Private Wrongs
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Private Wrongs

Arthur Ripstein

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eBook - ePub

Private Wrongs

Arthur Ripstein

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A waiter spills hot coffee on a customer. A person walks on another person's land. A moored boat damages a dock during a storm. A frustrated neighbor bangs on the wall. A reputation is ruined by a mistaken news report. Although the details vary, the law recognizes all of these as torts, different ways in which one person wrongs another. Tort law can seem puzzling: sometimes people are made to pay damages when they are barely or not at fault, while at other times serious losses go uncompensated. In this pioneering book, Arthur Ripstein brings coherence and unity to the baffling diversity of tort law in an original theory that is philosophically grounded and analytically powerful.Ripstein shows that all torts violate the basic moral idea that each individual is in charge of his or her own person and property, and never in charge of another individual's person or property. Battery and trespass involve one person wrongly using another's body or things, while negligence injures others by imposing risks to them in ways that are inconsistent with their independence. Tort remedies aim to provide a substitute for the right that was violated.As Private Wrongs makes clear, tort law not only protects our bodies and property but constitutes our entitlement to use them as we see fit, consistent with the entitlement of others to do the same.

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Retrieving the Idea of a Private Wrong

A TORT IS A PRIVATE WRONG that one private person commits against another. The aggrieved party comes before a court on his or her own initiative, seeking a remedy against the alleged wrongdoer. The factual situations that give rise to tort actions are diverse, yet familiar. A pedestrian is hit by a motorist who is texting while driving; a careless waiter spills scalding hot coffee on a customer; a physician fails to close a wound properly, or closes it, leaving an instrument in the patient’s abdomen; a perfectly tame circus elephant escapes and tramples someone’s home; a dam bursts; a neighbor’s barking dog keeps someone awake at night; someone mistakenly enters and collects wood from somebody else’s land; a stranded hiker breaks into a cabin in a storm; artworks are looted from the homes of fleeing refugees; a manufacturer calculates that an unsafe product will generate more revenue than the cost of compensating those it injures; an angry neighbor makes a noise so as to disrupt a nearby business he dislikes; a carefully researched but erroneous news report ruins someone’s reputation. In each of these examples someone complains, not only of another’s wrongdoing, but that she or he in particular has been wronged. The claimant comes before the court to demand a remedy, which is supposed to repair that very wrong.

1. Retrieving the Idea of a Private Wrong

Despite the familiarity of its subject matter, tort doctrine can seem puzzling from the perspective of prominent ideas in legal scholarship and moral and political philosophy. In some of the above examples, such as the hiker in the storm, or the person who mistakenly enters another’s property, or the carefully researched news report that ruins someone’s reputation, it looks as though a morally innocent person is legally liable. In others, one person is held liable while another, who was equally careless, is not—perhaps the pedestrian hit by the texting driver was injured just before a second, third, or fourth texting driver passed by. Tort doctrine is also puzzling because of the problems that it chooses to ignore: Although the person who suffers discomfort from sunlight reflected from a neighbor’s glass roof gets a remedy,1 the person whose hotel is rendered worthless by a shadow cast over its beach area does not;2 the person who slips and falls gets a remedy, but someone who dies or is injured while another person stands by and does nothing has no legal complaint against that person.
The past century of legal scholarship has made tort law more, rather than less, puzzling. Oliver Wendell Holmes Jr. set the agenda for most subsequent writing about torts by arguing that the moral language of duty, right, and obligation is really just a misleading cover for concerns about consequences and social policy. For Holmes, the only real question in tort litigation is “who wins?” and that question can be answered only in a resolutely forward-looking way. He remarked that the law “abounds in moral phraseology,”3 and nowhere does he seem to think that this is more apparent than in the law of torts. Holmes is dismissive of talk of rights and duties, characterizing the Latin maxim sic utere tuo ut alienum non laedas—use what is yours in a way that does not injure your neighbor—as “a benevolent yearning.”4 At best, he suggests that such fine phrases actually function as a smokescreen for decisions that are made on grounds of something he calls “policy,”5 in the face of which all juridical distinctions dissolve.
Some academics and judges have followed Holmes’s lead. Guido Calabresi describes “right” as a “weasel word” behind which judges hide their policy choices;6 Lord Denning wrote, “the truth is that 
 duty, remoteness and causation, are all devices by which the courts limit the range of liability for negligence or nuisance 
 The law has to draw a line somewhere. Ultimately it is a question of policy which we, as judges, have to decide.”7 Both Calabresi and Denning suppose that a private dispute provides a judge with a convenient (if not welcome) opportunity to make and implement broad policy judgments about more general societal problems. On this view, both the rights of the parties and the remedies awarded must be understood as instruments, available for whatever purpose officials think best. This idea that judges operate under such a general power-conferring rule8 and struggle to disguise their choices gets much of its impetus from the supposed impossibility of taking remedies at face value.
A century of Holmes-inspired scholarship has proposed a wide range of policy purposes and postulated even more mechanisms through which the law might be seen to realize them. Often, however, what began as an explanatory enterprise becomes prescriptive or even abolitionist, when the author realizes that tort law is a wasteful or ineffective way of realizing whatever he or she initially contended was its underlying purpose.
I believe that these modes of thinking are the product of losing sight of a simple way of thinking about private wrongs, one that is both morally and legally familiar.9 When a plaintiff brings a tort action against the defendant, the basic form of the complaint is “the defendant is not allowed to do that to me,” rather than any of “the defendant is not allowed to do that,” “this can’t be allowed to happen to me,” or even “I demand compensation.” The plaintiff goes to court seeking a remedy, but the ground of the remedy is what the plaintiff contends is a wrong. On this simple and familiar picture, the point of the remedy is to make up for the wrong; the remedy is meant as a substitute for some right that was infringed.10 By its nature, a substitute is not an equivalent; a substitute is a deficient version of an equivalent. The point of the substitute is to make up for something, even if that something cannot be made up for completely. What needs to be made up is not an object, but the plaintiff’s entitlement to constrain the defendant’s conduct. That is, the plaintiff’s right is not extinguished by being violated.
These ideas—that a tort is a private wrong, and that the point of a tort action is to correct or remedy a wrong—are very old. Aristotle describes courts in such cases as doing “corrective justice,” which he characterizes in explicitly transactional terms: The point of corrective justice is to reverse a transaction. In recent decades scholars have revived this idea. Most prominently, Ernest Weinrib has argued that any policy-based account of tort law cannot explain the most fundamental feature of a tort action—the fact that the court is addressing a dispute between two private parties and asks only about whether the plaintiff currently before the court is entitled to a remedy from the defendant currently before the court.11 The plaintiff does not come before a court to enforce a general moral norm or assist in the pursuit of a general public policy; the demand for a remedy is against the very person who is alleged to have wronged that very plaintiff. Nor does the plaintiff demand to be put back in the position he or she would have been in, in the service of a policy of seeing to it that people have the objects of their rights. That policy would apply regardless of why the plaintiff no longer had it. Both the dispute and its resolution are bipolar: the only issues concern the past transaction between the parties. The remedy depends on the transaction between the parties because the wrong to which it is a remedy must be understood in terms of the relation between them, not in terms of any feature particular to only one of them.
Weinrib argued that any policy purpose being pursued through tort litigation inevitably focuses exclusively on one or the other of the parties. The prominent suggestion that the point of tort liability is to encourage better behavior looks only to the effect on people not currently before the court; the defendant is of interest only to be held up as an example to influence others, and the particular plaintiff is not relevant to the inquiry. Conversely, any concern with compensation for the injured plaintiff has no explanation of why the particular defendant who wronged the plaintiff should be the one to provide it. Any combination of such purposes will at most explain why the defendant before the court should be made to pay damages to some person or organization, and why the plaintiff before the court should be entitled to receive compensation from some source, thereby failing to explain the nexus between this plaintiff and this defendant. The point of the bipolarity critique is that any instrumental account will represent this familiar and fundamental feature of a tort action as merely accidental. Working backward from this feature of a tort action, Weinrib defended the familiar pre-Holmesian thought that the point of a remedy must be understood in terms of the right the violation of which it repairs.
Corrective justice accounts have met with vigorous resistance. One response has been to suggest that the failure of instrumental accounts to explain legal doctrines and processes simply shows that those doctrines and processes should be changed.12 A different line of objection charges that the idea that a wrong can be remedied is an illusion; what is done is done, and a court cannot change the past.13 Still another complaint is that such an account must ultimately be empty because no noninstrumental explanation is available as to why courts would take an interest in reversing or correcting some transactions but not others. Instead, it is sometimes suggested, a system of corrective justice must borrow its content from a substantive theory of which purposes and activities are most important.

2. The Main Ideas

I think that Weinrib has the better of his debate with the instrumentalist, and I share his conception of wrongs as violations of rights and remedies as substitutive. But I defend these conclusions by a different route. Rather than working backward from a tort action, my account moves in the opposite direction, starting from the moral idea that no person is in charge of another. I develop an account of that idea, and use it to generate distinctions between the different types of private wrongs, each of which, except for defamation, is organized in terms of the use of means. I provide an explanation of the familiar divisions of tort law in terms of the consistent use of means. Defamation receives a separate treatment, because it is not concerned with the use of means, but is an application of the same idea of no person being in charge of another to imputations of wrongdoing. I argue further that the normative relationship through which one person is not in charge of another continues to hold even after a wrong has been committed, and so, like Weinrib, arrive at the conclusion that the particular plaintiff recovers from the particular defendant because of the right that was violated.
Although the point of a remedy is to provide a substitute for the right violated, I have sought to avoid putting the point in terms of “correction.” Despite its distinguished pedigree, talk of corrective justice has led some people to suppose that the organizing idea is exclusively remedial,14 that it applies only in cases in which the plaintiff’s loss is matched by an equivalent gain by the defendant, or that the point of the remedy is to replicate an antecedent factual situation, something that cannot be done in cases of loss, because any restoration of the plaintiff must come at the defendant’s expense. But that isn’t it at all. Instead, both right and remedy must be understood relationally.
I will develop this account by focusing on norms of conduct and will say almost nothing about remedies or liability until Chapter 8. Remedies are remedial, and for that reason secondary: They give continuing effect to the norms of conduct even after those norms have been violated. Ordinarily a dispute only makes it to court if one party seeks a remedy from the other. But although disputes provide the impetus for litigation, the rationale for the remedies is to be understood in terms of the norm of conduct, and applies even when the factual state of affairs cannot be restored. But, I will argue, only certain norms of conduct are capable of and require remedies in this way. I will argue that the point of a remedy is to protect what people already have: their person (understood as bodily integrity and reputation) and property. Tort law is a system that not only protects but constitutes each person’s entitlement to use their bodies and property as they see fit, consistent with the entitlement of others to do the same, by specifying the terms of consistent use of means.
The morality of interaction to which tort law gives effect—the idea that others must not interfere with your body, property, or reputation—rests on a few simple ideas: first, that human beings are active beings who are entitled to set and pursue their own purposes, restricted only by the like entitlement of others to do the same; second, that the rights to which this norm of interaction gives rise survive their own violation; third, that no person ever needs to clear his or her own name. These three ideas are interrelated: Your entitlement to set and pursue your own purposes, to use your body and property as you see fit, is not changed when someone violates your right, and the point of the remedy is not to return things to the antecedent factual state of affairs, but rather to uphold the wronged party’s entitlement that others restrict their conduct. The right to reputation is slightly different, in that a good reputation does not figure in your setting and pursuit of your purposes. Instead, it is an application of the same idea of no person being in charge of another to imputations of wrongdoing; if another person imputes a wrong to you, you do not need to defer to the imputation; you are entitled to demand that it be established or withdrawn. The idea that no person is the superior or subordinate of another—captured in the Roman law idea that each person is sui iuris—includes the right to demand that anyone who alleges wrongdoing establish it. This idea underlies and organizes the law of defamation.
Rather than importing content from some more general moral or economic theory, I argue that the rights enforced by tort law are specific to the form of interaction appropriate to free beings. The restrictions governing such beings focus on the ways in which they pursue their purposes, rather than on the content of those purposes. A system of private rights is a sy...

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