Arthur Ripstein

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.

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.

My aim in this paper is to develop a new model of the obligation to do your part in contributing to the provision of what are frequently described as ‘public goods’. I will situate my account in a broadly Kantian account of the state as a public rightful condition, which enjoys powers that no private person could enjoy, in the service of its distinctively public mandate. The exercise of those powers imposes special duties on the state, which require it to provide distinctively public goods. As an artificial person, the state can only act through natural persons; doing your part enables the state to achieve its distinctively public purposes.

Ripstein's lectures, which constitute the central texts of this book, focus on the two bodies of rules governing war: the jus ad bellum, which regulates resort to armed force, and the jus in bello, which sets forth rules governing the conduct of armed force and applies equally to all parties. The lectures argue that both sets of rules constitute prohibitions rather than permissions, and that recognizing them as distinctive prohibitions can reconcile the seeming tension between them. By understanding that the central wrong of war is that war is the condition which force decides, Ripstein contends that the law and morality of war are in fact aligned; the rules governing the conduct of hostilities must apply equally to parties in the right and parties in the wrong in an armed conflict, because the prohibitions outlined in the rules governing war are prohibitions that restrain war. Ripstein's method of analysis and the substantive argument he puts forward offer an opportunity for rigorous critical engagement in subsequent essays by commentators Hathaway, Kutz, and McMahan, followed by a response from Ripstein.

"The past two decades have seen renewed scholarly and popular interest in the law and morality of war. Positions that originated in the late Middle Ages through the 17th century have received more sophisticated philosophical elaboration. Although many contemporary writers draw on ideas that figure prominently in Kant's moral philosophy, his explicit discussions of war have not been brought into their proper place within these discussions and debates. Kant argues that a special morality governs the permissible use of force because of wars distinctive immorality. He characterizes war as barbaric, because in war might makes right - which side prevails does not depend on who is in the right. The very thing that makes war wrongful also provides the appropriate standard for evaluating the conduct of war, and the only basis for law governing war"--

Kant deploys analogies from private law in describing relations between states. I explore the relation between these analogies and the broader Kantian idea of the distinctively public nature of a rightful condition, in order to explain why states, understood as public things, stand in horizontal, private legal relations without themselves being private. I use this analysis to explore the international law analogues of the three titles of private right, explaining how territory differs from property, treaty from contract and the specific form of status relations between nations. I conclude with a brief discussion of the ongoing relevance of these horizontal relations.

The thesis of The Internationalists is that the Kellogg Briand Pact of 1928 fundamentally reshaped the international legal order. By outlawing war, the Pact replaced one basic norm of international legal ordering with another. Hathaway and Shapiro present their argument in the form of a narrative, including biographical details about the central protagonists and vignettes about key meetings. They present it all with an eye not only to the importance of particular characters, but also to sheer coincidence. Underneath the sweeping historical narrative lies a serious, scholarly book with a central legal and philosophical argument. Hathaway and Shapiro use the history of international law from the seventeenth through the twentieth century to examine the nature of enforcement mechanisms, the relation between rights and remedies, issues of collective as opposed to individual responsibility, and—perhaps most strikingly—the changing status of neutrality.

Property and sovereignty are often used as models for each other. Landowners are sometimes described as sovereign, the state’s territory sometimes described as its property. Both property and sovereignty involve authority relations: both an owner and a sovereign get to tell others what to do — at least within the scope of their ownership or sovereignty. My aim in this Article is to distinguish property and sovereignty from each other by focusing on what lies within the scope of each. I argue that much confusion and more than a little mischief occurs when they are assimilated to each other. The confusion can arise in both directions, either by supposing that property is a sort of stewardship, or that sovereignty is a large-scale form of ownership. One of the great achievements of modern political thought is recognizing the difference between them.

Contemporary debates about "moral luck" were inaugurated by Thomas Nagel’s celebrated essay on the topic. Nagel notes that the puzzle about moral luck is formally parallel to the familiar epistemological problem of skepticism. In each case, the problem is generated by the apparent coherence of the thought that inner aspects of our lives are self-contained, and can be both understood and evaluated without any reference to anything external. Epistemological skepticism begins with the thought that my thoughts could be exactly as they are without any contact with the world outside, where "exactly as they are" is glossed in terms of the grounds that connect those thoughts with each other and provide the basis for our confidence in them. In the practical case, the problem of moral or legal luck arises from the thought that the only basis we have for evaluating a person’s action is his decision to perform that action. The Kantian and post-Kantian response to epistemological skepticism is not to try to defeat the skeptic on his or her own grounds, but rather to show that there is something wrong in the way the problem is set up. Our ordinary ways of thinking about ordinary things, and other persons, are only in trouble if they rest on an unwarranted inference from something that is more secure. I will engage with legal luck in a parallel way: our ordinary ways of thinking about responsibility are only in trouble if they rest on an unwarranted inference from something more secure. I argue that the concept of a completed wrong is basic to law, and that aspects of human interaction on which luck-skeptics focus — blameworthiness and harm — are derivative. I frame the issue not in terms of moral significance, but rather in terms of the authorization of the state to use force, either to order the payment of damages in tort or to imprison criminals. In the first part of the Article I consider the case of tort liability for negligence, explaining the structure of a completed wrong and the correspondingly derivative significance of carelessness as such. In the second part I turn to the issue of criminal punishment. I offer a brief explanation of the state’s authority to punish, before going on to show that the basic case that engages this authority is the completed crime. I then show why the failed attempt also attracts punishment, even though it is a derivative case.

The central claim of the dissertation is that one uses one's own personality as a model in making sense of the actions of others. Prereflective common sense endorses this view, but it has not been popular among philosophers, primarily because it is not clear how "putting yourself in someone else's shoes" can count as an explanation. ;The first part is primarily expository and destructive. I outline and criticize two versions of the widely accepted philosophical account of commonsense psychology. The first version takes it to be a collection of inductive generalizations about human behavior in typical circumstances. This view probably has few proponents, but I consider it because its limitations provide much of the motivation for the more popular alternative, according to which commonsense psychology involves a calculus of belief and desire. I describe in some detail how this more sophisticated view must work if it is to account for commonsense explanation. I then argue that it cannot work in that way, because it fails to provide a principled account of explanations of the wide variety of actions that are not directed at independently specifiable outcomes. ;My presentation of my positive view begins with a discussion of ordinary belief attributions and their role in explanation. I argue that the ability to follow another's beliefs involves nothing that is not already involved in mastery of a natural language. I then display my view of the structure of explanations of actions with an extended example of explanations of laughter. Having displayed my view, I apply it to a variety of explanations appealing to character, emotions, and changes of character. ;I then show that "putting yourself in someone else's shoes" can provide genuine explanations despite its lack of reliance on generalizations that can be made explicit. I point to legitimate explanatory uses of modeling outside of commonsense psychology and argue that using oneself as a model is equally legitimate. I also show that the explanatory usefulness of the model does not depend on incorrigibility about one's own motives. ;The dissertation closes with a discussion of the nature of mental states and self-knowledge. Although my account is individualistic in its dependence on each person's ability to use his or her personality to model others, I conclude that that ability itself depends on membership in a shared cultural and linguistic community