The Idea of Private Law

Rating:
Summary: A Uniquely Important Work
Review: I am no fan of legal formalism as such. Nevertheless, I think this book is the most sophisticated account of legal formalism in the twentieth century. Weinrib's synthesis of Aristotle, Aquinas, Kant and Hegel is brilliant. A very exciting and provocative work of original scholarship.

Rating:
Summary: A good stuff for a poor theory
Review: This book gathers a good amount of scholarship to purport the idea that the governing principles underlying private law doctrines are still the old principles of Aristotelian commutative and corrective justice. In so doing the author does not take into proper account the teachings of the last 40 years studies in Law and Economics showing how the issue of distributing a private cost cannot be handled in terms of the old corrective justice. Thus the book provides a foundation for private law which to-day is peculiarly outdated.

Rating:
Summary: A case for the immanent rationality of private law
Review: This brilliant volume is one of the single most important works on legal philosophy written in recent years.

A grand synthesis of Aristotle, Kant, and Hegel with undertones of Oakeshott, it's not easy to summarize. But here's a short (and inadequate) statement of Weinrib's thesis: private law is an immanently rational process of implementing corrective justice according to internal standards that cannot be reduced to something outside of the law itself; its aim is to set right, insofar as possible, the relationship between the doer and the sufferer of a harm.

The astute reader will already have noticed that Weinrib is at odds with "law and economics" -- and, sure enough, his short critiques of that field are devastatingly on target. The reviewer below who thinks Weinrib has ignored everything since Coase must not have been reading very carefully: in one sense, at least, Weinrib is concerned precisely to _rescue_ private law from the law-and-econ crowd, as well as from any other law-and-anything crowd who insists that law must be understood in terms of, and indeed reduced to, something else. His major claim is that it can't be.

My own view, at least, is that Weinrib is entirely right on his main point: i.e., that private law has internal standards that can't be reduced to something external. In particular, private law seeks corrective justice and not "economic efficiency," at least insofar as the latter is understood as the maximization of total "wealth" at the possible expense of what would ordinarily be called justice. (And it certainly has no truck with the sort of mathematically-ratified injustice known to the world as "Kaldor-Hicks efficiency.")

Weinrib's discussion of the famous Hand formula and his comparisons of U.S. with British common law on this topic are just wonderful. Between his theoretical work and Gary Schwartz's empirical analysis -- not to mention the criticisms of other writers like Richard Wright and Ronald Dworkin -- the Posner gang really should lie down and not get up again.

However, as much as my philosophical sympathies are with Weinrib, I must disagree with a point or two. I'll take his treatment of negligence in tort law as my source of examples, since I just finished rereading that chapter last night.

I am not, for example, overwhelmed by his discussion of the famous Palsgraf case. Weinrib takes J. Cardozo's side in this case and castigates J. Andrews's dissent for somehow missing the point of tort law. But even if this were true (and I don't think it is), what, exactly, would it show? That Andrews was just wrong? Or that tort law's immanent standards (on Weinrib's account thereof) are insufficient to deal with some cases with which tort law really ought to deal?

If we can even sensibly ask this question -- and surely we can -- then it is not enough to insist on tort law's internal standards; those standards themselves may in turn require justification in terms of whatever it is that tort law _is_ founded on. (Not "reduction to," but "justification in terms of." I am not sure Weinrib always distinguishes these as carefully as he might.) True, Weinrib does maintain that private law is founded on the principles of corrective justice (and, by implication, that these principles are rationally apprehended). But he sometimes writes as though it just floats in a vacuum somewhere, blessedly free of commerce with any other human activities at which we might otherwise have to look in order to determine exactly what _is_ just under specific circumstances. (This is one of those Oakeshott-like undertones I mentioned. In my view Oakeshott, too, tended to overstate the degree to which any "mode of experience" can be isolated from the rest.)

Moreover, some of Weinrib's arguments on specific points seem hard to tie in to his main thesis. For example, he opposes the use of "probabilistic causation" in tort law on the grounds that tort law deals only with normative harms, not with the "mere" increased risk of normative harms. But the argument is not forthcoming that placing someone at significantly increased risk is not _also_ a normative harm in its own right.

And some such argument is badly needed, since knowledge that e.g. one has been subjected to an increased risk of cancer does seem to involve positive harm already even if one hasn't developed cancer yet. It is at least arguable that one has been harmed by one's present worry and distress (not to mention the relevant medical expenses involved in checking to make sure one _doesn't_ have cancer).

If so, then Weinrib's own regime can take account of "probabilistic causation" very easily, and indeed should do so rather than reject it outright. I agree with Weinrib (contra some other recent writers) that tort law ought not to throw out the concept of "causation" entirely; I'm just not persuaded that this point takes him as far as he seems to want to go. It appears to me that his theoretical foundations could be invoked as easily to justify as to eliminate some of the innovations he might prefer to dispose of.

What is most helpful in this volume, then, is Weinrib's careful insistence that private law _is_ immanently rational and possesses coherent internal standards that are not reducible to something in some other field. But what seems to be missing is an account of why private law has just exactly those internal standards Weinrib says it has, and why it shouldn't recognize any others even if it can be shown that it can do so coherently.

At any rate, Weinrib's work is brilliant from beginning to end. My comparatively minor disagreements with particular points and sub-points should not obscure my major agreements with much of his overall approach.