Well, I’m back from my conference, and all went better than I could have hoped with my talk. Lots of questions afterwards, but that’s pleasing in itself (it means that there’s something there which makes people think).
It was interesting that my own talk fitted in with the general tenor of the conference. In essence, there is a battle at the moment between those who seek to explain private law according to its own internal coherence and those who seek to explain private law according to external factors (eg, law and economics, social theory, etc). And then there are those, like myself, who believe that private law must have a measure of internal coherence, but that external moral and policy factors must also play an important part in shaping the way in which the law develops (pluralists). For the non-initiated, private law is that area of the law which deals with private relationships between individuals - contracts, tort, restitution etc.
The idea that private law must be understood purely according to its own terms is a concept which has risen to prominence with the theories of Professor Ernest Weinrib. His argument is that “normative corrective justice” justifies all private law (ie, tort, contract and unjust enrichment). He draws on Aristotle’s concept of corrective justice, which involves a restoration of equality once there has been a gain on behalf of one party and a loss at the expense of the other. It is the correlativity between the parties which creates the liability: one person gains at the other’s expense. This confines the law to a consideration of the bipolar private transaction between the two parties. The opposite of corrective justice is distributive justice, which involves a consideration of the relative deserts of the parties and a distribution accordingly.
Drawing on the analysis of Immanuel Kant, Weinrib does not see loss and gain in material terms, but in normative terms. The parties can be regarded as notionally equal at the beginning of their interaction because of their status as “self-determining agents”. Self-determining agency means that each individual must have respect for the freedom and free will of others. When a right of a self-determining agent is breached, the plaintiff suffers a normative loss and the defendant suffers a normative gain. This can only be rectified by payment of damages, which restores equality between the parties.
Weinrib argues that instrumentalist concerns (eg, economic factors), moral values or any factor “extrinsic” to private law should not enter into the resolution of private law disputes. To allow such factors to intervene destroys the internal intelligibility of the private law.
Belief in Weinrib’s theory is like a religious belief. Either one has faith that the theory is true…or one does not. I am an infidel. At heart, I just cannot accept that private law cannot take into account any moral values (after all, I am an equity lawyer). I do believe that Weinrib’s theory is important, as it has refocussed the attention of private lawyers towards the necessity of a direct connection between plaintiff and defendant. As Weinrib posits, it is important to be able to justify to a particular defendant why he is liable to that particular plaintiff in that particular measure. But I do not believe that corrective justice is the only justification which can be used. I also think other analyses are highly useful, as well as considerations of moral principle. And I think it is impossible to separate out corrective justice and distributive justice in the way in which Weinrib seems to think is possible.
I don’t think I managed to convert any of the corrective justice scholars who attended my talk en masse - but nor did they manage to convert me. In the end, we had to agree to disagree. Fortunately the disagreement was very civil. And I discovered that I had many pluralist/distributive justice allies! Hurrah!
All in all, it was a very productive conference - one of those events where there is lots of interesting material and many people to meet and with whom I could exchange ideas. In fact, there was too much interesting material - because there were parallel sessions, I wasn’t able to attend all the talks I would have liked to have attended. Oh well, I’ll just have lots of reading to do when I go on maternity leave.
22 Comments
Do I detect the ghost of Kelsen past, where law may be defined only in terms of law?
Indeed. This was a point made by one of the attendees…
As far as I’m concerned it’s really impossible to describe law only in terms of law. One has to keep in mind that it is law and not something else, but a law is not fully explicable without reference to external concepts.
As an outsider it seems that private law exists specifically to balance moral factors such as ‘fairness’. Tort covers restitution for damage to individual interests and contracts to ensure one party doesn’t have the sole benefit in an agreement.
Hurrah! Your observation vindicates my own position - which is that any theory which seeks to justify private law without recourse to morality or other aims will ultimately seem pointless to non-lawyers…
I have to say, this is a topic I’m very interested in.
Some points/ questions:
as I understand Weinrib he argues that law is its own morality (the ghost of Lon Fuller?).
If law can justify itself in its own terms, why does it need recourse to other moralities, purposes, and the like? Isn’t that a sign of failure on the part of law?
Is morality its own justification or do we need to find alternative or supplimentary forms of justification for morality as well? If not, why should law be any different?
If the law is justified by extrinsic moralities or purposes, how can we say that law is impartial in regard to the morality or purposes those obligated by law choose to cultivate or pursue? If you’re right, LE, then individuality and moral pluralism will destroy law or vice versa.
That some laws have their origin in morality does not also mean that law is justified by morality. For example, the selection of customs that were made law in Ancient Rome and Athens were justified by an act of authorisation; the laws were not justified because of their customary origins. How could they be, each city-state united distinct tribes with different customs. They were united by an agreement to be bound by law.
If there’s one thing I don’t like about Weinrib’s thought it is the emphasis Kant has in his work. But I do like his side-glances to Oakeshott, for obvious reasons.
LE, please let us know if you publish your paper, otherwise I’d love to see a draft of your paper. I’d very much appreciate that.
ooooh! I’m so excited to find someone else who loves this topic.
I don’t think Weinrib can escape justification according to external morality or justifications. Robert Rabin has commented as follows:
[from Robert L Rabin, ‘Law for Law’s Sake’ (1995) 105 Yale Law Journal 2261]
So his own Kantian structure has individual freedom as an external justificatory norm. To accept Weinrib, you have to accept that individual freedom is the goal we are all working towards.
Personally, I do not wish to go down the path of some postmodernists and say all law is politics or that all systems are morally relative. That way lies chaos. I believe that systems have to be impartial, and as such, where distributive justice concerns enter into private law, they should do so in a way that is structured, coherent and well-justified.
But I do think there are some competing justifications for private law remedies which extend beyond correlative corrective justice concerns.
“I don’t think Weinrib can escape justification according to external morality or justifications.”
I think he can, LE. The autonomy of an agent, or his or her free will, is a postulate of law or to use Weinrib’s terminology, it is intrinsic to law; you could not have law, at least as I understand it, if human beings were not free, autonomous agents.
If that is right, and I think it is, then even if we accepted that “individual freedom is the goal we are all working towards”, it would nonetheless be a goal intrinsic to law, and it certainly isn’t the only goal intrinsic to law, since order and justice are ‘goals’ of law as well.
So what is “justice” intrinsic to law? I cannot see that justice can be understood without reference to morality, unless one is saying that justice and morality in law are the same thing.
One of my concerns with Weinrib’s concept of normative loss and gain forming the backbone of private law is that normative loss and gain is such a malleable concept. It really depends on how one defines it. Where, in any case, do we derive such norms from (eg, the essence of contract is performance?) Surely this depends on a whole set of extrinsic considerations and assumptions?
If all these things become ‘goals’ intrinsic to law, then law becomes utterly teleological. I much prefer Hayek’s argument that these good things are by-products of law, and to accept that it’s hard (although not impossible) to design laws that will produce good byproducts.
LE, you may be interested to know that various Oxford restitution and phil founds students formed a facebook group called ‘Using the word ‘normative’ does not magically improve your argument’.
Tee hee, I think I should join that group. Sometimes I’m really not sure what people mean specifically when they use the word “normative”.
LE, I’m saying that the law in civil association defines what is just and unjust in respect of our relations as citizens. You can’t simply retreat to the environs of moral justice, because as MacIntyre would say, “Who’s Justice” are you going to rely on?
As two your second point, LE, I don’t have an answer off the top of my head, as I come to this problem from the direction of political philosophy. But to pick-up SL quip, I don’t particularly think “Where, in any case, do we derive such norms from (eg, the essence of contract is performance?)” is the right question, if only because ‘derive’ and ‘norm’ are, I think, problematic.
SL, you would have noticed that I’m not at all comfortable with the idea of ‘goals’ for the very reason you state, but also because I think they’re postulates of law. Consequently, the Hayekean idea that they’re ‘by-products’ of law is also problematic. Its tantamount to saying that the justice and the order characteristic of the rules of football(laws of civil association) are an accidental product of the rules of football (laws of civil association]). That is, I think, just silly.
Think of it this way, where ever there are human beings who are also governed by law (this having a certain character), there is also justice and order. Where one is absent, so are the others, human beings being what they are. Law, justice, and order in civil association are coeval.
Aye, there’s the rub, I’m coming at this problem from the opposite direction…as a lawyer interested in justifying liability to litigants…hence the difference in approach.
LE, lets think of it from the direction you come at it from. Lets say you ‘import’ a moral reason into your legal argument; doesn’t that transform the moral reason so that it now appears as a part of legal explanation? Surely, that is what happens in cases involving equity.
Now, even though a line of legal reasoning may derive in some way from moral reasoning, does it also mean that it still depends upon this extrinsic assumption? I don’t think it does.
“Where, in any case, do we derive such norms from (eg, the essence of contract is performance?) Surely this depends on a whole set of extrinsic considerations and assumptions?”
It might help if you name some of the extrinsic considerations and assumptions that inform the legal norm, ” the essence of contract is performance?”
As an aside, and to employ an architectural analogy, neither I, nor possibly Weinrib, understand this as an architectural construction, were morality is the ground floor and law the first floor. I picture them as seperate buildings with a common history that have at certain points, and more probably continuously in their history, employed the materials of the other in their ongoing construction.
I have to disagree that if a line of legal reasoning derives from a moral assumption, it becomes separated from that moral assumption when it is imported into law. I just can’t draw the line between law and the broader social context so sharply. In fact, my difficulty with Weinrib generally lies in my inability to draw lines as sharply as he does (private/public, corrective/distributive etc)
The notion that the essence of contract is performance, for example, is predicated on the primary assumption that we should keep our promises when they are made. Kant would say that the parties are bound to this because of the expression of free will of the parties says that they should be bound to perform a particular act. But that is presuming that people have to keep to their will once they express it. It still begs the question: why is it that we keep people to their expressions of will?
It just seems to me to be a circular kind of justification if you can only look at the law and the will of the private parties. It doesn’t actually illuminate much as far as I’m concerned.
I’m not suggesting a line of legal reasoning ‘derives’ from a single moral assumption, I’m suggesting it is imported into an already existing legal argument. Now does this suggest that this line of legal reasoning is derived from this assumption alone, or that it is one of the things informed by it? I don’t think Weinrib is trying to draw clear lines so much as distinguish between different sorts of arguments and explanations that are both like and unlike each other. And this makes sense as most of the times this cross-pollination happens it does so via the use of analogical reasoning. BTW, I’m none too thrilled by sharp distinctions between private and public, but I nevertheless think they are different; and much of what he says re corrective and distributive justice seems to me too much a relic of Aristotileanism.
“The notion that the essence of contract is performance, for example, is predicated on the primary assumption that we should keep our promises when they are made.”
I find this kind of thinking unfathomable. Its the problem represented by my previous analogy of morality as the ground floor and law as the first floor. But again there is a clear difference, contracts are promises of a certain character; if I contract with you to build my house you’re legally obliged to build it. If I promise to meet you for coffee at 6 and I don’t turn up you might be pleased or disappointed but it ends there. A contract in order words is both like and unlike a promise, they may share a common ancestry but they enjoy a different character.
“It just seems to me to be a circular kind of justification if you can only look at the law and the will of the private parties. It doesn’t actually illuminate much as far as I’m concerned.”
Firstly, substitute law for morality and see if you think the same also. What generates the moral assumption that “we should keep our promises when they are made”? Hobbes might say nature does, but even though it is generated by nature, it is itself a conclusion of artifical, moral reasoning. Nromative moral reasoning seems to want to be genesis of many types of reasoning but there is never a satisfactory explanation of its own genesis; it is somehow sui generis involving a miraculous appearance on the human scene. See the criticisms of Stephen P. Turner. Secondly, why should the wills of parties not subject to a particular dispute be considered? What’s at issue is whether the parties concerned have meet the conditions set out by law. I can see how this is an issue of public concern, but apart from those actually involved, there can be no other parties to the dispute.
And none of this denies morality, etc. as a context in which we may illuminate the text of law. But, a context which extinguished the law as text is not illuminating, it is destructive.
I remember many moons ago our discussion about law and equity (over at the Cat) and I referred to Plato’s antagonism towards equity as the enemy of law; I’m starting to think that he had a point. I still think that if we can discipline equity by means of legal argument law might nevertheless survive.
I’m afraid that I love equity: as Aristotle pointed out long ago, it is “a rectification of law where the law falls short by reason of its universality.” Law requires grand generalisations, but there are some circumstances where these generalisations produce unfairness rather than justice, and I believe that this is where equity has a place. That being said, I don’t believe in unbounded discretion - there needs to be clear doctrines as to when equity will intervene and in what circumstances. Otherwise the result is chaos.
I see equity not as destroying law, but (if rightly used) as complementing it and making it more just.
In terms of a norm such as “the essence of contract is performance”, I feel that this can be justified by a wider consideration that commercial chaos will result if individuals are not kept to their promises in defined circumstances. In law and economics terms, keeping people to their promises could be justified on the basis of efficiency.
However, as I understand Weinrib, these would be an extrinsic policy concerns which are illegitimate. I don’t see why these kind of considerations need to be excluded.
Have you read Hanoch Dagan’s commentary as to why, even if a pure corrective justice scheme was instituted in practice, there would end up being a distributive element to it because of the precedential way in which law works? This seems to me to establish that Weinrib’s ideal is unachievable in practice.
As far equity and law is concerned we agree, legal argument must discipline equity.
Weinrib doesn’t exclude economic arguments as practical justifications of law, so much as say that we should be able to defend law by means of legal justifications primarily. That there are these other reasons is all the better. In your example, there would be no such thing as ‘contract’ if contract did not postulate ‘performance’. A contract that was optional or whose terms were not clearly defined would not be a contract, but something else.
“Have you read Hanoch Dagan’s commentary”
No I haven’t, but I shall. Do you know if Weinrib’s replied to Dagan?
AFAIK, Weinrib hasn’t responded directly to Dagan’s criticisms, although I’m sure he’s aware of them.
I suppose my main problem with Weinrib comes down to this. He seems to say that when a judge makes a decision, it is utterly illegitimate to have regard to the wider ramifications of your decision. Now, I do think Weinrib provided a much needed reminder that the focus of private law should be first and foremost on the parties before the court (c/f some Law and Economics scholars, who see the particular dispute as immaterial). But I do not see any reason for totally excluding any considerations such as deterrence or denunciation in some circumstances in apportioning liability (but always with the particular dispute first and foremost in one’s mind).
I also think that a litigant would understand that, for example, an account of profits for fiduciary duty has a deterrent motive behind it, and so to say that it does not is to deny reality.
Weinrib has reviewed Dagan’s book, so maybe the answer is in there.
Review: Restoring Restitution
Ernest J. Weinrib
Reviewed work(s): The Law and Ethics of Restitution by Hanoch Dagan
Virginia Law Review, Vol. 91, No. 3 (May, 2005), pp. 861-878
Thank you, Steve. I should have thought of that!
Indeed, I may even have it printed out in the giant stack of thesis papers sitting on my right hand side here - I really need to go through and rationalise them…again…every month or so they just get out of control.
Thanks, Steve.