Monday, October 31, 2016
I’ve been reading Arthur Ripstein’s exceptionally interesting new book Private Wrongs the past few days, and there is a thoughtful review of it here by Lewis Kornhauser (NYU). One of Ripstein’s previous books was a deep and interesting engagement with Kant on law, and Private Wrongs applies a kind of Kantian view about moral independence to the law of torts. I agree wholeheartedly with Ripstein’s rejection of Holmes-esque invocations of “policy” in torts (more about which here), but I suspect Kornhauser is on to a possible problem in Ripstein’s argument:
Prevailing tort law plays a distinctive role in his argument. On his account, though tort law instantiates the moral idea of independence, "the law . . . appear[s] as an exporter rather than an importer of those [moral] ideas." (p. 21) Legal doctrine thus serves as a normative baseline. It is unclear, however, how doctrine can perform this function. At least in the context of wrongs to property, the legal rule itself determines the content of the property right. Trespass to land, for instance, requires a "wrongful" interference with an agent's interest in land. But the tort rule itself determines the structure of the agent's property right. One requires an independent ground to determine the baseline property right.
Or as Ripstein writes (when clarifying that his account is not “prescriptive in one familiar sense of that term”) a page before the sentence just quoted, “The prescriptions that I make are not from a standpoint outside of what is presupposed in the legal materials I seek to render intelligible” (p. 20). The key issue, it seems to me (ready? here comes the natural law point), is that a judgment of what counts as the relevant legal materials and their “intelligib[ility]” depends on some evaluative standpoint that legal doctrine can't provide on its own (though I'm not sure that Ripstein is committed to denying that given what he writes in the rest of the book).