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Troubled Foundations for Private Law
Published online by Cambridge University Press: 20 July 2015
Extract
In The Foundations of Private Law James Gordley argues that the modern private law in common and civil law jurisdictions is best explained on the basis of a neo-Aristotelian theory first developed by a group of 16th century Spanish thinkers known as the ‘late scholastics’. The concepts of distributive and commutative justice that, according to Gordley, lay at core of the scholastics’ theory and that explain, respectively, modern property law and the law of obligations (contract, tort, unjust enrichment), though ignored and disparaged for much of the 19th and 20th centuries, are today familiar to most private law scholars (thanks in part to Gordley’s earlier work). Yet Gordley’s understanding of these concepts and, in particular, of their relationship both to one another and to the apex idea of ‘living a distinctively human life’ is unique, setting his account apart not just from utilitarian and other ‘modern’ accounts of private law, but also from other neo-Aristotelian theories (e.g., those of Ernest Weinrib or Jules Coleman). In Gordley’s presentation, commutative (or ‘corrective’) justice is derived from distributive justice and distributive justice is derived from the idea of the distinctively human life. Confidently traversing a wide range of historical, comparative and theoretical materials, the book’s argument is at once ambitious, learned, and elegantly presented. But as a theoretical account of the foundations of the modern private law it is unpersuasive. The book’s own account of property law suggests that in practice the idea of distributive justice does little, if any, work in explaining the rules we actually have. Nor is it clear how, if at all, distributive justice flows from the allegedly foundational idea of the ’distinctively human life’. As for commutative justice, it is not clear why, if is derived from distributive justice in the way Gordley believes, the courts should care about it. Finally, but perhaps most significantly, Gordley’s conception of commutative justice is unable to account for central features of the law of obligations.
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- Copyright © Canadian Journal of Law and Jurisprudence 2008
References
1. “Equality in Exchange” (1981) 69 Cal. L. Rev. 1587.
2. See e.g. the explanations of liability for unintended consequences (184) and strict liability (206).
3. This issue is, however, discussed at some length in The Philosophical Origins of Modern Contract Doctrine (Oxford: Oxford University Press, 1991) at 134-60.
4. Ibid.
5. Occasionally Gordley appears to suggest that it is sufficient, for his argument, that the authors he draws upon had a certain belief, whether or not that belief was consistent with their general theory or otherwise defensible. In response to Michael Trebilcock’s criticism that to invalidate contracts simply because they are not at the market price would dissuade people from searching out undervalued assets, Gordley states: ‘I can’t see why. Soto, Lessius and, for that matter, Thomas Aquinas, noted that merchants are free to buy goods where and when they can find them cheaply in hopes of a profit when they resell’ (364). Gordley may be correct that this is what Lessius and Aquinas believed, but unless I have missed something it does not address Trebilcock’s point because it does not show why such freedom is consistent with the idea of equality in exchange.
6. The best known of which is probably Weinrib, Ernest, The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995).Google Scholar
7. See also 148: ‘In the Aristotelian tradition, resources in principle belong to everyone. Ideally, distributive justice would be done by allocating them according to merit.’
8. The full explanation is as follows: ‘Aristotle and Aquinas gave three reasons why rights to private property should be instituted. Two of them have to do with incentives: if property is common, people will not be careful to preserve and manage it; moreover, people will be reluctant to work. The third reason is to prevent quarrels. If resources are allocated according to who deserves them, whatever the standard of desert may be, there will be more quarrels than if resources have clearly designated owners. A rule awarding property to the first to take possession may be a means both of providing incentives and of preventing quarrels’ (150).
9. Gordley does not explain why the trespasser, but not the adverse possessor, must pay compensation to the owner.
10. In Chapter 1, Gordley writes: ‘While it is impracticable to secure an ideally fair share for each citizen, the distribution of resources should be improved, when feasible, by social decisions’ (31), but he gives no examples here or elsewhere to suggest that the social decisions he is thinking about involve tax law.
11. The same observation can be made about the account of contract law in Foundations. Like property law, contract law allows individuals to create rights where none existed before. Thus in the same way that property rights might be explained using the idea that owning things has a special role in achieving self-fulfillment, contract rights might be explained on the basis that voluntary obligations also have a special role. Such an approach might try to show how different kinds of agreements do or do not contribute to a valuable life. Gordley says relatively little about why contract law exists and does not mention distributive justice at all in this context, but what he does say, not surprisingly, is similar to what he says about property law. After asking why promisees are entitled to performance, he says that we should look to the reasons that individuals might want to bind themselves, such as security, assurance, and planning (296). These reasons are basically the same as the reasons that economists give for having a law of contract. Gordley does devote considerable time to considering why certain agreements should not be enforced, but the main reason he gives, namely that the exchange was substantively unfair, appears to have nothing to do with a valuable life. For Gordley, substantive fairness is important entirely because of its link to maintaining distributive justice. For one attempt to tie substantive fairness to a valuable life (which I no longer defend), see Smith, : ‘In Defense of Substantive Fairness’ (1996) 112 L. Q. Rev. 139.Google Scholar
12. See, e.g., Finnis, John, Natural Law and Natural Rights (Oxford: Oxford University Press, 1980) at 161–97 Google Scholar; Weinrib, supra note 6 at 61-63; Perry, Stephen, ‘Corrective v. Distributive Justice’ in Horder, Jeremy, ed., Oxford Essays in Jurisprudence (4th Series) (Oxford: Oxford University Press, 2000).Google Scholar
13. Throughout the book Gordley introduces commutative justice by first defining distributive justice in terms of individuals obtaining a ‘fair share’ and then observing that commutative justice is concerned with ‘preserving’ each individual’s ‘share’: see e.g., 74, 99, 105, 219, 161, 352, as well as the general discussions of commutative justice at 12-13, 30, and 363. There is one exception to this pattern which I discuss infra note 17.
14. Kronman, Anthony, ‘Contract Law and Distributive Justice’ (1980) 89 Yale L. J. 472.CrossRefGoogle Scholar
15. Supra note 6 at 76-80.
16. Gordley’s reply to this objection is that: ‘while the society should try to promote and preserve a fair distribution of resources, it doesn’t follow that those whose resources are destroyed by natural
17. At one point Gordley appears to acknowledge this. In the opening chapter he describes distributive and commutative justice as follows: ‘The object of distributive justice is to ensure that each person
18. Gordley describes this explanation of nuisance as rooted in the notion of commutative justice. The link is the idea that ‘small normal interferences cancel each other out so that no one is a net gainer or loser’ (75). Only abnormal interferences, he says, disrupt the pattern. But this is simply not true. A quiet unobtrusive individual may cause no interference to others, yet still be subject to uncompensated interferences. If the point of nuisance law is to reverse gains and losses, this person should be compensated. Gordley is correct that the abnormality of the nuisance matters, but the reason it matters must lie in a distinct notion of fairness, not in the concept of commutative justice.
19. See in particular pages16-21 where utilitarian and Kantian theories are described and criticized.