The Idea of Private Law.

• Author: Rabin, Robert L.

By Ernest J. Weinrib.(*) Cambridge: Harvard University Press, 1995. Pp. x, 237. $35.00.

For almost thirty years now, a poor beleaguered torts professor, who once could rest comfortably on the mastery of Prosser and the latest case law developments, has been assaulted from any number of directions. First it was the economists, championed by the path-breaking work of Guido Calabresi and Richard Posner, who recast analysis of the tort system in economic efficiency terms.(1) Strong medicine for the uninitiated. But at least the adherents of optimal resource allocation and their antagonists from other "law and" perspectives labored within the same vineyards--namely, academia.(2)

Then came the assault from without. Political activists, marching under the banner of tort reform, began to propose every manner of change through legislative action: constraints on intangible and punitive damages, limitations on the contingency fee, elimination of joint and several liability, and a host of others.(3)If there was any common message for the academic torts contingent in all this clamor, it was to this effect: "Get beyond your excessive preoccupation with doctrine--tort law is only legitimate if it serves some useful purpose, and whether it meets this test depends on its satisfaction of independent societal goals."

Now comes Ernest Weinrib, addressing the system of private law generally, but mostly with reference to tort law, who tells us:

[D]espite its current popularity, the functionalist understanding of

private law is mistaken. Private law, I will claim, 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.

. . . It cannot be (one hopes) that the very idea of a phenomenon

intelligible only in terms of itself is unfamiliar. Some of the most

significant phenomena of human life--love or our most meaningful

friendships, for instance--are intelligible in this way. We immediately

recognize the absurdity of the suggestion that the point of love is to

maximize efficiency by allowing for the experience of certain

satisfactions while at the same time avoiding the transactions costs of

repeated negotiation among the parties to the relationship. . . . Love

is its own end. My contention is that, in this respect, private law is

just like love.(4)

From this dramatic opening thrust, Weinrib proceeds to construct an autonomous model of the tort system, built on the framework of negligence law but supported by a venerable foundation of Aristotle and Kant, that is about as far removed as one can get from the rough-and-tumble of legislative tort reform or the instrumentalism of cost-benefit analysis.

In Part I of this Review, I will describe Weinrib's private law system--built on the foundations of legal formalism.(5) Part II of the Review will offer a critique of the formalist credo. I will argue that Weinrib's claim for the autonomous character of his formalist thesis cannot be sustained either as a logical proposition or, in application, as a satisfying positive or normative perspective on the development of the tort system. Weinrib's theory of private law is meant to embrace the private law system in its entirety, but his applications are almost exclusively to the tort system--where he offers a comprehensive critique of competing doctrinal theories of negligence and strict liability. I will similarly limit my discussion of the private law applications of his theory to the tort system. In Part III, I will address some particularly salient current policy issues in tort law that underscore the shortcomings of his analysis. Part IV, a concluding observation, will bring the argument back full circle to Weinrib's claim for a private law system subject solely to internal validation. Ultimately, I will suggest, Weinrib's notable intellectual accomplishment in fashioning a doctrinal universe to fit his philosophical principles is undermined both by its highly conceptual normative character and by its insistent indifference to functional concerns about the impact of tort law on society.

1. THE FORMALIST CREDO

   Weinrib is an unabashed conceptualist--or formalist, as he would put it. The structure of his formalist approach is conveyed in an introductory reference to "three mutually reinforcing theses," which turn out to be architectonic.(6) His first thesis is that private law, properly understood, is immanently, or internally, intelligible; in Weinrib's terminology, the elements of "character, kind, and unity" must cohere.(7) More directly, his initial proposition is that private law has certain essential structural features that can only be justified in terms of their interlocking, mutually reinforcing relationships.

   Under this stricture, two commonly specified goals of the tort system--compensation through loss spreading, and deterrence--are in immediate trouble. Loss spreading is incoherent, Weinrib argues, because it focuses on the plaintiff's need for compensation--but, through the inconsistent doctrinal limitation of a causation requirement, fails to embrace comprehensively the underlying insurance rationale of a compensation-driven system.(8) Deterrence is similarly incoherent, because its avowedly single-minded focus on risk minimization is at odds with the tort requirement that the risk-creating conduct result in actual injury to a plaintiff.(9) Thus, coherent pursuit of the compensation goal is in tension with the two-party, causation-based structure of private tort law; so too, logical pursuit of the deterrence objective is unrelated to the ends of the tort plaintiff--indeed the plaintiff's main function is to serve as a bounty hunter who energizes the regulatory drive of the system.

   All of this is by way of criticism of widely accepted current theory. Weinrib's affirmative case for the formalist approach to private law turns on his second thesis--that Aristotle's conception of corrective justice offers an appropriate framework for an internally consistent, unified approach to private law.(10) Initially, we need to understand what private law is not. By distributive justice, Aristotle had in mind a notion of horizontal equity in which benefits and burdens were allocated among a class on the basis of a merit principle--presumably, any intelligible criterion of comparative desert. For example, in the world of accidental harm a no-fault compensation scheme offers a straightforward illustration of the distributive justice notion." Under workers' compensation, for instance, injured workers base their compensation claims on a politically designated entitlement (injury arising in the workplace), rather than a normatively grounded individual right.

   By contrast, Weinrib posits, as the appropriate basis for private law, an interpersonal, Aristotelian vision of corrective justice:

   Corrective justice embraces: a bipolar conception of interaction that

   relates the doer of harm to the sufferer of that harm; a bipolar

   conception of injustice as a violation of quantitative equality; a bipolar

   conception of damage as a loss by the plaintiff correlative to the

   defendant's gain; a bipolar conception of the adjudicative process as

   a vindication of the quantitative equality of the litigants; and a bipolar

   conception of the remedy as the annulment of the parties' correlative

   gain and loss.(12)

   This is fine as far as it goes. But, as Weinrib recognizes, the very power of Aristotle's contrast between corrective and distributive justice could also be taken to be its main deficiency. For we are left with form without content. Corrective justice as defined posits a bipolar structure of reparation, but it is indifferent to matters of status, wealth, and merit of the parties. Gains and losses are to be annulled without reference to these considerations.

   What then is to be the guiding normative principle that gives meaning to rights and duties of the parties? Here is where Weinrib's third thesis and Immanuel Kant enter the picture. Weinrib derives the normative aspect of corrective justice from Kant's concept of right--a conception driven by the principle of regard for the "self-determining agency" of individuals--that is, respect for the free will of others."

   Despite its normative content, on closer examination the Kantian edict turns out to have a distinctly conceptualistic character. Kant's notion of free will or freedom of choice, not unlike Aristotle's conception of corrective justice, lacks ethical direction. It exalts respect for the autonomy of others as an end in itself, without reference to any specified code of moral conduct. Anything goes, so to speak, as long as each individual respects the self-actualizing space of others. The focus of Kant's legal philosophy, according to Weinrib, is "not on an action's goodness but on its consistency with the freedom of all persons."(14)

   Thus, Weinrib's three organizing theses come down to this. First, a system of private law should pursue a coherent end or set of ends, rather than pursuing an amalgam of objectives--a misguided pursuit found in the present-day structure of American tort liability rules. Second, a private law system should follow the dictates of Aristotle, reflecting the formalist perspective of bipolar rights and duties envisioned in his model of corrective justice. Third, a private law system should take, as its substantive definition of bipolar obligations, the dictates of the Kantian norm of protecting individual autonomy.

   Fair enough, one might respond, but how do these theoretical claims bear on the character of tort law? The port of entry for Weinrib is the concept of correlativity of rights and duties, which is central to the bipolar structure of corrective justice.(15) Individuals, under Kant's notion of autonomy, can claim protection both for "bodily integrity" and for "external objects...