Arthur Ripstein

This review essay examines Benbaji and Statman's _War by Agreemen__t_. It raises two challenges to their contractarian account of war, which seeks to show that considerations of mutual advantage can generate novel permissions. First, if such a robust justification for participation in unjust wars is available, it is not clear that any kind of agreement between states is even required; if a state can make otherwise unjustified killings permissible, it would seem to be able to do so without the participation of other states. Second, more generally, I doubt that any such agreement could make otherwise unjustified killings permissible.

A waiter spills hot coffee on a customer. A person walks on another person’s land. A moored boat damages a dock during a storm. A frustrated neighbor bangs on the wall. A reputation is ruined by a mistaken news report. Although the details vary, the law recognizes all of these as torts, different ways in which one person wrongs another. Tort law can seem puzzling: sometimes people are made to pay damages when they are barely or not at fault, while at other times serious losses go uncompensated. In this pioneering book, Arthur Ripstein brings coherence and unity to the baffling diversity of tort law in an original theory that is philosophically grounded and analytically powerful. Ripstein shows that all torts violate the basic moral idea that each individual is in charge of his or her own person and property, and never in charge of another individual’s person or property. Battery and trespass involve one person wrongly using another’s body or things, while negligence injures others by imposing risks to them in ways that are inconsistent with their independence. Tort remedies aim to provide a substitute for the right that was violated. As Private Wrongs makes clear, tort law not only protects our bodies and property but constitutes our entitlement to use them as we see fit, consistent with the entitlement of others to do the same.

El presente artículo se ubica en la intersección de dos proyectos más amplios, uno sobre la filosofía política de Kant y otro sobre la relación entre el derecho privado y la justicia distributiva. Utiliza la idea del orden privado de Kant para explicar el lugar del derecho privado en lo que Rawls describe como la “división de la responsabilidad” entre la sociedad y el individuo. Explico por qué el derecho privado es una parte esencial de lo que, para Rawls, es el tema fundamental de la justicia: la estructura coercitiva de la sociedad. Sostengo que el derecho privado no es más que un sistema de límites recíprocos a la libertad, siempre que esos límites sean generales en el sentido correcto. Además, sostengo que la mejor manera de pensar el énfasis de Rawls en la provisión pública de derechos y oportunidades adecuados es en términos paralelos: son condiciones esenciales para la posibilidad misma del cumplimiento de los derechos, porque son los prerrequisitos morales para una esfera pública compartida.

Legal doctrine often focuses on means rather than ends. In an action for breach of contract, the court asks only whether promisor performed as promised, and takes no account of what either promisor or promisee expected to gain by the transaction. The criminal law inquires into how the criminal was trying to accomplish some purpose, not what the purpose was. Most crimes are committed to get money, a purpose of which the law otherwise approves. This focus on means is often said to be superficial, and to be the manifestation of an underlying concern either with the ends sought by a person or the ends that are served by placing legal restrictions on which means a person may use, or the manner in which they may be used. In this paper Professor Ripstein takes up Kant's suggestion that 'right abstracts from all ends' to explain the law's focus on means rather than ends, exploring its application to both public and private law

The economic analysis of law has gone through a remarkable change in the past decade and a half. The founding articles of the discipline – such classic pieces as Ronald Coase's “The problem of social cost”, Richard Posner's “A theory of negligence” and Guido Calabresi and Douglas Malamed's “Property rules, liability rules, and inalienability: One view of the cathedral” – offered economic analyses of familiar aspects of the common law, seeking to explain, in particular, fundamental features of the law of tort in terms of such economic ideas as transaction costs, Kaldor-Hicks efficiency, or minimizing the sum of the accident costs and avoidance costs. In each case, they argued that the law of torts should be understood as a set of liability rules selected for their incentive effects, rather than as a set of substantive rights and remedies for their violation. These authors claimed to be able to explain most of the features of tort law and, where features were found that did not fit with their preferred explanations, recommended modification. Although they disagreed on important questions, each of the pieces seems to work a manageable structure into what strikes first-year law students as an otherwise random morass of common-law judgments. Generations of legal academics were introduced to these works, and drawn into their way of looking at things. As a student studying first-year torts with Calabresi at Yale, I had the sense that I was in the presence of greatness.

This book is a revised and expanded version of a special issue of the Boston Review that appeared in 1994. Since Joshua Cohen took over as editor of the Review a few years ago, it has published symposia with a lead piece and replies. Like the others in the series, this collection brings together prominent thinkers from a variety of perspectives, all of whom present their views in clear and accessible prose. It contains an essay by Martha Nussbaum, responses by fifteen Americans and one Canadian, and Nussbaum’s reply to her critics.

This book examines responsibility and luck as these issues arise in tort law, criminal law, and distributive justice. The central question is: whose bad luck is a particular piece of misfortune? Arthur Ripstein argues that there is a general set of principles to be found that clarifies responsibility in those cases where luck is most obviously an issue: accidents, mistakes, emergencies, and failed attempts at crime. In revealing how the problems that arise in tort and criminal law as well as distributive justice invite structurally parallel solutions, the author also shows the deep connection between individual responsibility and social equality. This is a challenging and provocative book that will be of special interest to moral and political philosophers, legal theorists, and political scientists.