The anatomy of private law theory: A 25th anniversary essay

Oxford Journal of Legal Studies

Volumn 25, Issue 2, 2005, Pages 203-217

  Cane, Peter ^a  

^a AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

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EID: 27744555381     PISSN: 01436503     EISSN: None     Source Type: Journal    
DOI: 10.1093/ojls/gqi011     Document Type: Article

References (141)

1. See, e.g. J. Gordley, The Philosophical Origins of Modern Contract Doctrine (Oxford: Clarendon Press, 1991);
2. 'Tort Law in the Aristotelian Tradition' in D. Owen (ed.), Philosophical Foundations of Tort Law (Oxford: Clarendon Press, 1995) 131-58.
3. (1960) 3 J of Law and Economics 1.
4. G. Calabresi, The Costs of Accidents (New Haven and London: Yale University Press, 1970): The book built on a series of articles published in the 1960s.
5. See generally R. A. Posner, Economic Analysis of Law (Boston and Toronto: Little Brown and Company) first published in 1972 and now in its 5th edition.
6. R. Harris, 'The Uses of History in Law and Economics' (2003) 4 Theoretical Inquiries in Law 659, 660.
7. Economic analysis of aspects of private law attracted attention in no less than six contributions to the first two issues of this Journal: R. S. Summers and L. B. Kelley, '"Economists' Reasons" for Common Law Decisions - A Preliminary Inquiry' (1981) 1 OJLS 213
8. C. K. Rowley, 'Social Sciences and Law - The Relevance of Economic Theories' (1981) 1 OJLS 391
9. W. Bishop, 'Economic Loss in Tort' (1982) 2 OJLS 1
10. P. Cane, 'Justice and Justifications for Tort Liability' (1982) 2 OJLS 30
11. M. J. Rizzo, 'The Economic Loss Problem: A Comment on Bishop' (1982) 2 OJLS 207
12. W. Bishop, 'Economic Loss: A Reply to Rizzo' (1982) 2 OJLS 207.
13. R. A. Posner, 'Corrective Justice in Recent Theories of Tort Law' (1981) 10 JLS 187.
14. See also I. Englard, 'Can Strict Liability be Generalized? (1982) 2 OJLS 245 (reviewing R. A. Epstein, A Theory of Strict Liability (San Francisco: Cato Institute, 1980)).
15. Benjamin Zipursky thinks that John Rawls', A Theory of Justice, first published in 1971, was instrumental in the development of justice-based accounts of tort law: B. Zipursky, 'Rawls in Tort Theory: Themes and Counter-Themes' (2004) 72 Fordham LR 1923, 1930-1. But Rawls said almost nothing about private law, and the first major contribution to private law theory inspired by Rawls' path-breaking work - Arthur Ripstein's, Equality, Responsibility and the Law - was not published until 1999.
16. See also A. Ripstein, 'The Division of Responsibility and the Law of Tort' (2004) 72 Fordham LR 1811
17. S. Perry, 'Ripstein, Rawls and Responsibility' (2004) 72 Fordham LR 1845.
18. Anyway, some justice theorists expressly reject Rawlsian 'political' understandings of tort law in favour of some 'pre-political' account: S. R. Perry, 'The Distributive Turn: Mischief, Misfortune and Tort Law' in B. Bix (ed.), Analyzing Law: New Essays in Legal Theory (Oxford: Oxford University Press, 1998).
19. e.g. G. Calabresi and A. D. Melamed, 'Property Rules, Liability Rules and Inalienability: One View of the Cathedral (1972) 85 Harvard LR 1089
20. G. Calabresi, 'The Pointlessness of Pareto: Carrying Coase Further' (1991) 100 Yale LJ 1211.
21. e.g. M. J. Trebilcock, The Limits of Freedom of Contract (Cambridge, Mass: Harvard University Press, 1993).
22. M. Richardson and G. Hadfield (eds), The Second Wave of Law and Economics (Sydney: The Federation Press, 1999).
23. Calabresi has also been identified as founder of the 'New Haven school' of law and economics, whereas Posner is associated with the 'Chicago (or 'neo-classical') school': N. Mercuro and S. G. Medema, Economics and the Law: From Posner to Postmodernism (Princeton: Princeton University Press, 1997), ch 2.
24. e.g. D. Dewees, D. Duff and M. Trebilcock, Exploring the Domain of Accident Law: Taking the Facts Seriously (New York: Oxford University Press, 1996);
25. C. A. Sunstein (ed.), Behavioural Law and Economics (Cambridge and New York: Cambridge University Press, 2000);
26. J. N. Drobak, 'Cognitive Science' in J. G. Backhaus (ed.), The Elgar Companion to Law and Economics (Cheltenham, UK: Edward Elgar, 1999), ch 21.
27. e.g. E. A. Posner, Law and Social Norms (Cambridge, Mass: Harvard University Press, 2000);
28. S. Shavell, 'Law Versus Morality as Regulators of Conduct' (2002) 4 American L and Econ R 227.
29. N. Duxbury, Patterns of American Jurisprudence (Oxford: Clarendon Press, 1995), 418.
30. See, e.g. C. Parker, C. Scott, N. Lacey and J. Braithwaite (eds), Regulating Law (Oxford, Oxford University Press, 2004).
31. It has attracted much attention in the pages of this Journal in recent years: Notably W. N. R. Lucy, 'Contract as a Mechanism of Distributive Justice' (1989) 9 OJLS 132
32. W. N. R. Lucy, 'Rethinking the Common Law' (1994) 14 OJLS 539 (reviewing J. Coleman, Risks and Wrongs (Cambridge: Cambridge University Press, 1992));
33. P. Cane, 'Corrective Justice and Correlativity in Private Law' (1996) 16 OJLS 471 (reviewing E. J. Weinrib, The Idea of Private Law (Cambridge, Mass and London: Harvard University Press, 1995));
34. W. N. R. Lucy, 'The Common Law According to Hegel' (1997) 17 OJLS 685 (reviewing A. Brudner, The Unity of the Common Law (Berkeley: University of California Press, 1995));
35. A. Pottage, 'Instituting Property' (1998) 9 OJLS 331 (reviewing J. W. Harris, Property and Justice (Oxford, Clarendon Press, 1996));
36. A. Reeve, 'Convention and Justification: Professor Harris on Property and Justice' (1999) 19 OJLS 324
37. S. Deakin, 'The Evolution of Tort' (1999) 19 OJLS 537 (reviewing P. S. Atiyah, The Damages Lottery (Oxford: Hart Publishing, 1997),
38. P. Cane, The Anatomy of Tort Law (Oxford: Hart Publishing, 1997) and
39. D. Dewees, D. Duff and M. Trebilcock, Exploring the Domain of Accident Law (Oxford: Oxford University Press, 1996));
40. P. Cane, 'Mens Rea in Tort Law' (2000) 20 OJLS 533
41. J. Perkins, 'Ripstein on Equality, Responsibility and the Law' (2000) 20 OJLS 673 (reviewing A. Ripstein, Equality, Responsibility and the Law (Cambridge: Cambridge University Press, 1999));
42. A. Ripstein, 'Private Law and Private Narratives' (2000) 20 OJLS 683 (reviewing T. Honoré, Responsibility and Fault (Oxford: Hart Publishing, 1999));
43. D. Klimchuk, 'On the Autonomy of Corrective Justice' (2003) 23 OJLS 49.
44. It is important in this context to distinguish between 'instrumental' and 'functional' approaches to law. Some - but certainly not all - justice theorists reject not only the idea that law is best understood as an instrument of 'social policy' but also the idea that it has any 'function' other than - in Weinrib's famous phrase - 'to be private law': The Idea of Private Law (Cambridge, Mass: Harvard University Press, 1995), 5.
45. For Weinrib, law is best understood 'formalistically'. Jules Coleman, by contrast, calls himself a pragmatist, and distinguishes between 'social' and 'constitutive' functions of law: The Practice of Principle (Oxford: Oxford University Press, 2001), 14.
46. See also Cane, The Anatomy of Tort Law, ch 7. Weinrib rejects attempts by Coleman (e.g. Markets, Morals and the Law (Oxford: Oxford University Press, 1998)) and Stephen Perry (e.g. S. R. Perry, 'The Moral Foundations of Tort Law' (1992) 77 Iowa LR 449) to explain tort law in 'moral' terms.
47. G. T. Schwartz, 'Mixed Theories of Tort Law' (1997) 75 Texas LR 1801, 1810.
48. See, e.g. R. West, 'Jurisprudence and Gender' (1988) 55 U of Chicago LR 1.
49. e.g. J. Conaghan and W. Mansell, The Wrongs of Tort (London: Pluto Press, 2nd edn, 1999);
50. R. Abel, 'A Critique of Torts' (1990) 37 UCLALR 785
51. 'Should Tort Law Protect Property Against Accidental Loss?' in M Furmston (ed.), The Law of Tort: Policies and Trends in Liability for Damage to Property and Economic Loss (London: Duckworth, 1986).
52. For an accessible brief account of critical legal theory more generally see M. V. Tushnet, 'Critical Legal Theory' in M. P. Golding and W. A. Edmundson (eds), The Blackwell Guide to Philosophy of Law and Legal Theory (Malden, MA: Blackwell, 2005).
53. e.g. J. Conaghan, 'Tort Law and the Feminist Critique of Reason' in A. Bottomley (ed.), Feminist Perspectives on the Foundational Subjects of Law (London: Cavendish Publishing, 1996) 47-85
54. M. Chamallas, 'The Architecture of Bias: Deep Structures in Tort Law' (1998) 146 U Pa LR 463
55. G. Schwartz, 'Feminist Approaches to Tort Law' (2001) 2 Theoretical Inquiries in Law 174
56. A. Jacob, 'Feminist Approaches to Tort Law Revisited - A Reply to Professor Schwartz (2001) 2 Theoretical Inquiries in Law (Online Edition), No 1, Article 7
57. A. Bernstein, 'Restatement (Third) of Torts: General Principles and the Prescription of Masculine Order' (2001) 54 Vanderbilt LR 1367
58. J. Conaghan, 'Tort Law and Feminist Critique' (2003) 56 Current Legal Problems 175. It is striking that all of the most prominent economic and justice theorists of private law writing in English are male.
59. See 'Corrective and Distributive Justice', below.
60. For an attempt to develop what might be called a 'critical' approach to law and economics see R. P. Malloy, Law and Market Economy: Reinterpreting the Values of Law and Economics (Cambridge: Cambridge University Press, 2000);
61. Law in a Market Context: An Introduction to Market Concepts in Legal Reasoning (Cambridge: Cambridge University Press, 2004).
62. D. Kairys, The Politics of Law (New York: Pantheon, 1st edn, 1982).
63. On the difference between theory in this sense and 'scientific' theories see W. N. R. Lucy, 'Criticizing and Constructing Accounts of Legal Reasoning' (1994) 14 OJLS 303, 310-11.
64. E. J. Weinrib, 'Correlativity, Personality, and the Emerging Consensus on Corrective Justice' (2001) 2 Theoretical Inquiries in Law (Online Edition), No 1, Article 4.
65. see T. M. Scanlon, 'The Aims and Authority of Moral Theory' (1992) 12 OJLS 1
66. This is surely true of the thin concept of 'personality' that Ernest Weinrib offers as an explanation of the 'content' of private law: See above, n 24.
67. Although Ripstein detects a trend in law-and-economics away from descriptive analysis and towards prescription: A. Ripstein, 'Critical Notice: Too Much Invested to Quit' (2004) 20 Economics and Philosophy 1, 3.
68. P. Cane, Corrective Justice and Correlativity in Private Law' (1996) 16 OJLS 471, 485-87.
69. P. Cane, 'Markets and Morals in Contract and Tort' (1993) 13 LS 396, 406. Coleman defines the core of tort law in terms of a 'pretheoretic conception of [its] central elements' (The Practice of Principle, 15 n 2, 38). It is not clear how this procedure relates to his pragmatic methodology of focusing on tort law as a set of practices. Why start with a 'conception' of tort law rather than a description?
70. For extended discussion of this metaphor see S. Waddams, Dimensions of Private Law: Categories and Concepts in Anglo-American Legal Reasoning (Cambridge: Cambridge University Press, 2003), esp chs 1 and 11.
71. For a different approach see A. Beever and C. Rickert, 'Interpretive Legal Theory and the Academic Lawyer' (2005) 68 MLR 320, esp 330-31.
72. Risks and Wrongs, 8-9
73. The Practice of Principle, 5-6.
74. This distinction is perhaps captured in the contrast between 'philosophy of law' and 'legal theory'. Coleman also speaks of 'ground-level practices', and 'lower mid-level', 'higher mid-level' and 'upper level' principles and concepts: The Practice of Principle, 54-56.
75. e.g. Conaghan and Mansell, above n 18 at ch 1.
76. But critical theorists are not the only ones to do so: Lucy, above n 23.
77. Oxford: Clarendon Press, 1968.
78. Oxford, Clarendon Press, 1961.
79. But why, for instance, do they show no interest in finding out how actual participants in legal practices understand them?
80. As noted earlier, regulation scholars also view (private) law instrumentally. A major attempt to understand contract law as regulation in the light of empirical research is H. Collins, Regulating Contracts (Oxford: Oxford University Press, 1999), reviewed by D. Campbell, 'Reflexivity and Welfarism in the Modern Law of Contract' (2000) 20 OJLS 477.
81. T. S. Ulen, 'The Unexpected Guest: Law and Economics, Law and Other Cognate Disciplines and the Future of Legal Scholarship' (2004) 79 Chicago-Kent LR 403 argues that scientific method is the legacy of economic analysis to the legal academy. It is true that economic analysts lay great emphasis on the construction of testable hypotheses; but actual testing is relatively rare.
82. Jules Coleman's discussion of settlements (Markets, Morals and the Law, ch 9) is exceptional, as is Gregory Keating's insurance-oriented analysis of tort law as concerned with harm-infliction, not risk-creation: 'A Social Contract Conception of the Tort Law of Accidents' in G. J. Postema (ed.), Philosophy and the Law of Torts (Cambridge: Cambridge University Press, 2001). Weinrib's view appears to be that liability insurance is merely a mode of implementing corrective justice (Cane, Responsibility in Law and Morality, 243-45); but others (such as Keating) suggest that it also renders tort law's corrective aim and effects distributionally tolerable.
83. Alan Brudner accepts that tort practice contains both instrumental and non-instrumental elements, but seeks a monistic Hegelian integration of the two elements in the concept of 'dialogic community': The Unity of the Common Law: Studies in Hegelian Juripsridence (Berkeley: University of California Press, 1995).
84. Demonstration of conflict, contradiction and consequent indeterminacy in the law was a major part of the critical legal studies project in the 1970s and 1980s. Some critical theorists see law's multi-dimensional schizophrenia not as a problem needing to be solved by a search for some higher-level explanatory or justificatory concept but as an opportunity that can be exploited for strategic purposes: E.g. Conaghan and Mansell, above n 18, 193.
85. A related issue concerns the 'geographical' reach of theories: E.g. H. Spector, 'Fairness and Welfare from a Comparative Law Perspective' (2004) 79 Chicago-Kent LR 521
86. U. Mattei, Comparative Law and Economics (Ann Arbor: University of Chicago Press, 1997).
87. e.g. Coleman, The Practice of Principle, 25.
88. See also Lucy, 'The Common Law According to Hegel' (n 14 above), 692-95.
89. See, especially, A. W. B. Simpson, 'The Common Law and Legal Theory' in A. W. B. Simpson (ed.), Oxford Essays in Jurisprudence (Second Series) (Oxford: Clarendon Press, 1973);
90. G. Postema, Bentham and the Common Law Tradition (Oxford: Oxford University Press, 1986);
91. 'The Philosophy of the Common Law' in J. Coleman and S. Shapiro (eds), The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2002). It is note-worthy that the chapters on (the common law of) tort, contract and property in the latter volume appear to make no reference to Postema's ground-breaking work.
92. See also D. Lobban, The Common Law and English Jurisprudence, 1760-1850 (Oxford: Oxford University Press, 1991).
93. Posner's quasi-historical thesis, that the common law tends to efficiency over time, was one of his most controversial: Harris, above n 5, 669-72
94. Duxbury, above n 12, 410-14.
95. Note, for instance, the hermetic separation of the two topics in the two parts of Coleman, The Practice of Principle.
96. M. Davies, Delimiting the Law: Postmodernism and the Politics of Law (London: Pluto Press, 1996), 2.
97. But see M. Geistfeld, 'Economics, Moral Philosophy and the Positive Analysis of Law' in Postema (ed.), Philosophy and the Law of Torts.
98. The most extreme version of this approach is Zipursky's argument that private law should be understood not in terms of the correlative rights and obligations of claimant and defendant, but in terms of a right of the claimant, as against the state, to provision of mechanisms and procedures for suing the defendant: 'civil recourse' not 'corrective justice' as he puts it: B. Zipursky, 'Civil Recourse, not Corrective Justice' (2003) 91 Georgetown LJ 695.
99. J.S. Kraus, 'Philosophy of Contract Law' in J. Coleman and S. Shapiro (eds), The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2002).
100. Weinrib, The Idea of Private Law, 5.
101. Weinrib, The Idea of Private Law
102. Coleman, The Practice of Principle.
103. B. Zipursky, 'Pragmatic Conceptualism' (2000) 6 Legal Theory 457.
104. Hayek (associated with the 'Austrian school' of law and economics) developed a widely-noticed evolutionary, institutional theory of the common law and its relationship to statute (F. A. Hayek, Law, Legislation and Liberty, Vol 1: Rules and Order (London: Routledge and Kegan Paul, 1973); but it has had no discernible influence on economic analysts of private law. On Hayek see L. Van den Hauwe, 'Frederich August von Hayek (1899-1992)' in Backhaus (ed.), above n 10, ch 30.
105. For an unusual discussion in the Chicago tradition see T. S. Ulen, 'Courts, Legislatures and the General Theory of the Second Best in Law and Economics' (1998) 73 Chicago-Kent LR 189, 216-19.
106. For many justice theorists, tort law is the quintessence of private law because, it is said, it does not create rights but only recognizes and protects rights created by other departments of the law. The same might be said of the law of restitution. The lack of interest in this latter subject in the US explains why it has been more-or-less ignored (until very recently) by most justice theorists.
107. P. Benson, 'The Philosophy of Property Law' in Coleman and Shapiro (eds), The Oxford Handbook of Jurisprudence and Philosophy of Law, esp 786-89.
108. The points made in this paragraph and the last are brought together nicely by considering legislation that creates statutory tort liability for sex and race discrimination (P. Cane, Tort Law and Economic Interests, (Oxford: Oxford University Press, 2nd edn, 1996), 157-60). Such legislation, designed partly to achieve what courts could not, is redistributive in intent but operates in private law mode. For a useful discussion see J. Gardner, 'Discrimation as Injustice' (1996) 16 OJLS 353
109. See L. A. Kornhauser, 'The Normativity of Law' (1999) 1 American Law & Econ R 3.
110. See also H. Sheinman, 'Tort Law and Corrective Justice' (2003) 22 Law and Philosophy 21.
111. P. Cane, The Anatomy of Ton Law (Oxford: Hart Publishing, 1997);
112. Responsibility in Law and Morality (Oxford: Hart Publishing, 2002).
113. Posner also argues that while the common law is efficiency-promoting, statute law is not: Duxbury, above n 12, 409-10. Of course, not all private law is common law and not all public law is statute law. Failure to take account of this basic fact mars much private-law theory.
114. Many private law theorists confine their analyses to one or other of the traditional categories of private law - contract, tort, and so on - and make no claims about private law as such.
115. See, e.g. B. Zipursky, 'Philosophy of Private Law' in Coleman and Shapiro (eds), The Oxford Handbook of Jurisprudence and Philosophy of Law, 649-51.
116. 'Corrective' needs to be understood structurally in terms of correlativity. Understood narrowly in terms, for instance, of compensation for wrongs, it cannot even explain all of the law of obligations: See e.g. D. Klimchuk, 'Unjust Enrichment and Corrective Justice' in J. W. Neyers, M. McInnes and S. G. A. Pitel, 'Understanding Unjust Enrichment (Oxford: Hart Publishing, 2004);
117. L. Smith, 'Restitution: The Heart of Corrective Justice' (2001) 79 Texas LR 2115.
118. Crimes are typically prosecuted by state officials representing the public. But in some systems, victims of crime may bring 'private' prosecutions; and the paradigm criminal offence protects interests of individual victims.
119. See the next section.
120. e.g. R. C. Cooter, The Strategic Constitution (Princeton: Princeton University Press, 2000);
121. W. Bishop, 'A Theory of Administrative Law' (1990) 19 J of Legal Stud 489.
122. Cane, Responsibility in Law and Morality, ch 8.
123. The Idea of Private Law, 210-11.
124. J. Allison, A Continental Distinction in the Common Law: A Historical and Comparative Perspective on English Public Law (Oxford: Oxford University Press, 1996).
125. J. Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), 166 (original emphasis).
126. Weinrib, The Idea of Private Law, 210-12. It will be noted that in the preceding paragraphs I have assigned various different meanings to 'categorical'. This reflects (unexplained) diversity of usage in the literature.
127. Natural Law and Natural Rights, 178.
128. See above, n 24.
129. The Practice of Principle, 32 (at 34 he omits 'appropriately'). Coleman does not say why assault and battery are paradigmatically tortious. He may consider them (wrongly in my opinion) to be 'intentional' torts. Such emphasis on the agent's mental state would put his account in the mainstream of philosophical accounts of responsibility.
130. Coleman plausibly thinks that developing a 'general theory' of the 'special part' of tort law is unlikely to be possible. It does not follow, of course, that we do not need some theoretical account of what 'tortious' means. The substantive aspect of tort law on which corrective justice theorists concentrate is the account that it(s general part) provides of what it means to be responsible, as opposed to what our responsibilities are (according to tort law).
131. Klimchuk says that 'rights and duties in distributive justice are agent-general, in corrective justice...agent-specific (n 14 above, 50). On this basis, we might think that whereas the application of legal norms to individual transactions is corrective, making general rules governing classes of transactions is distributive.
132. For Weinrib, the distinction between corrective and distributive justice marks the boundary between the legal and the political.
133. Stephen Perry once took a similar view of tort law as a 'localised system of distributive justice': N 14 above.
134. e.g. Coleman, Risks and Wrongs, 350-55
135. D. Klimchuk, above n 12.
136. P. Cane, 'Tort Law and Distributive Justice' [2001] New Zealand LR 401, 415-9.
137. There is, of course, a further question about whether or not the best way to deal with such unfairness is to change private law: See e.g. S. Smith, Contract Theory (Oxford: Oxford University Press, 2004), 128-29.
138. For an argument that tort law ought to be abolished because the corrective justice principle on which it rests is retributively and distributively unfair see D. Wood, 'Retributive and Corrective Justice, Criminal and Private Law' in P. Wahlgren (ed.) Perspectives on Jurisprudence: Essays in Honor of Jes Bjarup (2004) 48 Scandinavian Studies in Law 541.
139. The Practice of Principle, 43-44.
140. Cane, above n 77 at 418
141. 'On the Division of Law-Making Labour (2005) 7 The Judicial Review 211, 228.