Private Law: Commutative or Distributive?
| DOI | http://doi.org/10.1111/1468-2230.12068 |
| Date | 01 March 2014 |
| Published date | 01 March 2014 |
REVIEW ARTICLE
Private Law: Commutative or Distributive?
Dan Priel*
Allan Beever,Forgotten Justice: The Forms of Justice in the History of Legal
and Political Theory, Oxford: Oxford University Press, 2013, xvi+325 pp, hb
£50.00.
THE NOSTALGICS
Tort law, we are told, is under threat. There was a time when people understood
its deep structure, its underlying logic, what it was about. Those days are now
gone. Nicholas McBride described the results of this change in near apocalyptic
terms: ‘the study of tort law has undergone a . . . catastrophe at some point in the
twentieth century, with the result that we no longer really understand what we
are talking about when we talk about tort law.’1Less ominously, others have also
harked back to older times when tort law was better understood and complained
how ‘we’, or at least ‘they’ (other academics, the courts), no longer understand
the law. Ernest Weinrib wondered whether tort law ‘[has] a future’.2John
Goldberg and Benjamin Zipursky waxed sentimental for that ‘domain of law that
was born centuries ago with the recognition of the writ of trespass vi et armis’ and
wondered ‘[h]ow is it that academics have lost their feel for this basic legal
category?’3Robert Stevens admitted his views on tort law were ‘conservative’,4
and challenged many ideas that dominated twentieth century tort law thinking.
*Associate Professor, Osgoode Hall Law School, York University. I thank Vincent Chiao, David
Howarth, and an anonymous referee for their comments. A longer version of this essay is on file with
the author and will be made available online in due course. It expands on this essay in two main ways.
First, I argue there that the traditional view as Beever presents it does not match legal doctrine; second,
it contains an appendix that examines in detail Beever’s presentation of the work of past philosophers.
1 N. J. McBride, ‘Rights and the Basis of Tort Law’ in D. Nolan and A. Robertson (eds), Rights in
Private Law (Oxford: Hart Publishing, 2011) 331, 332. McBride models his story on A. MacIntyre,
After Virtue: A Study in Moral Theory, (Notre Dame: Notre Dame University Press, 3rd ed, 2003).
This is a rather odd choice for inspiration, as one of the ideas After Virtue is most famous for is that
‘there are no such [things as natural or human] rights, and belief in them is one with belief in
witches and in unicorns’, ibid, 69. McBride, by contrast believes that the source of the present
‘catastrophe’ is forgetting that tort law is a matter of rights and duties.
2 See E. J. Weinrib, ‘Does Tort Law Have a Future?’ (2000) 34 Valparaiso U L Rev 561.
3 J. C. P. Goldberg and B. C. Zipursky, ‘Torts as Wrongs’ (2010) 88 Texas L Rev 917, 919.
4 R. Stevens, Torts and Rights (Oxford: OUP, 2007) 348. Admittedly, though unhappy about some
developments in the ‘1970s and 1980s’, ibid, 349, Stevens seems more content with present-day
English tort law. But like other nostalgics, he is critical of much of contemporary tort scholarship.
See ibid, 306–307.
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© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. (2014) 77(2) MLR 308–331
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Allan Beever has been part of this chorus of nostalgics for quite some time. In
a book published in 2007 he told his readers that the present problem with the
law of negligence is that its ‘unity . . . has been forgotten’ and that we therefore
have to ‘rediscover’ it.5In his new book, he extends his argument in two ways:
First, it is not just the unity of negligence law that’s been forgotten, but that of
the entire private law; and it is not just the law that has been forgotten, but the
entire form of justice that underlies it. We have come to think of the world
exclusively through the lens of distributive justice, so that we no longer see that
private law embodies a distinct form of justice, commutative justice. (Beever
prefers ‘commutative’ to ‘corrective’ justice to highlight the fact that it is
concerned not just with responses to wrongs, but with all interpersonal relations.)
The source of all this is a philosophical confusion: the ‘traditional’ view he
favours sees law (ie the natural law that exists pre-politically and that governs
interpersonal relationship) as the foundation of political authority; the prevalent
modern view reverses the relationship and sees all law as the product of
politics (6).
This may seem like a rather abstruse debate but Beever thinks it has significant
real-world ramifications: ‘the modern conception leads us to misunderstand our
law’ (273), it made us forget ‘what we ourselves know’ to be true (242); it has
even ‘distorted our view of ourselves’ (309). As an aid to failing memory, the
book presents a historical account that seeks to chart the path that has led to our
present unhappy state. Beever takes his readers on a tour through the works of
some of the best known names in the history of Western philosophy with the
aim of demonstrating how what ‘we’ once knew has become unknown. The
story follows the familiar arc of rise and fall, with the traditional view getting its
first articulation in ancient Athens, developing slowly until it reaches its apex in
the work of Immanuel Kant. By then, however, the forces of decline have
already begun to wreak havoc, and by the time we get to the present the modern
view ‘has become unconscious’ (2); so unconscious that Beever does not expect
the traditional view to ‘make much sense to the reader, at least not until she has
finished reading [the] book’ (1). Nevertheless, it is an effort worth making,
because the stakes could not be higher. The dominance of the modern view is
not just of theoretical concern, it has had a terrible practical effect on our lives:
it has led us to rely on the state to such a degree that we may soon unwittingly
be descending towards totalitarianism (291), caring too much about the
community and not enough about individuals and ‘overemphasiz[ing] the
importance of the state’ (309).
These are very bold claims, but as I hope to show Beever does not provide
anything remotely sufficient to substantiate them. The following three sections
provide some of evidence to challenge Beever’s claims. The next section then
shows the weakness of Beever’s more theoretical claims. The final section argues
that contrary to Beever’s claims that the traditional view provides a non-political
foundation for private law, Beever’s views have a clear political orientation.
5 A. Beever, Rediscovering the Law of Negligence (Oxford: Hart Publishing, 2007) 512–513, where
Beever also mentions other aspects of the law that have been forgotten.
Dan Priel
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. 309(2014) 77(2) MLR 308–331
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