Welfare and Freedom: Towards a Semi-Kantian Theory of Private Law
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Springer Nature B.V. 2020
YITZHAK BENBAJI*
WELFARE AND FREEDOM: TOWARDS A SEMI-KANTIAN THEORY OF PRIVATE LAW
(Accepted 14 January 2020) ABSTRACT. The Kantian theory of private law, as Ernest Weinrib and Arthur Ripstein have developed it over the last two decades, is based on a fundamental normative truth, viz., no person is subordinate or superior to another person. Kantians construe any attempt to understand and justify the distribution of the rights-claims and rights-liberties that constitute private law in terms of aggregate welfare and/or distributive justice, as a deep category mistake. This essay outlines a ‘semi-Kantian’ theory of private law, which is like Kant’s in that it understands private law as a means of instituting and protecting private freedom. Yet, semiKantians insist that the choice between different private law programs, which respect private freedom equally well, can at times be justified by considerations of aggregate welfare and distributive justice, as well as other considerations that concern the impact on society as a whole.
The Kantian theory of private law, as Ernest Weinrib and Arthur Ripstein have developed it over the last two decades, is based on a fundamental normative truth, viz., no person is subordinate or superior to another person.1 Put positively, individuals are free in being independent of each other: over himself, his body, mind, and property, the individual is sovereign. Two of the constitutive roles of private law follow from this idea. First, private law should permit each person to pursue the ends that she sets for herself by using the means that she already has, whether or not doing so conflicts with the plans of others. Second, private law should preclude one person from using the means that belong to another, as well as restrict the 1 All of my claims about Kantian philosophy of private law are drawn from Ernest Weinrib, The Idea of Private Law (Cambridge, Mass: Harvard University Press, 1995), Arthur Ripstein, Force and Freedom (Cambridge, Mass: Harvard University Press, 2009) and Arthur Ripstein, Private Wrongs (Cambridge, Mass: Harvard Univerity Press, 2016). I make no independent argument about Kant’s philosophy of law.
BENBAJI
ways in which each person uses her own means to ways that are compatible with the freedom of others. In fulfilling these roles, private law organizes itself around the misfeasance/nonfeasance distinction. Misfeasance – viz., a wrong that private law should prohibit and sanction – consists in using another person’s means without her authorization (use-based wrongs), or using one’s own means in a way that compromises the private freedom of one’s ‘neighbor’ (damage-based wrongs). In contrast, nonfeasance consists in a failure to use one’s means in a way that suits the ends of one’s neighbor. From the legal perspective, the misfeasor does something to his neighbor while the nonfeasor fails to do something for her. As a system that protects private freedom, private law ought to permit all instances of nonfeasance and to sanction all i
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