The limited autonomy of private law

American Journal of Comparative Law

Volumn 56, Issue 3, 2008, Pages 809-833

  Dagan, Hanoch ^a  

^a TEL AVIV UNIVERSITY   (Israel)

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EID: 49249117909     PISSN: 0002919X     EISSN: None     Source Type: Journal    
DOI: 10.5131/ajcl.2007.0028     Document Type: Conference Paper

References (115)

1. See Nils Jansen & Ralf Michaels, Private Law and the State: Comparative Perspectives and Historical Observations, 71/2 RABELSZ 345, 358-92 (2007).
2. See infra text accompanying notes 7-8.
3. See Ralf Michaels & Nils Jansen, Private Law Beyond the State? Europeanization, Globalization, Privatization, 54 AM. J. COMP. L. 843 (2007).
4. See, e.g., Jansen & Michaels, supra note 1; id.
5. See Hanoch Dagan, Just Compensation, Incentives, and Social Meanings, 99 MICH. L. REV. 134 (2000) [hereinafter Dagan, Just Compensation];
6. Daphna Lewinsohn-Zamir, In Defense of Redistribution through Private Law, 91 MINN. L. REV. 326 (2006). But see MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1780-1860 at 100-01 (1977) (the use of private law for the subsidization of economic growth makes it easier to "disguise underlying political choices" and to throw "a disproportionate share of the burden . . . on the weakest and least organized groups").
7. To clarify: the responsiveness to social values is limited to the task of prescribing private law rules, namely, justifying private law entitlements. My claim should not be confused with the discredited contention that in evaluating individual cases judges should make ad hoc judgments based on these values. See infra text accompanying notes 32, 49, & 60-62.
8. Edward L. Rubin, Punitive Damages: Reconceptualizing the Runcible Remedies of Common Law, 1998 WIS. L. REV. 131, 154. The distinction between private law adjudication and public law regulation is particularly blurred in some law and economics accounts of the common law.
9. See, e.g., RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 383-85 (6th ed. 2003).
10. See, e.g., ERNEST J. WEINRIB, THE IDEA OF PRIVATE LAW 3-14, 212, 214 (1995) [hereinafter WEINRIB, PRIVATE LAW];
11. Ernest J. Weinrib, Restitutionary Damages as Corrective Justice, 1 THEORETICAL INQUIRIES IN LAW 1, 3-5, 37 (1999) [hereinafter Weinrib, Restitutionary Damages].
12. Notice that here, as elsewhere in this essay, "state" should be read as synonymous with "public" or "collective," rather than with "government" or "national." For this helpful distinction, see Gunther Teubner, State Policies in Private Law? A Comment on Hanoch Dagan, The Limited Autonomy of Private Law 56 AM. J. COMP. L. 835 (2008);
13. Christiane C. Wendehorst, The State as the Foundation of Reasoning in Private Law, 56 AM. J. COMP. L. 567 (2008). See also infra note 26.
14. On the dialectical relation between law's coercion and its nature as a justificatory practice, see Hanoch Dagan, The Realist Conception of Law, 57 U. TORONTO L.J. 607, 622-37 (2007).
15. See supra note 8.
16. See Weinrib, Restitutionary Damages, supra note 8, at 6-7, 12, 24. See also, e.g., ROSS B. GRANTHAM & CHARLES E. F. RICKETT, ENRICHMENT AND RESTITUTION IN NEW ZEALAND 485 (2000).
17. See Walter Bryce Gallie, Essentially Contested Concepts, 56 PROCEEDINGS OF THE ARISTOTELIAN SOCIETY (New Series) 167 (1956).
18. See, e.g., JOSEPH WILLIAM SINGER, ENTITLEMENT: THE PARADOXES OF PROPERTY 7 (2000).
19. See Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710 (1917);
20. Joseph William Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 WIS. L. REV. 975. Nothing in the text should be interpreted as supporting the view that property is just a "laundry list" of substantive rights with a limitless number of possible permutations.
21. See Hanoch Dagan, The Craft of Property, 92 CALIF. L. REV. 1517, 1525, 1534 (2003) [hereinafter Dagan, Craft of Property].
22. The need for a normative defense of private law's distributive implications is not premised on any claim or presupposition that the reasons for its structure are distributive. Contra Ernest J. Weinrib, Restoring Restitution, 91 VA. L. REV. 861, 876 (2005) (reviewing HANOCH DAGAN, THE LAW AND ETHICS OF RESTITUTION (2004)) [hereinafter Weinrib, Restoring Restitution]. Rather, it is founded on their critical ramifications on people's lives.
23. Cf. James Gordley, The Purpose of Awarding Restitutionary Damages: A Reply to Professor Weinrib, 1 THEORETICAL INQUIRIES IN LAW 39, 41, 45, 48 (1999);
24. Robert L. Rabin, Law For Law's Sake, 105 YALE L.J. 2261, 2270 (1996);
25. Kenneth W. Simons, Justification in Private Law, 81 CORNELL L. REV. 698, 737 (1996);
26. Stephen A. Smith, The Idea of Private Law, 112 LAW Q. REV. 363, 365 (1996).
27. The proposition of the text needs to be qualified. Autonomists have advanced theories of property that purport to support a division of labor between a private law which is strictly libertarian and a public law which remedies the entailed deficiencies in terms of other values. See, e.g., Ernest J. Weinrib, Poverty and Property in Kant's System of Rights, 78 NOTRE DAME L. REV. 795 (2003). Although delving into the evaluation of the details of Weinrib's scheme - or other schemes of division of labor - would require an independent treatment, three conspicuous difficulties must briefly be mentioned here. First, Weinrib's account of why property rights at the stage of unilateral acquisition must be absolute and need not be tempered by something like the Lockean proviso is perplexing. Second, it is striking to me how much Weinrib's scheme is dependent on the optimistic - indeed unrealistic - assumption that public law can and does supplement private law with rules that sufficiently redistribute resources so that it remedies the distributive distortions of a value-monistic private law. Finally, even if (miraculously) such a tax and redistribution scheme does emerge, it would not ameliorate the distortions of such a private law system in terms of unjustified interpersonal dependence.
28. Cf. CRAIG ROTHERHAM, PROPRIETARY REMEDIES IN CONTEXT: A STUDY IN THE JUDICIAL REDISTRIBUTION OF PROPERTY RIGHTS (2002).
29. See Dagan, Craft of Property, supra note 15. See also, e.g., JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY 28 (1988) (Private property is a "complex bundle of relations," which are "in principle separable" and "differ considerably in their character and effect").
30. WILLIAM BLACKSTONE, 2 COMMENTARIES ON THE LAWS OF ENGLAND *2 (University of Chicago ed., 1979) (1765-69).
31. WEINRIB, PRIVATE LAW, supra note 8, at 124.
32. See Weinrib, Restoring Restitution, supra note 16, at 869-74.
33. As the text implies, cases in which the reasons for the parties' entitlements are correlative are indeed easier cases insofar as the integrity of private law is concerned. But this does and should not imply that they are the only cases, or that we should a priori assume that even if the reasons are not correlative, their implications with respect to the parties' entitlements will not be sufficiently convergent. See infra text following note 72.
34. Indeed, as the text implies, special attention is at times called to reasons for not allowing a private law claim and not just to reasons for allowing it. Thus, for example, enforcing certain competition rules may admittedly be furthered by providing not only regulators (and consumers) but also competitors with a cause of action. See Ofer Grosskopf, Protection of Competition Rules Via the Law of Restitution, 79 TEX. L. REV. 1981 (2001). But such an instrumentalist use of private law may be unfortunate overall if it facilitates bypassing the discretion of public officials, insofar as such discretion is aimed at continuously adjusting a policy of enforcing these rules so as to optimally serve the public interest.
35. In his Comment on this essay, Gue;nther Teubner refers to this as "the 'living legal relation' between the actors involved . . . their social interaction and . . . the broader social system in which their concrete relation is embedded." Teubner, supra note 9, at 842. Teubner makes a sharp contrast between "state policies and public values" and "the inner normativity of diverse social institutions." In Teubner's view, the former have no role in private law, while the latter is all important. Thus, he identifies private law's central role as the juridification of "diverse processes of decentralized spontaneous norm-formation in civil society" and the constitutionalization of "the autonomy of many diverse social configurations." Id. at 841. Insofar as Teubner seeks to emphasize the importance of private law's heterogeneity, I happily agree, as is evident from my realist conception of property discussed above. Furthermore, as long as it is clear, as Teubner states later in his Comment, that the internal values of these private law institutions are themselves (at least partly) public and collective, I also endorse his insistence that political and economic arguments can play a role if and only if they are compatible with these internal values.
36. Notice that this does not collapse my view into instrumentalism because unlike most instrumentalists I take seriously what I call "the additional justificatory burden", namely, the requirement that the plaintiff give reasons why someone in her predicament should be entitled to extract from someone like the defendant the kind of remedy she now requires.
37. On the concept of private attorney general, see, e.g., William B. Rubenstein, On What a "Private Attorney General" Is - and Why it Matters, 57 VAND. L. REV. 2129 (2004).
38. As in cases seeking market-share liability, see Sindell v. Abbott Labs., 607 P.2d 924, 935-38 (1980).
39. Cf. Alice Erh-Son Tay & Eugene Kamenka, Public Law - Private Law, in PUBLIC AND PRIVATE IN SOCIAL LIFE 67, 89 (S.I. Benn & G.F. Gaus eds. 1983).
40. See Dagan, Just Compensation, supra note 5, at 148-52.
41. Cf. JAMES GORDLEY, FOUNDATIONS OF PRIVATE LAW: PROPERTY, TORT, CONTRACT, UNJUST ENRICHMENT 11 (2006);
42. Peter Cane, Distributive Justice and Tort Law, 2001 N.Z.L. REV. 401.
43. As the text implies, and as is true of any legal theory, the one offered here must partly be assessed by its ability to perform across a range of practical questions. In particular, while my theoretical discussion established (I hope) that the underlying normative foundations of private law are not solely corrective, the plausibility of my stronger claim - that the structure of those extra-corrective normative foundations is perfectionist - is mostly demonstrated by the following reconstruction of some important doctrines.
44. See, e.g., NIGEL E. SIMMONDS, The Decline of Juridical Reason, in DOCTRINE AND THEORY IN THE LEGAL ORDER 121, 128, 130-31 (1984); WEINRIB, PRIVATE LAW, supra note 8, at 204-31.
45. See, e.g., Duncan Kennedy, The Stages of the Decline of the Public / Private Distinction, 130 U. PA. L. REV. 1249 (1982).
46. See, e.g., MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 102-09 (1987);
47. Karl E. Klare, The Public / Private Distinction in Labor Law, 130 U. PA. L. REV. 1358, 1384, 1417-20 (1982).
48. For early incarnations of this view, see, e.g., HANS KELSEN, PURE THEORY OF LAW 280-83 (Max Knight trans., 1967);
49. Morris R. Cohen, The Basis of Contract, 46 HARV. L. REV. 553, 589 (1933).
50. See, e.g., HANOCH DAGAN, UNJUST ENRICHMENT: A STUDY OF PRIVATE LAW AND PUBLIC VALUES (1997) [hereinafter DAGAN, UNJUST ENRICHMENT];
51. Gregory C. Keating, Rawlsian Fairness and Regime Choice in the Law of Accidents, 72 FORDHAM L. REV. 1857 (2004);
52. Anthony Kronman, Contracts and Distributive Justice, 89 YALE L.J. 472, 501 (1980).
53. Nothing in this claim implies the homogeneity of either side of the private-public divide. In particular, preserving the private-public distinction (as reformulated herein) does not impinge upon or undermine the heterogeneity of private law. See Hanoch Dagan, Legal Realism and The Taxonomy of Private Law, in STRUCTURE AND JUSTIFICATION IN PRIVATE LAW: ESSAYS FOR PETER BIRKS 147, 159-60 (Charles Rickett & Ross Grantham eds., 2008).
54. See DON HERZOG: HAPPY SLAVES: A CRITIQUE OF CONSENT THEORY 156, 166-68, 173-75 (1989).
55. See Nicholas Bamforth, The Public Law - Private Law Distinction: A Comparative and Philosophical Approach, in ADMINISTRATIVE LAW FACING THE FUTURE: OLD CONSTRAINTS AND NEW HORIZONS 136, 138 (Peter Leyland & Terry Woods eds., 1997).
56. See Carolyn J. Frantz & Hanoch Dagan, Properties of Marriage, 104 COLUM. L. REV. 75 (2004).
57. See, e.g., Marsha Garrison, The Economic Consequences of Divorce: Would Adoption of the ALI Principles Improve Current Outcomes?, 8 DUKE J. GENDER L. & POL'Y 119, 124 (2001).
58. See STEPHEN BUCKLE, NATURAL LAW AND THE THEORY OF PROPERTY 149-52 (1991);
59. STEPHEN R. MUNZER, A THEORY OF PROPERTY 255-56, 285-87 (1990). The text should not be read as an endorsement of Locke's tormented account of property, which has been extensively and persuasively criticized.
60. See, e.g., GOPAL SREENTVASAN, THE LIMITS OF LOCKEAN RIGHT IN PROPERTY (1995); WALDRON, supra note 20, at 137-252.
61. See, e.g., AMERICAN LAW INSTITUTE, PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS § 4.09, at 735 (2000);
62. MARY ANN GLENDON, THE NEW FAMILY AND THE NEW PROPERTY 63 (1981).
63. This is also why another proposed explanation, relying on the spouses' hypothetical consent, is dubious. See Frantz & Dagan, supra note 41, at 103.
64. The following paragraphs summarize the thesis developed in Frantz & Dagan, supra note 41.
65. Jansen & Michaels, supra note 1, at 364.
66. As Jansen and Michaels report, this use occurred "only shortly before . . . a principle of public utility eroded all individual liberty . . . and became the guiding measure of all law under the absolutistic, personal domination of the late [Roman] emperors." Id.
67. As the text implies, understanding marital property law as grounded in the ideal of marriage as an egalitarian liberal community yields suggestions for reform, both regarding the scope of the marital estate and its governance during an intact marriage. See Frantz & Dagan, supra note 41, at 106-19, 124-32 (endorsing a broad definition of the marital estate that encompasses any changes effected during the tenure of marriage in the spouses' earning capacity, and a recognition of both spouses' interests in the marital estate as present and vested during the marriage rather than as mere expectancies that are only meaningful upon divorce).
68. See, e.g., LENORE J. WEITZMAN, THE DIVORCE REVOLUTION: THE UNEXPECTED SOCIAL AND ECONOMIC CONSEQUENCES FOR WOMEN AND CHILDREN IN AMERICA 323-56 (1985).
69. See Susan Moller Okin, Justice, Gender, and the Family 147 (1989).
70. See Martha L. Fineman, Implementing Equality: Ideology, Contradiction and Social Change, 1983 WIS. L. REV. 789, 827-30.
71. For a critique of other attempts to explain rehabilitative alimony, see Frantz & Dagan, supra note 41, at 119-21.
72. See John C. Williams, Annotation, Propriety in Divorce Proceedings of Awarding Rehabilitative Alimony, 97 A.L.R.3D 740, 743-44 (1980).
73. Cf. Peter Cane, Corrective Justice and Correlativity in Private Law, 16 OXFORD J.L. STUD. 471, 481-82 (1996).
74. This was first noted in Daniel Friedmann, Restitution of Benefits Obtained through the Appropriation of Property or the Commission of a Wrong, 80 COLUM. L. REV. 504, 512-13, 556-57 (1980).
75. For a fuller account, see DAGAN, UNJUST ENRICHMENT, supra note 37, at ch. 4.
76. Id. at ch. 2.
77. "Objective" is used here in the sense that the protected utility does not include any psychological utility an owner may produce merely by control over the resource.
78. See Weinrib, Restitutionary Damages, supra note 8.
79. This is why where the risk of under-enforcement is serious and systemic, the law should apply - and frequently does apply - a multiplier. See infra note 68 and accompanying text.
80. Cf. Ariel Porat, Questioning the Idea of Correlativity in Weinrib's Theory of Corrective Justice, 2 THEORETICAL INQUIRIES IN LAW 161, 172, 174 (1999).
81. Ernest J. Weinrib, Punishment and Disgorgement as Contract Remedies, 78 CHI.-KENT L. REV. 55, 90-91 (2003) [hereinafter Weinrib, Punishment and Disgorgement].
82. As the text implies, I am not claiming that no such reasons could be adduced. See, e.g., Dan M. Kahan, Privatizing Criminal Law: Strategies for Private Law Enforcement in the Inner City, 46 UCLA L. REV. 1859 (1999).
83. See, e.g., CESARE BECCARIA, ON CRIMES AND PUNISHMENT 58 (Henry Paolucci trans., Bobbs-Merrill 1963) (1764) ("the right to inflict punishment is a right not of an individual, but of all citizens, or of their sovereign");
84. ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 138 (1974) ("the victim occupies the unhappy special position of victim and is owed compensation, [but] he is not owed punishment").
85. See Weinrib, Punishment and Disgorgement, supra note 63, at 91, 98.
86. See also Marc Galanter & David Luban, Poetic Justice: Punitive Damages and Legal Pluralism, 42 AM. U. L. REV. 1393, 1432 (1993).
87. See Hanoch Dagan & James J. White, Governments, Citizens, and Injurious Industries, 75 NYU L. REV. 354, 420-22 (2000).
88. See, e.g., Kevin Gray & Susan Francis Gray, Civil Rights, Civil Wrongs and Quasi-Public Space, 1 EUR. HUM. RIGHTS L. REV. 46 (1999).
89. Because I do not find the distinction between private and public law necessarily hermetic, I tend to be sympathetic to the idea that public law values can inform private law doctrines. The circumstances in which such influence, as well as its manner and degree, would be viewed as legitimate, cannot be determined a priori but should rather be prescribed according to whatever seems appropriate for the category at hand.
90. There are also other manifestations of such a right to entry which are best explained by reference to the values of property, notably the doctrine of necessity. See GORDLEY, supra note 32, at 130-39.
91. Cf. Joseph W. Singer, No Right to Exclude: Public Accommodations and Private Property, 90 NW. U.L. REV. 1283, 1303, 1466 (1996).
92. Other contexts where the property value of welfare (or utility) is prominent are also likely to be amenable to a similar conclusion. Generally, allocating the entitlement to determine the time and terms of a resource's use with its owner is efficient but may, in some cases, do a disservice to social welfare if the law were to strictly sanction an owner's refusal to sell or lease (generally or to a certain subset of potential entrants). One such well-known category of cases involves instances where high transaction costs, caused by the number of parties involved or by their placement in a bilateral monopoly, is likely to preclude efficient transactions. See respectively Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089, 1094-95 (1972);
93. Stewart E. Sterk, Neighbors in American Land Law, 87 COLUM. L. REV. 55, 70-74 (1987). In such cases, the correlativity constraint applies quite straightforwardly because when welfare is the justification of property, it would ex ante curtail the right to exclude when this right is likely to be welfare-reducing, while prescribing the corresponding rights to entry when they are welfare-enhancing.
94. See JERAMY WALDRON, Homelessness and the Issue of Freedom, in LIBERAL RIGHTS 309 (1993);
95. Joseph William Singer, Rent, 39 B.C.L. REV. 1, 39 (1997).
96. Hanoch Dagan, Takings and Distributive Justice, 85 VA. L. REV. 741, 752 (1999).
97. See Joseph William Singer & Jack M. Beermann, The Social Origins of Property, 6 CAN. J.L. & JURISP. 217, 228, 242-45 (1993) (arguing that property requires "an ongoing commitment to dispersal of access" and insisting that we design our property system so that it dynamically ensures that "lots of people have some" property and that "pockets of illegitimately concentrated power" - i .e., property - do not re-emerge).
98. For a synthesis of the philosophical and social-scientific literature on the subject, see DAGAN, UNJUST ENRICHMENT, supra note 37, at 38-42.
99. See Margaret Jane Radin, Residential Rent Control, 15 PHIL. & PUB. AFF. 350 (1986).
100. For another argument for the right to entry based on the Hegelian account of the personhood theory of property, see William N.R. Lucy & Francois R. Barker, Justifying Property and Justifying Access, 6 CAN. J.L. & JURISP. 287, 309-17 (1993).
101. See generally Hanoch Dagan & Michael A. Heller, The Liberal Commons, 110 YALE L.J. 549 (2001).
102. See Gregory S. Alexander, Dilemmas of Group Autonomy: Residential Associations and Community, 75 CORNELL L. REV. 1, 37-39, 51-52 (1989);
103. Clayton P. Gillette, Courts, Covenants, and Communities, 61 U. CHI. L. REV. 1375, 1394-95 (1994).
104. See Elinor Ostrom, Community and the Endogenous Solution of Commons Problems, 4 J. THEORETICAL POL. 343, 347-50 (1992).
105. See Eyal Benvenisti,"Separate but Equal" in Allocating Israeli Land for Residency, in LAND LAW IN ISRAEL: BETWEEN PRIVATE AND PUBLIC 547, 553-65 (Hanoch Dagan ed., 1999) [Heb.].
106. See Dagan & Heller, supra note 78, at 571.
107. See Kevin Gray, Equitable Property, 47(2) CUR. LEGAL PROBS. 157, 213 (1994).
108. See, e.g., Roderick M. Hills, Jr., You Say You Want a Revolution? The Case against the Transformation of Culture through Antidiscrimination Laws, 95 MICH. L. REV. 1588, 1592-1614 (1997).
109. See Gillette, supra note 79, at 1437-39.
110. See generally Fair Housing Act, 42 U.S.C. 3601 (2006).
111. See Gray, supra note 83, at 173-74.
112. See Singer, supra note 71, at 1476.
113. For the history of this doctrine, see Gray & Gray, supra note 68, at 80-100; Singer, supra note 71.
114. Therefore, we cannot rule out a priori that the use of consumer law for furthering market competition and trade could be justified without violating the correlativity constraint of private law. But cf. Jansen and Michaels, supra note 1, at 355-56, who argue that it "can be understood only from an instrumentalist point of view."
115. As the text implies, I believe that from a qualitative and substantive - as opposed to quantitative and institutional - perspective, globalization need not, indeed should not, make a difference to private law. Private law was, is, and should remain the law governing various types of horizontal spheres of relationships deserving of critical, interpretive respect. Thus, globalization may affect the level of institutions which should shape the future development of private law - it may require that some irarasnational body scrutinize its content vis-à-vis our global collective ideals about the important social institutions governed by its rules. But this does not, or at least need not and should not, change the interpretive discourse which characterizes private law at its best, as I have attempted to demonstrate in this essay.