineteenth-century positivism suggests it is: a source-based instrument in the service of a morality which is, in principle, complete without it.75 But on a second interpretation of the phrase, it points towards a conception which gives genuinely contrasting point to such positivist pronouncements about law: a conception which finds the law of a time and place related to critical morality, not as an instrument to an independent blueprint for social life, but as a determining content to a more abstract form. On this conception, to grasp the relevant moral ideas (‘rightful possession’) is to grasp the rational necessity of a form of judgment which is public, determinate, authoritative, and has reciprocal ‘right’ as its object – in short, legal judgment. This goes beyond saying that ownership is made effective through positive law; it says, also, that there is no such thing as rightful possession apart from the judgments of civil authority. (‘[O]nly in a civil condition,’ as Kant puts it, ‘can something external be mine or yours.’76) B HART’S ‘BASIS OF MORALITY’

According to HLA Hart, ‘having something as one’s own’ is the very ‘basis of morality.’ It is the basis of morality, not just because the notion of ‘ownership’ finds application in every case of human community (as Hart 74 Ibid. 75 As mentioned previously, it is not just the utilitarian who entertains this picture but also any theorist who takes rights in property as an original starting point for the instrumental justification of legal authority; see Arthur Ripstein, ‘Authority and Coercion,’ (2004) 32 Philosophy and Public Affairs 2. 76 Kant, Metaphysics, supra note 16 at 6:256.

338 UNIVERSITY OF TORONTO LAW JOURNAL observes), but also, presumably, because it articulates the primitive sense of ‘another person’ as a source of moral claims, as an ‘equal’ among others of the same kind. It is on this idea that all further moral concern with persons and their ends (such as that expressed in calls to improve their welfare) would seem to depend.77 In chapter eight of The Concept of Law (‘Morality’), Hart puts the point like this: [O]utside the law there is a moral conviction that those with whom the law is concerned have a right to mutual forbearance from certain kinds of harmful conduct. Such a structure of reciprocal rights and obligations proscribing at least the grosser sorts of harm, constitutes the basis, though not the whole, of the morality of every social group. Its effect is to create among individuals a moral and, in a sense, an artificial equality to offset the inequalities of nature.78

The morality in question here would encompass protection for person, property, and some promises – in short, the wrongs which are universally the subject of private-law rights. (Such rights determine, further, the core forms of criminal wrong-doing – as actions intentionally disregarding them.) Now, given this, might we not wonder whether Hart’s starting point in The Concept of Law – viz., the truism that wherever there is law, conduct is made ‘in some sense obligatory’79 – isn’t needlessly unspecific? Could it not have been said no less safely that wherever there is law, we find, not just ‘obligation,’ but rather that more specific kind of obligation which involves forbearance rather than active service and which is annexed to another’s right80; that is, we find a development, or determinate working-up of ‘the basis of morality,’ the part of morality which involves reciprocal right and obligation? Hart suggests as much. The morality of ‘mutual forbearance’ regarding person and property is elaborated in every legal system, he says, and necessarily so. This can be seen from a survey of central cases of law, but its necessity can also be grasped by understanding the viability conditions of a formal system of legal norms, given such facts about human life as scarcity, mutual vulnerability, and so on.81 In ‘The Minimum Content of Natural Law,’ Hart details how the characteristic 77 If persons were not ‘ends in themselves,’ what would be the point of seeking increases in their welfare? Hart expresses the point like this: ‘If there were not these rules [of protection for persons, property, and promises,] what point could there be for beings such as ourselves in having rules of any other kind?’; Hart, Concept of Law, supra note 24 at 194. A useful elaboration of the same point can be found in Alan Brudner, The Unity of the Common Law (Berkeley, CA: University of California Press, 1995). 78 Hart, Concept of Law, supra note 24 at 164–5 [emphasis added]. 79 Ibid at 6, 82. 80 C.f., ibid at 194 [emphasis in original], where this is, in effect, acknowledged. 81 See ibid at 193 ff.

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content of the law (‘the system of mutual forbearances,’ ‘rules [which] do in fact constitute a common element in the law and conventional morality of all societies’)82 can be explained by reference to pre-legal morality along with certain instrumental reasons to expect any legal system (identified in Hart’s formal way) to lend its resources to the development of this morality, whatever else it might set its sights to. So, on Hart’s account, there is an intimate handshake between the morality of right and positive law. The law, conceived as a source-based system of rules, could not be stable and efficacious without lending itself to this morality; equally, the effective realization of such a morality requires its development in authoritative, source-based rules. Given this, might we not regard the morality of right as a ‘provisional’ or protolegality? That is, of course, what Kant means by ‘natural right.’83 Someone might say that Hart’s reason for introducing right-regarding morality – not as a provisional legality, but merely as a basic part of extra-legal morality – is a wish to keep law and morality distinct. But that would be putting the cart before the horse. Remember, the official point of Hart’s investigation is not, as with earlier positivisms, to give a representation of law after disallowing the use of any moral materials. It is to describe the distinctive features of municipal legal systems, with an eye towards elucidating the relations among law, morality, and coercion.84 If, then, it should turn out that law, in Hart’s formal sense, typically elaborates the content of a basic part of morality (reciprocal right), why shouldn’t legal theory wish to make this, and the reasons for it, perspicuous? At this point, I think it will be seen that what really separates Hart’s ‘positivism’ from those classical natural-law theories that represent law as a continuation of morality85 is not any disagreement about the legal or pre-legal facts, and not, as the mythology has it, any divergence over the possibility of wicked laws, but mainly this: in picturing the transition from pre- (or proto-) legal morality to full-fledged legality, Hart has in view an exclusively instrumental interpretation of ‘an effective realization of morality’ (the first of our two interpretations above); morality’s dependence on law is merely a matter of various empirical defects or inconveniences of the pre-legal state.86 This is not to say that Hart is a utilitarian. 82 Ibid at 193, 200. 83 See e.g. Kant, Metaphysics, supra note 16 at 6:237, 242. 84 Hart, Concept of Law, supra note 24 at 17. An account of law given on the basis of a restricted class of non-normative materials was something the early positivist strove for. Hart, in contrast, presents his Austinian starting point – of asking how generic ‘legal obligations’ differ from commands backed by threats – as simply the best ‘pointer to the truth’ concerning law as a distinctive social phenomenon; ibid at 17, vi. 85 See text at Parts VIII and IX above. 86 See Hart, Concept of Law, supra note 24 at 91 –9.

340 UNIVERSITY OF TORONTO LAW JOURNAL Nonetheless, it is, perhaps, utilitarianism which has gone furthest among moral theories in representing law as rationally necessitated only by its offering an instrumental solution to what goes wrong in moral life without it; that is, in representing morality as complete without the law so that, given more favourable human dispositions and circumstances, law would be superfluous.87 The second interpretation of ‘an effective realization of morality’ suggests a different rationale for legal authority, one which derives from the demands for judgment inherent in a morality of reciprocal right. Grant that each of us is morally bound not to take or diminish what belongs to the other, and grant that we are well intentioned. Yet, there is no actually determinate ‘mine’ and ‘thine’ for us to respect apart from some rightful way of determining this in the circumstances of innumerable particular cases. A natural indeterminacy makes what is rightful among pairs of agents a matter to be publicly decided ultimately on the basis of ‘what is reasonable under the circumstances.’ And this is not because of any gap in our understanding of what is owed to the other but because it is, in principle, the case that, with this sort of question, no account can be given except by way of judgments in particular types of cases. What can be hoped for, then, is not a fully determinate a priori norm of right but a rightful way of determining such a norm, and, for this, civil authority is required. The law, on this account, is a constitutive and not just an instrumental means of making a certain region of morality possible. XI

If one thinks, with Kant, that there is a region of morality which comprises a provisional legality and then asks the guiding question of contemporary legal theory – whether one should draw the limits of ‘law’ on the far- or near side of this moral material – I suspect one will quickly find oneself in the territory of ‘who cares?’ or ‘say what you like.’ In contrast, instrumentalism does give the positivist’s question an intelligible motivation. If assessing the law’s ‘moral merit’ is a matter of considering how 87 Compare Raz on authoritative rules quite generally: ‘The case for authoritative rules depends on the advantages of the indirect approach, the attempt to maximize conformity with certain reasons (the underlying reasons) not through compliance with them but through compliance with an alternative set of reasons, the rules . . . This has long been recognized in the discussions . . . of various forms of ruleutilitarianism’; Joseph Raz, Practical Reason and Norms (Oxford: Oxford University Press, 1999) at 193. I suspect that this articulates early positivism’s animating thought, or at least one clear rationale for insisting on a sharp break in the justificatory ascent from the ‘province of law’ to that of morality. On this account, it appears that there is nothing rule-like at the ground level of practical reason.

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well it advances goals that can be fully specified independently of it, it makes sense to want to draw the limits of law as against morality in terms of the law’s positivity. That is why the historical association of positivism and utilitarianism is no accident. The motivation of positivism is originally the endeavour to exhibit the law perspicuously as a special kind of instrument. In light of this, and given the prevalence of positivism, it is perhaps no surprise to see that normative legal theory today tends to be approached as an exercise in applied ethics. You start with an ethical theory and ask what results it requires in the political sphere. Then, you turn to the law and see whether it tends to bring about those independently specified results. If it doesn’t, you are in a position to recommend reforms. If I am right, this familiar style of normative theory goes hand-in-hand with positivism because a story about legal justification along these lines is apt to be in the background when ‘positivism’ comes to seem urgent and important. These remarks point to a further moral. Today, it is common to distinguish ‘normative’ jurisprudence (where the question of the justification of the law is central) from ‘analytic’ jurisprudence (where the question of ‘the nature of law’ and the correct formulation of positivism is central). Those who draw this distinction typically suggest that the two sets of questions are mutually irrelevant and, specifically, that the question of ‘positivism,’ and its correct formulation, is independent of questions concerning the normative interpretation of departments of the law. This, my argument implies, is a mistake. At a time when philosophical questions concerning ‘the nature of law’ are thought to float free of political and moral philosophy, it may be a helpful corrective to consider that positivism is really, at its origins, a new idea about morality, and not, apart from that, any previously uncontemplated thought about law and its sources. Although these questions concerning contemporary positivism (and its self-understanding as an autonomous inquiry) lie somewhat at a remove from Weinrib’s concerns, his work goes far towards making such questions perspicuous, precisely by presenting an alternative framework for understanding and justifying law. To give his framework a quite general description – one which also covers some of the fruitful work it has now inspired – I would speak of the presentation of law as a part of morality, without being any kind of applied ethics.88 That seems like a fitting phrase for what has been going on for a while in Toronto, where the questions of legal theory have a new and distinctive sound.89

88 This idea is taken up explicitly by Ripstein, Force and Freedom, supra note 26. 89 I’m grateful to Arthur Ripstein for making some helpful suggestions concerning this last section.