Rights and wrongs.

• Date: 01 May 1999
• Author: Goldberg, John C.P.

EQUALITY, RESPONSIBILITY, AND THE LAW. By Arthur Ripstein. Cambridge, Eng.: Cambridge University Press. 1999. Pp. xii, 307. $54.95.

1. PRELUDE: HISTORICAL CONTEXT

   If one were to ask an American lawyer or legal scholar for a definition of liberalism, her explanation would likely include mention of constitutional provisions such as the First and Fourth Amendments. This is because liberalism is today understood primarily as a theory of what government officials may not do to citizens. Its most immediate expression in law is thus taken to be those parts of the Bill of Rights that set limits on state action.

   This tendency to conceive of liberalism exclusively as a theory of rights against government is a twentieth century phenomenon. To be sure, liberalism has always embraced such rights. But for most of its history, it has in addition contained a theory of rights against private misconduct. It thus entailed not only a negative obligation on the part of government to refrain from infringing upon the liberties of citizens, but also a positive obligation to provide criminal and civil law that protects against, and provides redress for, wrongful invasions of rights by private actors. Thus, whereas today liberalism is primarily understood as a theory of constitutional rights, for most of its history it was offered as a theory of both rights and wrongs.

   The older conception of liberalism is evident in the work of Blackstone. Blackstone quite explicitly organized the Commentaries so that they would "in the first place consider the rights that are commanded, and secondly the wrongs that are forbidden by the laws of England."(1) Implicit in this organization is the claim that, just as English liberalism entailed a duty on the part of government to respect individuals' rights, so too it entailed an obligation to enact and administer laws against private misconduct. These wrongs include what Blackstone called "private" or "civil" wrongs -- wrongs against particular persons -- and "public" or "criminal" wrongs -- wrongs against society as a whole.(2) Critically, for Blackstone, the law of wrongs incorporated both a prospective and a remedial component. Government was "officially bound" not only to specify the conduct forbidden by law, but to provide "redress" for harms caused by such conduct.(3)

   In American legal scholarship, Holmes's writings mark both the apogee and the beginning of the demise of the Blackstonian synthesis. Holmes, of course, abandoned Blackstone's vocabulary of rights and wrongs in favor of what he took to be the more rigorous Benthamite language of liberties and harms. But The Common Law otherwise tracks the Commentaries in claiming to find the organizing principle of Anglo-American private law in its consistent enforcement of what Blackstone called the principle of "civil liberty": the principle that one is at liberty to act, so long as one acts with due regard for the liberty of others.(4) For Holmes, the common law, as much as the Constitution, embodied the spirit of liberalism. By imposing liability for unreasonable conduct, it succeeded in reconciling the liberty and security of each.(5)

   By the time Holmes had ascended to the Supreme Court, liberalism had come to be identified with a rigidly laissez faire theory of government (expressed in public law as economic due process), and a brutally atomistic account of civil society (expressed in such tort doctrines as the privity rule, the fellow servant rule, and assumption of risk).(6) Progressive legal scholars, ironically invoking the positivist and skeptical aspects of Holmes's work, sought to develop pragmatic and utilitarian theories of government and civil society that, by abolishing the basic liberal categories of rights and wrongs, would sanction political and legal reform. The major thrust of this effort in constitutional scholarship was, of course, to challenge the courts' deployment of rights to strike down social and economic legislation.(7) Meanwhile, scholars of the common law argued that it was a mistake to conceive of crime and tort as concerned with wrongs. The latter, in particular, had to be understood not as Blackstone's law of "private" wrongs, but as "public law in disguise."(8) The law of battery, negligence, nuisance, and defamation could then be seen for what it "really" was: a specialized language that lawyers and judges used to make policy decisions as to what level of "protection [against harm] ... should be extended the litigants which at the same time best serves the interests of the rest of US."(9)

   The assault on liberalism in law was for a variety of reasons enormously successful. By the late 1930s, the Supreme Court had abandoned economic due process, and the Realist account of tort found in the work of Leon Green and William Prosser was in the ascendancy. Yet, in the wake of World War II and the civil rights movement, liberalism reemerged as a theory of how government actors ought to treat citizens.(10) Particularly in the 1970s and 1980s, political theorists such as Rawls and Dworkin developed elaborate accounts of the rights that officials are obliged to respect, and they and others developed correspondingly rich theories of constitutional law.(11) As I noted at the outset, however, the liberal revival has for the most part been one-sided. Most neoliberals have plenty to say about rights, but little to say about wrongs.(12) In particular, they seem quite content to adhere to the Realist notion that tort law is public law.(13)

   That the new rights theory has not been accompanied by a new theory of wrongs is largely attributable to the fact that the liberalism of the 1970s tended to take on a strongly egalitarian cast. Dworkin, for example, argued that liberalism itself is founded on a principle of equal concern and respect.(14) More significantly, he and other neoliberals maintain that the same notion of equality that entails that government must respect the rights of citizens also entails that it must take steps to ameliorate the effects of economic inequality on each individual's capacity to exercise those rights. This commitment to egalitarianism has made it hard for liberals to warm up to tort and criminal law, which, on their face, seem indifferent, if not hostile, to equality. Tort law, in particular, strikes many as inegalitarian in principle, since it is prepared to redistribute wealth from even a poor defendant to a rich plaintiff if the legal conditions for imposing liability are met.(15) Thus, it is not surprising to find egalitarian liberals, like their utilitarian predecessors from earlier in the century, favoring judicial decisions and legislative reforms that move tort doctrine closer to a redistribution scheme (or eliminate it altogether).(16)

2. A THEORY OF WRONGS FOR THE NEW LIBERALISM

   Against the preceding backdrop, Equality, Responsibility, and the Law, by Professor Arthur Ripstein of the University of Toronto, can be understood as a sustained effort to convince present-day, egalitarian liberals that Anglo-American tort and criminal law are neither indifferent nor hostile to, but actually expressions of, a theory of rights. In short, it seeks to revive and recast the dormant Blackstonian tradition that conceives of liberalism as a unified theory of rights and wrongs. With Blackstone, Ripstein argues that the same liberal principle of equality that dictates how officials must act toward citizens also sets the substantive terms on which private individuals must interact. With Holmes, Ripstein claims that the law's commitment to this principle is most clearly evidenced by the centrality of the concept of reasonableness to criminal and tort law. With Rawls and Dworkin, Ripstein maintains that liberalism entails both an equal distribution of basic liberties and a fair distribution of wealth.

   Ripstein finds liberalism's unity in a bedrock principle of reciprocity. The reciprocity principle holds that the state is justified in coercing citizens only insofar as it upholds "[f]air terms of interaction" between them (p. 6). More specifically, it requires the state to treat each person equally by ensuring that each has resources that enable her to exercise her right to liberty and by establishing laws that "protect people equally from each other" (p. 6). To conform to the reciprocity principle, law must therefore include among its goals the protection against government interference with basic liberties, as well as the provision to each of certain primary goods, "so that the results of voluntary interaction reflect choices rather than arbitrary starting points" (p. 2). But law must also ensure reciprocity in private interaction by establishing, through the use of reasonableness standards, the proper balance between each actor's claim to liberty of action and each other actor's interest in the security of his person and property (p. 6). In addition, law must enforce those boundaries by, respectively, punishing those who consciously choose to act unreasonably, and by requiring those who act unreasonably (whether consciously or not) to compensate for injuries they cause.

   Ripstein's book builds on the seminal works of Jules Coleman,(17) George Fletcher,(18) and Ernest Weinrib,(19) among others. His effort to find in the principle of reciprocity a unified theory of corrective, criminal, and distributive justice is nonetheless original. It is also among the most sophisticated applications to date of Rawlsian political theory to law. As such, it deserves (and requires) a careful read from anyone interested in theories of tort and crime, theories of liberalism and equality, and theories of law itself. I will provide an analytical summary of Ripstein's arguments in what follows. But the reader must turn to the book itself to appreciate the breadth of its ambition and the depth of its insights.

   Before proceeding further, it will be helpful to note two central and recurrent features of the book's analysis...