CONCEPTS ALL THE WAY DOWN.

• Author: Gerhart, Peter M.
• Position: Recognizing Wrongs

CONTENTS INTRODUCTION I. POSITIVISM V. NATURAL LAW II. INSTRUMENTALISM AND TORT THEORY III. PRAGMATIC CONCEPTUALISM IV. THE PROBLEM OF POSITIVISM V. CONCEPTS AND DOCTRINE A. Rylands v. Fletcher B. Product Liability C. Redress CONCLUSION JOHN C.P. GOLDBERG AND BENJAMIN C. ZIPURSKY,

RECOGNIZING WRONGS (CAMBRIDGE, MASS.: BELKNAP

PRESS OF HARVARD UNIVERSITY PRESS, 2020).

INTRODUCTION

Two of the most prolific and respected tort scholars, John C.P. Goldberg and Benjamin C. Zipursky, have published a vital summation of their ideas about tort law; they call the book Recognizing Wrongs. (1) This is not a collection of their many articles on tort law; it is a freshly written, comprehensive exposition of their beliefs about tort law's central concepts. To those who have faithfully read their articles over the years, much will sound familiar; but even those readers should read this book to understand the coherence of their arguments.

The book states a claim and defends it against real or imagined detractors. The claim is this: "tort law empowers persons to obtain redress from those who, in the eyes of the law, have wrongfully injured them." (2) At one level, this claim is definitional and descriptive. Yes, if a court finds that the defendant has committed a wrong, the court will provide the victim with redress. Students learn that on the first day of their class in tort law. Looking back at how judges decide cases, we can say with confidence that in every instance in which a court has granted relief, it has found that the defendant committed a wrong that entitles the plaintiff to that relief. We can also say with confidence that in no case in which a judge has denied relief on substantive grounds has the defendant committed a wrong. However, the authors intend their book to be more than a 350-page tautology. They intend the book to be a major statement about the nature of law and legal reasoning. Indeed, it is.

The authors develop and defend a form of legal reasoning they call "pragmatic conceptualism." (3) They develop a theory of rights--the right to civil recourse and redress--that seeks to stand on its own, quite apart from the content of what legal materials prohibit or enable. They develop a theory of rights and remedies that shows the relationship between the two in non-instrumental terms. They claim that we can recognize wrongs by understanding the concept of wrong developed in prior determinations of wrongful behavior. Finally, they claim that because tort wrongs are set apart from other wrongs, they are unique and distinctive (two of the authors' favorite words). These are formidable accomplishments by talented scholars. The book presents a positivist approach to understanding tort and discusses the kind of objections that other scholars of a positivist persuasion might have to the idea that tort law is about the redress of wrongs.

The question raised by the book, and by this review, is whether conceptualism is a helpful way of viewing tort law, or, by extension, any law. The authors apparently believe that the alternative method of understanding tort law is instrumental. Instrumental theories define the field of tort law by what it accomplishes, and the authors repeatedly cast aspersions on instrumental views of tort scholars. (4) The authors offer pragmatic conceptualism as the antidote. If one believes that conceptualism and instrumentalism are the only methods of understanding tort law, one might be inclined to agree. However, those are not the only options; it is possible to have non-instrumental, non-conceptual theory of tort law, as I will show below. (5) What is puzzling is that the authors are clearly capable of developing such an approach to tort law, but they have chosen not to. I will try to unpack that puzzle in this review.

I situate the main ideas of Recognizing Wrongs within the general contest between positivist and natural-law approaches to understanding a body of law. I then claim that the authors are trying to turn a positivist, conceptual approach into a natural law approach, and I show how they are doing so as a counterweight to an instrumental approach. Ultimately, I believe that this attempt to merge positivist with natural law theory is unsuccessful, primarily because a concept cannot define its own content. However, the authors have also overlooked the possibility of having non-instrumental theories of tort law that are superior to conceptual theories. This, in turn, allows me to identify a shortcoming of positivism--namely, the failure to offer a theory of what the law does not prohibit or enable. Recognizing wrongs is one thing; recognizing non-wrongs is another.

1. POSITIVISM V. NATURAL LAW

   We can best understand this book's perspective in light of the jurisprudential contest between positivist and natural law theories of what a legal system entails. The Goldberg and Zipursky account is positivist through and through; it shuns any direct appeal to ideas that one might associate with natural law theory. According to positivists, the law is what lawmakers prohibit or enable, and what the law prohibits or enables is simply a social fact about what lawmakers have decided. (6) In the context of this book, the law is a series of conduct rules for which courts give redress. If courts identify certain behavior as negligent and determine that the negligence connects in a specified way to a victim's harm, the court has established the grounds for finding a wrong and providing redress. Positivists have a sophisticated theory of rights and a sophisticated theory of legal interpretation, and Professors Goldberg and Zipursky exploit both with great skill. They even add details (and vocabulary) to the positivists' story.

   Positivists view legal requirements to be the output of the legal system--the things that legislators and judges say people ought to do or refrain from doing. They understand law in terms of rules and doctrine--the output of the institutional system by which lawmakers determine prohibitions and enablements. In that sense, positivists operate on the surface of the law; they identify an automobile by its definitional characteristics, without looking under the hood to see what makes it work. Moreover, because they ply the surface, positivists are both separatists and literalists. (7) Positivists, or at least these positivists, take at face value what judges say they are doing, and they use that literal language to identify that which separates one area of law from another. (8) As a description of what the law prohibits or enables, the book is accurate: tort law provides redress for wrongs. However, what does that tell us about law?

   Natural law scholars, by contrast, are a diverse group, unified by the fact that they find positivism to be uninteresting. Despite their diversity, non-positivists (as natural law scholars are sometimes known) have one thing in common. They believe that legal analysis ought to strive to understand what determines the law's content; they seek to know what factors or values determine what the law prohibits or enables. In the context of tort law, they seek to understand what determines whether a person has committed a wrong of the kind that entitles a plaintiff to redress. They seek, in other words, to understand law by its inputs, by the mode of reasoning a judge uses to determine whether the defendant has been negligent or has committed a battery--not by its outputs--the occasions when a judge or jury finds that the person has been negligent or committed a battery. They look under the hood of the law and seek to understand how the law operates and what happens, for example, if we change the design of the carburetor. They understand that the automobile will still be an automobile, but they wonder if it will operate in the same way.

   Because they are a diverse group, natural law lawyers present diverse visions and methodologies. John Finnis understands law to derive from the concept of practical reasonableness. (9) Ronald Dworkin understands law to be determined by legal principles. (10) Economists believe that law emanates from the concept of efficiency. (11) Although these perspectives differ, they have in common the belief that the best way to understand legal requirements is to understand the factors and values that determine what the law prohibits or enables.

   Consider differences between the two perspectives. Positivists view law as a system of outputs (the rules and doctrines that judges and legislators produce); non-positivists view law as a system of inputs (factors and values that determine the rules or doctrine). The positivists ask the what question; they want to understand the concept of law by what the law prohibits or enables. Non-positivists ask the why question; they want to know why the law prohibits or enables some behavior but not others. Positivists ask about the essence of law. Professors Goldberg and Zipursky seek to answer this favorite positivist question by arguing that the essence of tort law is about the redress of wrongs. By contrast, natural law lawyers believe that the essence of law is in the method of reasoning by which the law creates or recognizes legal norms, which cannot be put into a simple rule. (12)

   The two perspectives influence legal advocacy differently. When advocates argue for one interpretation of legal doctrine over another, they often make positivist arguments. They are arguing, "here is the best interpretation of what the law prohibits or enables." However, advocates frequently make non-positivist, natural law arguments as well. As an example, consider the many suits against the manufacturers of DES, a drug that caused harm and that the manufacturers marketed inappropriately. (13) The plaintiffs could prove that the manufactures were negligent but could not prove which manufacturer caused the injury to which plaintiff. Despite the plaintiffs' inability to prove "but for" causation, the plaintiffs...