Reciprocal Freedom: Private Law and Public Right. (Canada)

• Date: 22 March 2024
• Author: Weinrib, Ernest J.
• Published date: 22 March 2024

Oxford: Oxford University Press, 2022

Reviewed by Stephane Serafin (*)

Ernest Weinrib is best known for his view that "the purpose of private law is to be private law", (1) and his concomitant rejection of the suggestion, most closely associated with the legal realist movement, that private law is really "public law in disguise". (2) This account of private law, however, supposes a complimentary account of public law, which some of Weinrib's more recent scholarly output seeks to supply. (3) His latest book, Reciprocal Freedom: Private Law and Public Right, revisits and considerably deepens many of these same themes. (4) It is an ambitious volume that begins with an account of corrective justice as the organizing idea of private law (Chapter 1), before moving to an account of rights writ large (Chapter 2), a discussion of the right of ownership (Chapter 3) and onward, past the role of state institutions relative to private law (Chapter 4), to the relationship between corrective and distributive justice (Chapter 5), to the effects of constitutional norms on the development of private law (Chapters 6 and 7), and culminating in an account of the relationship between private law and the rule of law (Chapter 8).

There is much in Reciprocal Freedom that will be familiar to readers of Weinrib's first book, the Idea of Private Law, and of his second book, Corrective Justice? In particular, Chapter 1 offers a fairly orthodox restatement of Weinrib's central ideas about the nature of corrective justice as the distinct organizing idea that both undergirds and defines private law as a distinct subject of study. (6) As Weinrib explained in The Idea of Private Law, corrective justice is a "form" that mandates a correlative structure of justification in which the same reasons ground both the plaintiffs right and the defendant's duty. (7) It followed in his estimation that a proper account of tort law could not be grounded on the punishment of the defendant or the desire to provide compensation to the plaintiff, taken in isolation from each other. (8) What was required was an account of why this defendant is liable to this plaintiff. (9) As he now puts the same point in Reciprocal Freedom, "[b]ecause of its focus on correlativity, corrective justice treats the relationship as a unity in which each party's normative position is reciprocally intertwined with the other's", while "the reasoning that supports liability should have a justificatory force that occupies and is coterminous with the entirety of the relationship's normative space". (10)

That said, there is also much in Reciprocal Freedom that is new, and which even presents a potential departure from Weinrib's earlier arguments. His shift in focus towards what he takes to be a Kantian idea, the notion of "reciprocal freedom", is only the first of many clues as to this potentially novel direction. As he reaffirms in the first chapter of Reciprocal Freedom, correlativity is what is distinctive of private law, abstracted from the various rules and doctrines that are recognized by various positive legal systems. (11) But that is not the end of the matter. As Weinrib then goes on to suggest, the idea of reciprocal freedom requires further abstraction, that is, a move past corrective justice in order to fit the two forms of justice he recognizes--corrective and distributive--into a single juridical unity embodied in a system of rights. (12) Thus, the image suggested by the book's cover, of a "juridical version of Jacobs ladder... Each rung of this ladder both abstracts from the determinations below it and provides the determination for the rung above it". (13)

In particular, although Weinrib continues to resist the subordination of corrective to distributive justice, and by extension of private law to public law, many of his arguments in Reciprocal Freedom cast serious doubts on the tenability of this position. (14) Difficulties emerge fully beginning in Chapter 4, in Weinrib s treatment of two discrete areas of private law doctrine--namely, nuisance and the privilege of necessity. (15) In Chapter 3, he had accepted the Blackstonian definition of ownership as a "sole despotic dominion" enjoyed by an owner over a thing. (16) In Chapter 4, he is then compelled to account for limits on this right by introducing a distinction between the "internal logic" of private law rights and the "operation" conferred upon them by courts acting within the civil condition. (17)

In Weinrib's estimation, both the tort of nuisance and the privilege of necessity are grounded in this distinction between the "internal logic" of private law rights--specifically, of the right of ownership--and the "operation" conferred upon those rights by courts acting within the civil condition. These courts, it is claimed, are required to "reconcile" the competing uses of various owners--that is, their respective, free-standing rights of ownership--against one another. Public right is what serves to determine the "operation" of ownership notwithstanding its theoretically absolute "scope", and thus serves to ground both doctrines. (18) Accordingly, the owner of a thing can be liable in nuisance where that owner's use adversely affects the use of another's property, notwithstanding the owner's "sole despotic dominion" over the thing or things being used. (19) Similarly, the privilege of necessity arises from the justifiable limitations which public courts of justice must impose on private law rights, such as ownership, in the name of reciprocal freedom, notwithstanding that the conduct protected by the privilege remains an infringement of the rights in question. (20)

It is unclear why Weinrib feels compelled to ground nuisance and necessity in the role of courts under public right rather than directly in corrective justice, and, thus, in private law principles as he has defined them. In The Idea of Private Law, his objective had been to show precisely how nuisance and necessity were compatible with the correlative structure mandated by corrective justice, in which the reasons for the imposition of liability on the defendant directly mirror the reasons for the plaintiffs recovery. (21) In the case of nuisance he argued, for instance, that, "were the law to legitimize the defendant's incompatible use, it would preclude the plaintiff from making use of his or her property, and would thereby negate the plaintiffs status as owner". (22) And, he added, "[p]arties whose uses conform to what is ordinary treat each other equally as owners, because each use allows the other what it takes for itself". (23) Contra the Ernest Weinrib of Reciprocal Freedom, the Ernest Weinrib of The Idea of Private Law thus appears to have understood the tort to reflect the scope of the right of ownership, understood through the framework of corrective justice, rather than a qualification imposed upon its operation by courts acting under public right. He appears to have understood it as a function of correlativity, of the bilateral private law relation between the parties, rather than of an external...