The Autonomy of Private Law
8.1. Introduction
In the preceding chapters I presented a formalist account of the private law relationship. As I noted, formalism concentrates on the linkage of a particular plaintiff to a particular defendant. To explicate this linkage formalism deploys three theoretical notions: First, the notion of form brings together the aspects of character, kind, and unity; when applied to the private law relationship, form reflects the justificatory necessity of coherence. Second, corrective justice, as the form of private law, represents the bipolar structure of doing and suffering. Third, Kantian right normatively grounds corrective justice in free and purposive agency. Understood in the light of these three elements, private law, as illustrated in my discussion of tort liability, treats the doing and suffering of harm as a single normative unit.
In this chapter I complete the circle of exposition by returning to the claim adumbrated at the beginning of this book, that private law is autonomous and nonpolitical. Turning from substance to process, from specific tort doctrines to the role of courts as expositors of juridical reason, I elucidate the public nature of corrective justice when actualized in an operating system of private law. By considering the relationship between the formalist idea of private law and the concrete particularity of the social life that private law governs, I attempt to show how private law can be autonomous without being detached from social reality, and how corrective justice can become public without being political.
Assumptions about the formalist conception of legal autonomy account for much of formalism’s current disfavor. Scholars regard formalism as a necropolis of lifeless abstractions that repel meaningful contact with the movement and vitality of social interaction. Formalism is dismissed as “the dogma that legal forms can be understood apart from their social context.”1 The abstractness of formalism is equated with a withdrawal from social and historical situatedness. Formalism is therefore thought to be incapable of comprehending the concrete legal reality that it claims to illuminate.
This view of formalism’s separation from the world is matched by a view of its operation on the world. The formalist is alleged to construe legal analysis as the geometrical working out of the logical conclusions of a limited number of axioms. Formalism’s procedures are said to be deductive and to ignore the inevitable indeterminacy inherent in the application of legal rules. Such indeterminacy purportedly can be handled only by reference to the political.2
These criticisms originate in the conceptual nature of formalism. The formalist’s concepts are thought to exist in a world divorced from human activity—they are, in Holmes’s famous phrase, “a brooding omnipresence in the sky.”3 Accordingly, they are thought to vindicate the autonomy of law by resolving controversy without sensitivity to the nuances of context or recognition of the inherent indeterminacy of abstract norms.
Now it is true that the formalist account is avowedly and unabashedly conceptual. At the level of positive law, for instance, formalism focuses on the organizing concepts of coherent legal relationships. These concepts are the articulations of a single normative sequence from doing to suffering. In this way formalism funnels the particulars of the private law transaction through a set of conceptual categories.
Conceptualism also pervades the deeper recesses of formalist theory. The distinction between corrective justice and distributive justice is itself a conceptual one. The two forms of justice are the most abstract representations of different unifying structures for juridical relationships. Although manifested in circumstances that are socially and historically conditioned, the forms of justice (and the factors that differentiate them) are not themselves socially and historically conditioned. Their conceptual status guarantees for them a significance that embraces external interaction whenever and wherever it occurs and that, accordingly, transcends particular social and historical contexts. As the categorically distinct abstractions underlying particular interactions, corrective and distributive justice are stable conceptual substrata that persist through the multifarious juridical relationships that realize them. In other words, the forms of justice are universals.
Kantian right too is replete with conceptualism. The ultimate presupposition of Kantian right is that purposive activity is a causality of concepts. Indispensable to agency so understood is the will’s capacity to abstract from any particular purpose and to conform to the universality of its own inherently rational nature. From its point of unity in the abstracting will, Kantian right branches out into a set of juridical concepts. Hence the claim that law is a practical idea of reason that connects various doctrines and institutions to the abstracting free will of purposive beings.
In this chapter I contend that despite the acknowledged presence of conceptualism at every level of the formalist approach, the criticisms leveled at formalism are misguided because they fail to take seriously the immanence of corrective justice. Being immanent, corrective justice cannot be separate from the interactions it is immanent in. And the autonomy of private law consists not in the determinacy of its concepts, but in the self-regulative nature of private law’s immanent rationality. To substantiate these contentions, I first consider the meaning of autonomy and the nature of the political domain from which private law prescinds. I then consider the relationship between corrective justice and social interaction, as well as the role of the judge in elucidating the public character of private law. Finally, to repudiate the myth that the formalist’s conceptualism commits private law to a deductive moral geometry, I consider the ways in which corrective justice can be said to be both determinate and indeterminate.
8.2. The Significance of Autonomy
8.2.1. Immanence and Autonomy
As I have noted, formalism views private law as the locus of a rationality that works out, in the context of specific controversies, the normative correlativity of doing and suffering. The bipolarity of doing and suffering mirrors the relationship between the two litigants. Being correlative, doing and suffering constitute a single integrated sequence in which the justificatory considerations that bear on the doer necessarily bear on the sufferer as well. Accordingly, the rationality of private law consists in elaborating the categories expressive of corrective justice and Kantian right and in relating those categories to specific transactions.
The claim that private law is autonomous rests on the immanence of this rationality both in private law and in itself. The rationality is immanent in private law because, as a coherent justificatory phenomenon, private law presupposes both the structure of corrective justice and its grounding in Kantian right. The rationality is immanent in itself in a number of related senses. First, its moral force derives not from any ulterior good but from the inherently normative dimension of free and purposive action. Furthermore, the elaboration in private law of this inherent normativeness involves reference not to any external value but to the sheer correlativity of doing and suffering. Finally, because formalism construes the relationship as an intrinsic unity, the relationship as a whole is crucial to the intelligibility and normative significance of any of its parts.
This immanent rationality serves a regulative function for private law. Kantian right sets private law the task of governing the relationship of doer and sufferer in accordance with the principle of right. Similarly, corrective justice is the structure to which private law must conform if it is to be coherent, and it must be coherent if it is truly to be a justificatory enterprise. Thus corrective justice and Kantian right are dynamic principles that regulate the elaboration of private law from within.
The regulative function of corrective justice does not, of course, mandate the pursuit of any particular substantive end or ends. Being concerned merely with the correlativity of doing and suffering, corrective justice is indifferent to such ends. In corrective justice the doer can act for any end, so long as the action is consistent with the equality of the potential sufferer. Hence private law is a domain of prohibitions against misfeasance, rather than of positive commands promoting particular substantive ends against a background of nonfeasance.
If corrective justice does not mandate substantive ends, how is it regulative for private law? The answer is that corrective justice requires only that private law realize its own immanent rationality. Because of the correlativity of active and passive, the relationship of doer and sufferer has latent within it an inwardly articulated schema of justification whose components complement one another. In elaborating this justificatory ensemble into a legal reality, private law regulates and develops itself through the distinctive rationality that renders it the kind of normative ordering it is. For the formalist, the autonomy of private law refers to this process of self-regulation.
8.2.2. Law and Politics
Formalism postulates a morally differentiated world, marked by different kinds of justification. Aristotle’s distinction between corrective justice and distributive justice is an expression of this moral differentiation. By reducing the morality of the doer-sufferer relationship to its most abstract representation and then by contrasting the structure of this relationship with that of distributions, Aristotle demonstrated that a categorically different mode of justification applies to private law than to other external relationships. The claim that private law is autonomous merely formulates the distinctive nature of private law justification in a particularly succinct way.
Distinguishing between law and politics is another way of expressing this differentiation. The distinction affirms that considerations germane to law differ in kind from those that apply to other domains of our collective lives. In contrast, the assimilation of law to politics denies the autonomy of private law.
Among lawyers, the question of whether law is distinct from politics manifests itself as a controversy about the courts’ role in the development of legal doctrine. Adherents of the distinction see the judge as the guardian and expositor of whatever is nonpolitically legal, the nature of which emerges from a consideration of the limits appropriate to judicial, as opposed to legislative, lawmaking. Those who deny the distinction maintain that judges are policy makers serving an essentially legislative function.
Pointing to the courts’ relative lack of institutional competence and democratic accountability, proponents of a distinct judicial role have used various formulations to demarcate legitimate court activity. One formulation anchors the courts’ role in the preexisting body of rules, standards, policies, and principles from which courts move by a process of “reasoned elaboration.”4 Another requires the courts to distance themselves from the realm of “current political controversy,” so that they are restricted to the area left unclaimed by the political agenda of the day.5 While purporting to illuminate a crucial difference in principle between the juridical and the political, these formulations make this difference contingent on whatever happens to receive the attention of courts and legislatures, respectively. Whether a court can take account of a particular factor depends on whether that factor (or something from which it can be elaborated) has already ensconced itself in legal doctrine, or on whether it has, or can be expected to, become a matter of political controversy.
For the formalist these considerations are but shadows of the truth. The formalist seeks to connect this controversy about judicial role and the insight on which it is based—that “[t]o call a court ‘political’ is merely to deny it the character of a court of law”6—to the conceptual features of form that characterize and give coherence to juridical relationships. These features refer not to what may have come within the purview of judicial or legislative treatment in a given jurisdiction, but to the elements of structure that together constitute a coherent justificatory ensemble.
The formalist understanding of the juridical, as opposed to the political, centers on the immanence of form in the rationality of interaction. Corrective and distributive justice are not extrinsic impositions on private law transactions and on distributions, respectively. They are, rather, the justificatory structures that inhere in these two kinds of relationship. The forms of justice represent the modes of understanding that pertain to interaction from within; the expression of these forms in a way that remains true to their coherence and normativeness is the province of the juridical. The judge gives voice to the specifically juridical by elaborating and applying elements of positive law that express or specify aspects of these forms of justice. Thus the juridical can be defined as that which is contained within the internal rationality of interaction.
For the formalist, the political, in contrast to the juridical, refers to considerations extrinsic to juridical form. Political considerations owe their normative standing not to the coherence of the legal relationship in which they figure but to some ground outside that relationship. Whereas a juridical aspect depends on the form in which it participates, a political value purports to be independently desirable.7
8.2.3. The Nonpolitical Nature of Corrective Justice
To show the bearing on private law of so differentiating the juridical and the political, I propose to revisit Aristotle’s contrast between corrective and distributive justice.
Distributive justice is the home of the political. In distributive justice the relation between persons is mediated by the criterion that assigns things to them in accordance with a proportional equality. The whole complex of persons, things, and criterion is an expression of a particular mediating purpose that is not immediate to the relationship of person to person but is brought to bear upon them from outside.
In the case of distributions, an external orientation is both possible and required. Distributive justice, it is true, is the internal integration of persons and things according to some criterion, so that the formal adequacy of a given distribution is a matter of integrating the elements constituting distributive justice’s distinctive unity. But this internal aspect must be supplemented extrinsically. Although the elements of distributive justice are internally structured, the fixing of a particular distribution involves selection from among many possible different distributions. The juridical aspect of distributive justice goes to the inner coherence of a distribution, not to the choice of one distribution over another. The latter requires a political decision.
Assume, for instance, that one wanted to replace or supplement tort law by introducing a distributive scheme of compensation for personal injuries. A decision must be made as to the class of injuries for which compensation will be paid, the persons who will be burdened by the levies necessary to finance the scheme, the criteria by which recovery will be limited if the need for compensation exceeds the available financing, and so on.8 Whether one settles in the end on a workers’ compensation scheme, a crime-victim compensation program, an automobile insurance system, or a more general accident compensation plan, these are all different distributions, each with its own specific purpose and scope.
Because there are many possible distributions, the justification for any particular distribution is not immanent in distributive justice. For any such particular distribution one can require that its various elements fit with one another, but the notion of internal ordering is not sufficiently powerful to establish the boundaries or the criterion of the scheme. To be sure, whatever distribution is chosen must live up to the coherence of distributive justice and accordingly it has juridical aspects, expressible through norms of constitutional and administrative law, that are subject to judicial review. Distributive justice, however, understood as the coherent ordering of persons, things, and criterion, cannot single out which of the available distributions is to be preferred. The selection of a particular distribution involves a decision about the desirability of a particular collective goal. The goal is extrinsic to form—and therefore political—because its justification is independent of the requirements of coherent ordering. For distributive justice, the political choice of an extrinsic goal must supplement the immanent rationality of a coherent distributive arrangement.
A particular distribution is the product of political institutions that have the capacity and authority to evaluate the full range of possible distributions, and that are accountable for their choices from among those possibilities. Hence considerations of institutional competence and electoral responsibility figure prominently in discussions of the limits of the legal process.9 Since no particular distribution can be excluded ab initio, competence and accountability must be of a global character. The authorization of some distributions and the rejection of others involve decisions about the interests of all members of the community. Those responsible for these decisions should correspondingly be answerable to all. Judges, who have limited control over their own agendas, who see controversy through the prism of litigation about entitlements, who must funnel the effects of their judgments through litigants, and who are relatively insulated from accountability to the community, are not appropriately situated to select from among possible distributions.
The choice of distributive program is therefore political in its nature. A distribution must distribute something and it must distribute it to particular persons according to a criterion that embodies a particular purpose, to be chosen from the many available purposes. Distributive justice implies that a political authority must define and particularize the scope or criterion of any scheme of distribution. The purpose of a specific distribution is not elaborated from within distributive justice, but must be authoritatively incorporated into the schedule of collective aims. Until then, this distribution is merely one of the inventory of possible distributions.
The rationality of corrective justice is entirely immanent. Since the bilateral interaction between the parties is understood as immediate, no extrinsic purpose intrudes. Of course private law may have political consequences and may result from a political decision to establish the appropriate institutions of adjudication. However, qua