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The chapter investigates the significance of the rule of law for private law, first presenting a general account of the rule of law and then turning specifically to private law. The rule of law has the double function of ensuring that the exercise of state power is through law and in accordance with law. The first of these is the aim of Lon Fuller’s desiderata for governing human conduct through legal rules; the second is the concomitant of the separation of legislative, executive, and adjudicative powers in the form of government that Kant termed a ‘republic.’ The rule of law takes as its subject matter the constitutive (and not the regulative) aspects of a republican polity. The rule of law, therefore, differs from the Rechtsstaat, which in its contemporary version incorporates regulative notions of justice. However, taking over the argument of Julius Ebbinghaus, the chapter contends that injustice is to be distinguished from inhumanity (exemplified by Nazism and apartheid), which is never within the competence of legal authority. Turning to private law adjudication, the chapter argues that the retroactivity of adjudicated norms does not violate the rule of law. The separation of powers makes it implausible to assume that Fuller’s desiderata apply to adjudication in the same way that they apply to legislation. The rule of law is satisfied by the antecedent public availability of the legal materials out of which a new adjudicative norm is shaped. Prospective overruling is, accordingly, the solution to a non-existent problem.

This chapter sets out the nexus between the structure of the private law relationship and reasoning that is appropriate to determinations of liability. It draws out the implications of corrective justice as a structural idea that highlights the correlative normative positions of the plaintiff and defendant as the doer and the sufferer of the same injustice. This structural idea is inconsistent both with the pluralism and with the instrumentalism that have formed the prevailing orthodoxy of private law scholarship in the common law world over the last century or so. Structure signifies the most abstract representation of the parties’ situations relative to each other; the various doctrinal and institutional features of private law are the specific determinations of this abstract structure. When seen as a structural idea, corrective justice has its distinctive and interrelated conceptions of fairness and coherence that emerge out of the correlativity of the parties’ relationship. The character of these conceptions as internal to the parties’ relationship, in turn, leads to a stark contrast with instrumental approaches concerning the treatment of legal concepts, the function of legal norms, the role of law and the source of indeterminacy. The internal understanding offered by corrective justice exhibits intertwined interpretive and normative dimensions.

This chapter examines the presuppositions and functions of the horizontal application of constitutional rights to private law. Inaugurated in Germany in the famous Lüth case and subsequently elaborated in the constitutional jurisprudence of Germany and other jurisdictions, horizontality (Drittwirkung) is the most far-reaching international development in private law since the end of the Second World War. The chapter avoids the standard taxonomy of the direct and indirect application of constitutional rights, focusing instead on what horizontality presupposes and on the different functions that horizontality might serve. Drawing on Hans Carl Nipperdey’s path-breaking exposition, the chapter notes that horizontality presupposes the commonality of rights, and the juridical unity of the entire legal order. The chapter then elaborates, in order of their increasing robustness, the three different functions that might be ascribed to horizontality: to render legal norms more determinate, to shape the incremental development of private law, and to give expression within private law to the equal human dignity of the interacting parties. Throughout the chapter the most salient illustrations are cases on privacy from Canada, the United Kingdom, and Germany.

This chapter examines the connection between corrective justice and distributive justice. These are categorically different structural ideas that cannot directly be integrated into a single overarching structure. Nonetheless, they participate in a distinctive kind of unity that consists in a conceptual sequence in which each stage presupposes and complements the preceding one. Thematic is the reciprocal independence of all persons, which is grounded in Kant’s notion of innate right. Innate right persists throughout the sequence, underlying the relationships of both private law and public law, and surfacing in contemporary jurisprudence as human dignity. By making the exclusivity of ownership legally effective, the state creates the possibility of threats to the independence of those whose action is confined to what is unowned by others. Subjection to another’s will is then not identical with injustice under corrective justice, and being able to make one’s way as an independent person cannot be assured by private law alone. Through arrangements of distributive justice (such as workers’ compensation, social insurance, provision of a social minimum, and automobile compensation systems), the state legislates to address this state-created consequence of the system of rights.

Corrective justice requires a content that matches its correlative structure; this content is found in the Kantian conception of rights. Such rights serve as the juridical conduits through which persons interact on terms of their equal reciprocal freedom. The point of a system of such rights is not to promote particular ends that favour one or the other of the parties to a private law relationship, but to provide the conditions for the rightful interplay of whatever ends a person might choose to have. The Kantian system of rights operates at three levels of specificity: most generally as a totality of conditions of equal reciprocal freedom, more specifically, as a set of subjective rights of particular persons, and yet more specifically as entitlements that specify what it means to enjoy the right and what the right-holder can do by virtue of having the right. After setting out these three levels, this chapter considers the relationship between the Kantian conception of rights and the two dominant issues of rights theory in contemporary scholarship: the significance of Hohfeld’s typology of rights, and the controversy between the interest theory of rights and the will theory of rights. On the former issue, Kant provides for the normative unity of the various Hohfeldian categories within a single relationship. On the latter issue, Kant is neither an interest theorist nor a will theorist; rather, his concern is with the moral power presupposed in the idea of reciprocal freedom.

This book continues a decades-long exploration of the theory of private law. Two previous books, The Idea of Private Law and Corrective Justice had presented, respectively, the theory of corrective justice and the analysis of a wide range of specific issues in private law. The present book starts with corrective justice as the structure of the private law relationship and gradually moves outward to situate private law within the wider world of law, dealing with the state’s role in forwarding distributive justice, the horizontal application of constitutional rights to private law, and the rule of law. The book draws on Kant’s legal philosophy to exhibit law, both private and public, as the necessary medium for the reciprocal freedom of all. Central to this enterprise is what Kant called ‘public right’, with its system of public institutions. Throughout these books, four ideas about private law have consistently been in play: (1) fair and coherent reasons for liability are correlative in structure; (2) rights and their correlative obligations provide the content for this structure; (3) the activity of theorizing about private law involves not the construction of a utopia but the understanding of an ongoing normative practice; and (4) a theory of private law is concerned not with producing a determinate code of law, but with explicating the conceptual structure and normative presuppositions of the phenomenon of liability.

Continuing with the treatment of horizontality from the previous chapter, this chapter discusses two issues regarding the workings of horizontality in its most robust version. The first issue is that of scope, that is, the conceptual boundaries beyond which constitutional rights cannot be applicable to private law. The second issue is that of operation, that is, the process of balancing the rights invoked by the two parties. Because horizontality combines private law and constitutional law, the scope of horizontality becomes visible at the seam between these two varieties of legal ordering. One such circumstance is when the constitutional right is incompatible with the structure of the private law relationship, as when the constitution specifies socio-economic rights that are distributive in nature. The chapter discusses this possibility in the context of the South African case on the right to a primary education, Juma Masjid. A second such circumstance is when the supposed exercise of the constitutional right does not fulfill its constitutional purpose or negates the rights of others. Examples are the German cases of Blankfüer and the Sprayer of Zurich, as well as the facts of the US case of Snyder v Phelps. The balancing that characterizes horizontality’s operation is best understood as a form of proportionality that aims at a practical concordance, in which the operation of each contending right is adjusted because of the presence of the other. In this context, balancing so understood differs from public law’s use of proportionality to justify the infringement of constitutional rights.

This chapter elucidates the unifying function of a Kantian right with respect to the principal Hohfeldian categories present in the idea of ownership. In Hohfeldian terms, ownership combines the owner’s claim-right to exclude others from the owned object and the owner’s liberty to use that object. This chapter addresses the relationship between using and excluding, by presenting Grotius’ and Kant’s classic accounts of ownership. Grotius’ approach treats use and exclusivity as separate notions, with the latter evolving out of the former. For Kant, in contrast, use and exclusivity are integrated aspects of ownership as a right within a regime of reciprocal freedom. This chapter offers a Kantian critique of Grotius’ account of the original right to use. It then presents Kant’s notion of usability as the basis for his integration of use and exclusivity. Next, the chapter deals with the special problem for reciprocal freedom that is posed by acquisition, and with the role of a system of acquisition within a regime of public institutions in providing the solution to that problem. Finally, the chapter concludes with reflections on the conceptual place of ownership within a system of property.

This chapter deals with the relationship between the rights of private law and what Kant calls ‘public right’, that is, the condition in which public institutions guarantee rights. The rights of private law cannot be enjoyed without their being authoritatively determined and enforced by public institutions. Whereas corrective justice links the parties to a transaction bilaterally through its correlative structure, public right is omnilateral, linking everyone to everyone else. Two normative ideas inform public right: publicness (that public institutions secure everyone’s rights on the basis of reasons that can be known and acknowledged by all) and systematicity (that legal norms and institutions form a systematic whole). The distinctive normative commitments of public right may modify the principle of a court’s decision without, however, changing the structure and content of the private law right itself. Publicness can have this effect, as Kant illustrated in his discussion of market overt. Systematicity operates similarly, sometimes extending and sometimes modulating the effect of the plaintiff’s right. To illustrate this, the chapter presents two doctrines (inducing breach of contract and assignment) that extend the effects of contract from the contracting parties to third parties, and two doctrines (the privilege to preserve property in Vincent v Lake Erie, and liability for private nuisance) that modulate the entitlements to exclude and to use that are indigenous to ownership. Public right thus makes make right-holders reciprocally determining participants in the legal system, thereby transforming private law into a community of rights.

Ownership combines the owner's right to exclude others from the owned object and the owner's liberty to use that object. This article addresses the relationship between using and excluding, by presenting Grotius's and Kant's classic accounts of ownership. Grotius's approach treats use and exclusivity as separate notions, with the latter evolving out of the former. For Kant, in contrast, use and exclusivity are integrated aspects of ownership as a right within a regime of equal reciprocal freedom. This article offers a Kantian critique of Grotius's account of the original right to use, and then presents Kant's notion of usability as the basis for his integration of use and exclusivity.

In his treatment of justice Aristotle articulated a contrast between two forms of justice, corrective and distributive. The former deals with the rectification of an injustice inflicted by one person on another, the latter with the distribution of benefits or burdens. These forms of justice have differing structures. What informs distributive justice is the notion of comparison: a greater share goes to the more meritorious under the distributive criterion. What informs corrective justice is the notion of correlativity or mutuality: an injurer has inflicted wrongful harm on a victim if and only if the victim has suffered wrongful harm through the injurer’s conduct. The parties, as doer and sufferer of the same injustice, are the active and passive poles of a single wrong, which the law rectifies by holding the perpetrator liable to the victim. In recent decades corrective justice (along with its differentiation from distributive justice) has attracted the attention of legal theorists interested in tort law as a repository of normative judgements and insights about wrongful injuries. These theorists view the notion of correlativity as crucial for understanding the relationship between the plaintiff and the defendant. An emphasis on correlativity illuminates both the arguments that properly belong within a system of liability and the connection between corrective justice as a theoretical idea and legal liability as a familiar institutional practice. This entry outlines the role of corrective justice in contemporary tort theory.

The civil union marks the transition to public right from the property regime of the state of nature. Immanuel Kant’s theory of property rights necessitates not only this transition but also — as part of it — the people’s duty to the poor. Although Kant’s notion of property completely conforms to corrective justice, it generates the distributive justice that consists in the alleviation of poverty through taxation. Kant’s inclusion of the public duty to support the poor among the effects of the civil condition suggests that the agreement of all would be impossible unless the state assumed this duty. This chapter views that the relief of poverty is not as something from which the state might contingendy benefit, but as a duty of the people that the state assumes, like all duties Kant describes, this duty presumably reflects a normative necessity rather than a prudential option.

In Kant's philosophy of law “public right” refers to the condition in which public institutions guarantee rights. This lecture deals with the relationship between public right and the rights of private law. In accordance with corrective justice, private law links the parties to a transaction bilaterally, so that they are subject to correlatively structured bases of liability. In contrast, public right is omnilateral, linking everyone to everyone else. Two normative ideas inform public right: publicness (that public institutions secure everyone's rights on the basis of reasons that can be known and acknowledged by all) and systematicity (that the norms and institutions of law form a systematic whole). In standard cases public right makes no difference to a private law controversy except to add the dimensions of publicness and systematicity. In some circumstances, however, public right alters the principle on which a court resolves a controversy, without, however, changing the structure and content of the private-law right itself. Kant himself pointed out that publicness can have this effect, as he illustrated in his discussion of market overt. Systematicity operates similarly, sometimes extending and sometimes narrowing the effect of the plaintiff's right. For instance, the tort of inducing breach of contract expands the effect of the promisee's right by securing it against everyone. On the other hand, the privilege to preserve property, exemplified in the controversial case of Vincent v Lake Erie, narrows the effect of the plaintiff's right by subjecting it to conditions that justify its infringement. The effect of public right is to make right holders reciprocally determining participants in the legal system, thereby transforming private law into a community of rights.

In law, as in literature, texts allude to other texts. And as in literature, the process is perplexing. Why is allusion necessary, and how is it possible? Why not simply settle each issue as it arises on its own merits without reference to a pre-existing formula? And how do words produced at one point in time assume subsequent relevance? What different forms does such relevance take? What room does the original text leave for legal creativity? What distinguishes legitimate from abusive allusion? How do the alluding jurists understand their own activity?

Throughout the common-law world, there is no liability for negligence unless the defendant breached a duty of care owed to the plaintiff. But when is such a duty owed? In the foundational judgment of English negligence law in 1932, Donoghue v. Stevenson , Lord Atkin asserted that “there must be, and is, a general conception of relations giving rise to a duty of care.” Lord Atkin thereby gave expression to the view that the law cannot treat the collection of duties as a chaotic miscellany of disparate norms. Rather, the systematic nature of legal norms requires both that all duties of care be thematically unified through the same underlying principle and that each particular duty be internally coherent. More recently, however, courts seem to have given up on the attempt to formulate or appeal to a general conception of duty and have returned to the multiplicity of particular duties that Lord Atkin deplored. This has caused a “disintegration of duty.” The general conception of the duty of care – its theoretical basis, its structural constituents, its more recent disintegration back into particular duties, and the need to recapture what a general conception of duty implies – is the subject of the present chapter. It first shows through an analysis of the landmark cases of the Twentieth Century how duty fits with other negligence concepts (failure to exercise reasonable care, factual causation, and proximate cause) to connect the defendant's act to the plaintiff's injury in a normatively coherent way. It then sets out the internal structure of the duty of care, that is, what its constituents must be if it is to reflect a coherent conception of wrongdoing.