WHAT CAN KANT TEACH US ABOUT LEGAL CLASSIFICATION?
Jacob Weinrib*
To the young mind, every thing is individual, stands by itself. By and by, it finds how to
join two things, and see in them one nature; then three, then three thousand; and so,
tyrannized over by its own unifying instinct, it goes on tying things together, diminishing
anomalies, discovering roots running under ground, whereby contrary and remote things
cohere, and flower out from one stem. It presently learns, that, since the dawn of history,
there has been a constant accumulation and classifying of facts. But what is classification
but the perceiving that these objects are not chaotic, and are not foreign, but have a law
which is also a law of the human mind?1
Introduction
The understanding of law is a classificatory act. One cannot claim to understand law if
one cannot differentiate legal instances, that is, those events or conditions2 to which the law
assigns legal consequences, from all others events or conditions. Nor can one claim to
understand law if one is ignorant of the distinctions that obtain among legal instances. A legal
classification addresses three fundamental questions. First, what is the unity that underlies the
seemingly chaotic array of legal instances? Second, what is the principle of differentiation that
applies to this unity? Third, how are legal instances subsumed under this differentiated unity? If
the task of the legal academic is to understand law, then classification performs the essential
function of making law knowable.3
In his influential work, Dimensions of Private Law: Categories and Concepts in AngloAmerican Legal Reasoning,4 Professor Stephen Waddams argues that the complexity of the law
exceeds the explanatory power of any classificatory theory so far devised:
* The author thanks Peter Benson, Mayo Moran, Arthur Ripstein, Ernest J. Weinrib, and the editors of the Canadian
Journal of Law and Jurisprudence for helpful comments on prior drafts.
1
Ralph Waldo Emerson, ―The American Scholar‖ in Emerson: Essay and Lectures (New York: Library of America,
1983) 51 at 55.
2
By event I mean such acts as a commission of a tort or a breach of a contract. By condition I mean having
something that is rightfully another‘s.
3
Peter Birks, ―Equity in the Modern World: An Exercise in Taxonomy‖ (1996) 26 U.W.A. L. Rev. 1 at 4: ―A sound
taxonomy, together with a keen sense of its importance, constant suspicion of its possible inaccuracy and vigorous
debate on its improvement, is an essential precondition of rationality.‖ See also Stephen A. Smith, ―A Map of the
Common Law?‖ (2004) 40 Can. Bus. L.J. 364 at 365-6: ―The academic‘s basic goal of understanding the law – or
anything else for that matter – is closely linked to the process of mapping. A good map explains what is significant
about the data being classified…[T]he process of mapping, of classification, is inseparable from the process of
attaining knowledge.‖ For a general discussion of the benefits of developing a taxonomy, see Ewan McKendrick,
―Taxonomy: Does it Matter?‖ in David Johnston & Reinhard Zimmerman, eds., Unjustified Enrichment
(Cambridge: Cambridge University Press, 2002) 627 at 638 ff.
4
Stephen Waddams, Dimensions of Private Law: Categories and Concepts in Anglo-American Legal Reasoning
(Cambridge: Cambridge University Press, 2003). For favorable reviews of Waddams‘ work, see Geoffrey Samuel,
―Can the Common Law be Mapped‖ (2005) 55 University of Toronto Law Journal 271 at 292: ―this monograph will
undoubtedly become a, perhaps the, major work on common law reasoning.‖ See also Robert A. Hillman, ―The
Many Dimensions of Private Law‖ (2004) 40 Can. Bus. L.J. 384 at 395: ―Dimensions of Private Law is an excellent
book. Rich with examples and insights, readers will gain a firmer understanding of the nature of private law and a
greater appreciation of its complexity.‖ For critical reviews, see Stephen A. Smith, ―A Map of the Common Law?‖
(2004) 40 Can. Bus. L.J. 364 at 366 ff. and especially Allan Beever and Charles Rickett, ―Interpretive Legal Theory
and the Academic Lawyer‖ (2005) 68 Mod. L. Rev. 320. Steve Hedley responds to Smith, Beever, and Rickett in
1
Electronic copy available at: http://ssrn.com/abstract=1584344
This study, though not a history of private law (by period or by topic), is
historical in perspective: attention is directed to the past (from the eighteenth
century to the recent past), and to the failure of any organizational scheme or of
any single or simple explanation either to describe the law that preceded it, or to
supply a workable guide for decisions thereafter. The failure suggests that the
interrelation of legal concepts has involved a greater complexity than can be
captured by organizational schemes, maps, or diagrams, or by any single
explanatory principle.5
Waddams, however, does not assume the stance of Plato‘s sophist, who claims to be wise while
denying the possibility of knowledge. Since Waddams‘ argument is historical in methodology, it
―cannot exclude the possibility of future attainment of greater order and precision‖, although it
may cast doubt on the likelihood of such an achievement.6 Thus, Waddams‘ purpose is not to
demonstrate the impossibility of creating a successful classificatory scheme. Nor is his purpose
to deny the conceptual order that such a scheme might produce. Rather, Waddams wishes to
―contribute to the search for good intellectual order in law‖ by drawing attention to the obstacles
that an adequate classificatory scheme must overcome.7
The purpose of this essay is not to refute Waddams‘ historical claim that the
classification of the common law has hitherto been unsuccessful by demonstrating that an
existing system of classification fully embodies the present character of the common law.
Rather, the purpose of this essay is to offer a theoretical account of legal classification. From a
theoretical perspective, how might the general obstacles that Waddams mentions be overcome
and what would the resulting classification of private law look like? I begin with the catalogue
of obstacles to legal classification that Waddams presents and argue that, because they are rooted
in misconceptions about the classificatory project, they pose no threat to an adequate conception
of legal classification. In search of such a conception, I then consider how three great legal
theorists – Aristotle, Kant, and Hegel – answer fundamental classificatory questions about unity,
differentiation and instantiation in private law. The focus of this essay is the enduring
significance of Kant‘s conception of legal classification, which provides an alternative to
Waddams‘ conception of classification and offers a set of coherent answers to the fundamental
classificatory questions. In contrast, both Aristotle and Hegel respond to the fundamental
classificatory questions by providing a conception of the unity of private law that fails to cohere
with their ensuing accounts of its differentiation.
A full response to Waddams would demonstrate that the present system of private law is
expressive of an adequate classificatory framework. Such a demonstration belongs to a more
expansive and ambitious project than the present essay. While the classification that I elaborate
does provide the private law categories familiar to Western legal systems, the extent to which the
actual law is informed by Kant‘s categories remains a question for further study.
―The Shock of the Old: Interpretivism in Obligations‖ in Charles Rickett & Ross Grantham, eds., Structure and
Justification in Private Law (Portland: Hart Publishing, 2008) 205.
5
Waddams, supra note 4 at vi and 226.
6
Ibid. at 3. See also Smith, supra note 4 at 367: ―Dimensions is unique in this regard: it is the first book-length,
inductive critique of mapping.‖
7
Waddams, ―Response‖ (2004) 40 Can. Bus. L.J. 396 at 398.
2
Electronic copy available at: http://ssrn.com/abstract=1584344
I. Waddams’ Obstacles to Classification
Although particular classifications may be complex, the basic structure of any
classification is simple. At the highest level of abstraction, classification has three interrelated
elements: a unifying basis, a principle of division, and the instances that are subsumed by the
unified classificatory scheme.
First, a classification posits a unifying basis that differentiates the instances to be
classified from all other instances in the world. A classification of private law must articulate the
unity common to all instances of private law, which includes torts, contracts, fiduciary
obligations, and unjust enrichment. Thus, the classifier must posit some general conception of
private law that is broad enough to include the relevant instances and narrow enough to exclude
those instances that fall beyond its domain. In the absence of such a general conception,
classification lacks a subject.
Second, classification draws out the divisions implicit in the unifying basis of its subject.
In Hegel‘s striking formulation, ―A philosophical division is…the immanent self-differentiation
of the concept.‖8 Having posited a unifying basis that subsumes all its instances and excludes
all others, a classification must relate its instances to its unifying basis. This relation is achieved
by positing a principle of division, which distinguishes between the different varieties of
instances to which the unity gives rise. This self-differentiation of the unifying basis culminates
in the discrete branches of a common classificatory scheme.
Third, instances of the unifying basis are ordered within the appropriate branch of the
division. Thus, a classification conceives of its instances not as a chaotic aggregate but as
particulars that draw out the distinct aspects of a unified whole. As Oakeshott puts it,
classification ―transforms the chaos of jurisprudence into a world‖9 by illuminating the unity that
underlies a seeming miscellany of legal instances.
In Dimensions of Private Law, Professor Waddams offers a historical argument for his
claim that the complexity of private law has defied classification.10 His argument begins by
exhibiting the failings of past attempts at classification, including those undertaken by
Blackstone, Pothier, Addison, Anson, Halsbury, Haldane and Birks.11 Waddams then proceeds
from history to theory by generalizing on these failings. In doing so, Waddams formulates a
useful catalogue of the obstacles that any adequate conception of legal classification must
overcome.
The kinds of criticism that classifications encounter, including those offered by
Waddams, reflect the structure of the project of classification. Since classification consists in
8
G.W.F. Hegel, Philosophy of Right, trans. by T.M. Knox (London: Oxford University Press) at § 33. For an
interesting account of Hegel‘s conception of classification, see Michael Inwood, ―Classification‖, in A Hegel
Dictionary (Oxford: Blackwell Publishers, 1992) at 55-58. For the history of the phrase ‗self-differentiating unity‘
in Greek and early Christian philosophy, see R.G. Collingwood, An Essay on Metaphysics (Oxford: Oxford
University Press, 2002) at 220.
9
Michael Oakeshott, ―The Concept of a Philosophical Jurisprudence II‖ Politica (1938) 345 at 352. On the
transformative power of a unifying idea, see Emerson, supra note 1 at 69: ―…show me the sublime presence of the
highest spiritual cause lurking, as always it does lurk, in these suburbs and extremities of nature; let me see every
trifle bristling with the polarity that ranges it instantly on an eternal law; and the shop, the plough, and the ledger,
referred to the like cause by which light undulates and poets sing;—and the world lies no longer a dull miscellany
and lumber-room, but has form and order; there is no trifle; there is no puzzle; but one design unites and animates
the farthest pinnacle and the lowest trench.‖
10
Waddams, supra note 4 at vi.
11
Ibid. at 3.
3
three interrelated elements (a unifying basis, a principle of division, and the instances subsumed
by that self-differentiating unity), any objection to classification will concern one or more of
these aspects. Just as the structure of classifications can be mapped, so too objections that
engage this structure can be mapped.12
Waddams offers four principal objections to legal classification, or as he calls it,
‗mapmaking‘: (1) maps obscure the complexity of legal instances; (2) maps misdescribe legal
judgment; (3) maps cannot account for the interplay between legal concepts; and (4) maps cannot
account for legal change. We can apply the map of the project of classification to Waddams‘
objections. Objections (1) and (2) challenge the adequacy of the unifying basis of private law.
Objection (3) targets the classificatory structure that emerges from the unifying basis. Objection
(4), which I consider in the fourth section, concerns how the unifying basis and the principle of
division relate to the instances that arise as a matter of legal experience. My response to each of
these objections is that they rest on mistaken presumptions about the nature of classification.
Waddams‘ first objection criticizes maps for obscuring the complexity of legal instances.
Since the purpose of a map is to increase understanding, and obscuring the complexity of legal
instances reduces understanding, an adequate map must not obscure the complexity of its
instances.13 In support of this position, Waddams refers to a litany of judges who emphasize the
tension between the untidiness of law and the orderliness of classification: Oliver Wendell
Holmes claimed that ―the life of the law has not been logic: it has been experience‖; Lord
Halsbury stated that ―every lawyer must acknowledge that the law is not always logical at all‖;
and Lord Wilberforce suggested that ―[t]here are many situations of daily life that do not fit
neatly into conceptual analysis.‖14
In his second objection, Waddams extends his claim that legal instances are too complex
to be adequately classified to the activity of legal judgment. Legal decision-making, he suggests,
is the result of judgment, which lacks uniformity both within and between jurisdictions. Since
the modes of legal decision-making exhibit great variety, the reasoning and conclusions of
judges may elude classificatory schemes. For Waddams, judicial reasoning is like Wittgenstein‘s
thread, the strength of which ―does not reside in the fact that some one fiber runs through its
whole length, but in the overlapping of many fibers.‖15 Drawing on the same image, Waddams
claims that ―from a historical standpoint‖ different strands of judicial reasoning ―appear…as
complementary strands in a single rope‖.16 This outlook stands in direct opposition to the
positing of a unifying basis that traverses the rope from beginning to end and thereby spans the
totality of instances of legal judgment. Thus, Waddams cites Justice Cardozo‘s statement that
the judge ―must balance all his ingredients, his philosophy, his logic, his analogies, his history,
his customs, his sense of right, and all the rest, and adding a little here and taking out a little
there, must determine, as wisely as he can, which weight shall tip the scales.‖17 The possibility
of a system of legal classification accounting for such a diverse matrix of factors is remote.
12
Of course, that objections to classification can be mapped does not indicate the features of a successful
classification of private law. It merely suggests that criticisms of mapmaking may be self-refuting. Like the
relativist who falls on his own sword by denying absolute truth while affirming relativism to be absolutely true, the
critic of classification denies the range of classification by offering criticisms that arise within it.
13
Waddams, supra note 4 at 2-3, 226-7.
14
Ibid. at 2.
15
Ludwig Wittgenstein, Philosophical Investigations, trans. by G.E.M. Anscombe (Oxford: Basic Blackwell, 1972)
at 32e.
16
Waddams, supra note 4 at 191.
17
Ibid. at 19.
4
Since legal judgments often issue from a bundle of factors rather than a classificatory scheme,18
it is unlikely that judgments can be reduced to such a scheme.
For Waddams, an adequate map reflects the totality and complexity of legally relevant
instances and judgments.19 However, a map that merely reflected its subject matter would be of
little value. Just as a geographical map that replicated its subject matter would make it no easier
to navigate through an unfamiliar terrain, so a map that presented the totality of legal instances
would fail to illuminate their shared features.20 A map, therefore, is not merely a mirror walking
through the roads of the legal world – the mere reflection of the totality of legal instances in all
their complexity would be no more intelligible than the instances themselves. If a map is to
elucidate the intelligibility of the legal world, it must abstract from some aspect of its instances.
The justification for abstraction is found in the unifying basis of a classification, which
distinguishes between the features of a subject that are essential and those that are merely
accidents. By requiring maps to reflect the endless particularities of legal instances, Waddams
risks losing sight of the general principles that legal particulars instantiate. The task of
classification is to illuminate these general principles.
As Blackstone remarked:
―[A]n…academical expounder of the laws…should consider his course as a general map of the
law, marking out the shape of the country, its connexions and boundaries, its greater divisions
and principal cities: it is not his business to describe minutely the subordinate limits, and to fix
the longitude and latitude of every inconsiderable hamlet.‖21
Waddams‘ third objection claims that legal maps posit mutually exclusive categories that
operate singly on each legal instance.22 As a result, maps will be unable to accommodate legal
instances that involve the interrelation of legal categories. 23 For example, because property and
obligations are mutually related concepts,24 Waddams concludes that their interrelation cannot be
mapped: ―The interrelation of property and obligation cannot readily be captured by a twodimensional map or diagram: neither is the one concept subordinate to the other, nor can they be
visualized as parallel and completely separate.‖25 If a legal classification consisted in mutually
exclusive and unrelated categories, then Waddams would be correct that interrelated categories
would be impossible to classify. Unfortunately, Waddams does not justify his claim that
classification ―implies a separation of legal concepts from each other, or the assignment of each
legal issue to one concept alone‖.26 As I have suggested, a classification seeks to make explicit
the relations between the categories that it presents, such that one can understand the significance
of each in relation to all others. Geographic maps and legal classification are analogous in this
respect. Just as a geographic map of a city presents the spatial relation between various locations
within a common area, so too a legal classification seeks to illuminate the conceptual
relationship between the legal categories of a common subject. Accordingly, an adequate legal
18
Ibid. at 34.
Ibid. at 14, 22, 222-223.
20
Beever and Rickett, supra note 4 at 331: ―Of course, legal maps do not capture the complexity of the law as a
whole. They could not perform their mapping function if they did. Just as street maps ignore detail in order to allow
a driver to find her way around the area more easily, so legal maps ignore detail – applications of principle to sets of
facts, legal procedures, etc – in order to allow the lawyer to find her way though the maze of legal concepts more
effectively.‖
21
Waddams, supra note 4 at 3.
22
Ibid. at 226, 232.
23
Ibid. at 142.
24
Ibid. at 190.
25
Ibid. at 183.
26
Ibid. at 226.
19
5
classification must articulate the conceptual interrelation between, for example, property and
obligation. Although this is not the place to address the serious problem that the relation
between property and obligations raises, it suffices to note that property concerns rights, whereas
obligations concern duties. If duties are correlative to rights, then an exhaustive classification of
private rights would entail an exhaustive classification of private duties. I provide an exhaustive
classification of private rights in the third section.
Taken as a whole, objections (1), (2), and (3) mischaracterize the classificatory project.
While objections (1) and (2) presume that legal classification must reproduce the totality of legal
instances and judgments, objection (3) presumes that the categories of classification are isolated
and mutually unrelated. These presumptions are at odds with the purpose of legal classification.
Since legal classification seeks to illuminate the general principles that unite diverse legal
instances, classification must abstract from the accidents of their subject matter. And since
classification seeks to articulate what its instances share, classification must explain the relation
between the categories of which its instances partake. In this light, Waddams‘ skepticism about
legal classification is groundless: the general obstacles that support his skepticism misconceive
the classificatory project and so pose no threat to it.
A legal classification can be constructed by providing a coherent set of answers to the
fundamental classificatory questions. What is the underlying unity of private law? In what way
is this unity differentiated? And how is this self-differentiated unity related to its instances? In
what follows, I consider the legal theories of Aristotle, Kant, and Hegel through the lens of these
classificatory questions. I argue that the classifications of Aristotle and Hegel share a common
incoherence. Each conceives of the unity of private law in a manner that conflicts with their
respective differentiations of that unity. Kant alone provides a coherent set of responses to the
classificatory questions. Accordingly, my central focus is on Kant‘s general approach to legal
classification, the specific features of the legal classification that he posits, and how his
classificatory enterprise departs from other theorists in the corrective justice tradition.
II. Aristotle’s Classification of Private Law
Aristotle answers the first classificatory question by positing corrective justice as the
unifying basis of private law. Corrective justice consists in the equality of one person in
interaction with another. The defendant upsets this equality by imposing a loss upon the plaintiff
that is correlative to his own gain. Through liability, the plaintiff seeks a remedy that restores a
relation of equality between the parties and so undoes the wrong. Since corrective justice
conceives of wrongs and remedies as relational, it captures the correlativity of private law
relationships and reflects our experience of private law. Moreover, by denying the relevance of
one-sided considerations such as the defendant‘s wealth or the plaintiff‘s need, corrective justice
excludes those considerations that lack relevance in the relational world of private law.27
A classificatory structure draws out the different ways in which instances relate to the
unifying basis. Having posited corrective justice as the unifying basis of private law, Aristotle
provides a principle of division. This division distinguishes between voluntary and involuntary
transactions affecting a plaintiff, corresponding to what we would now recognize as contract and
This account of Aristotle‘s answer to the first taxonomical question draws on Ernest J. Weinrib‘s ―Corrective
Justice in a Nutshell‖ (2002) 52 U.T.L.J. 349.
27
6
torts, respectively.28 Since every transaction is, from the perspective of the plaintiff, either
voluntary or involuntary, Aristotle‘s taxonomy appears to be exhaustive.
From a classificatory perspective, the difficulty with Aristotle‘s theory lies neither in the
austerity of his formal categories, nor in his silence with respect to fundamental areas of private
law and the doctrinal debates that surround them. From a classificatory perspective, the
difficulty with Aristotle‘s classification lies in the relation between his unifying basis and its
differentiation. A differentiation must cohere to the unity that it differentiates. If a unifying
basis is relational, then the categories through which it is differentiated must draw out the
relational aspects of that unity. Insofar as the division that Aristotle posits concerns the
voluntariness or involuntariness of the transaction, its focus is on the disposition of the plaintiff
in abstraction from the activities of others. Accordingly, the division does not elucidate what is
and is not permissible for others to do to the plaintiff. By generating categories that concern
merely the plaintiff, Aristotle‘s division is at odds with its unifying basis of corrective justice.
Under corrective justice, liability presupposes a relationship between the plaintiff and the
defendant that is unjust. If the unifying basis of private law is relational, then the categories of
that unity must provide a set of correlative relations that reflect the possible ways in which
persons can interact as equal agents and, in turn, those modes of interaction that are wrongful
because of their inconsistency with the equality of the interacting parties. A relational unifying
basis requires a relational set of categories rather than the monadic categories that Aristotle
posits.
Aristotle‘s failure is instructive. As Aristotle‘s error occurs in the transition from the
unifying basis to the branches of the classificatory structure, it can be resolved by returning to
the normative idea of corrective justice in order to discover the principle of division and
classificatory structure that emerges from its relational basis. In search of a legal classification
with a thoroughly relational normativity, I turn to Kant. I present Kant‘s theory of private law in
a set of conceptual stages that constitute his legal classification: unity, self-differentiation, and
finally application to the world of legal instances.
III. Kant’s Classification of Private Law
Like Aristotle, Kant conceives of private law as a set of norms that regulate the
interaction of equal persons. The unifying basis of Kant‘s taxonomy is the principle of right,29
―the sum of conditions under which the choice of one can be united with the choice of another in
Aristotle, Nicomachean Ethics, trans. by J.A.K. Thompson (New York: Penguin Books, 1976) at 1130b30: ―One
kind of particular justice, and of that which is just in the corresponding sense, is that which is shown in the
distribution of honour or money…and another kind which rectifies the conditions of a transaction. This latter kind
has two parts, because some transactions are voluntary and others involuntary. Voluntary transactions are, e.g.,
selling, buying, lending, at interest, pledging, lending without interest, depositing, and letting (these are called
voluntary because the initial stage of the transaction is voluntary). Involuntary transactions are either secret, such as
theft, adultery, poisoning, procuring, enticement of slaves, killing by stealth, and testifying falsely; or violent, e.g.
assault, forcible confinement, murder, robbery, maiming, defamation, and public insult.‖ Note that some editors
reject the bracketed text.
29
See Roger Sullivan, ‗Introduction‘ in Immanuel Kant‘s The Metaphysics of Morals (Cambridge: Cambridge
University Press 1996) at x: ―In the matter of terminology, there are special problems with translating the German
word ‗Recht.‘ Like the Latin ‗ius‘, it can mean law or justice or right. Translated here by the noun ‗right,‘ it can
refer to the ultimate moral law, or to a system of laws following from it, or to one of the parts of such a system. As
an adjective ‗right‘ describes behavior that accords with morally correct civil law and that may be coerced
legitimately by legal authority. The sense generally is clear from the context.‖
28
7
accordance with a universal law of freedom.‖30 The concept of right consists of three
interrelated aspects: externality, choice and freedom. First, the concept of right has to do ―only
with the external and indeed practical relation of one person to another, insofar as their actions,
as deeds can have (direct or indirect) influence on each other.‖31 As right concerns relation
through external action, it can be distinguished from the internal perspective of Kantian ethics.
Second, right ―does not signify the relation of one‘s choice to the mere wish (hence also to the
mere need) of the other, as in relation of beneficence or callousness, but only a relation to the
other‘s choice.‖32 This second aspect follows from the first because both wishing and need occur
within agents and so do not themselves constitute an external relation.33 Thus, like Aristotle,
Kant excludes the juridical significance of one-sided considerations pertaining to agents in
isolation from others. One‘s wish to acquire a wild fox or to have a sunny pool and cabana area
imposes no duties on others.34 Choice, however, is necessarily externalized insofar as it
presupposes taking up means in pursuit of a purpose. A legal relationship arises from the
externalized choices of persons rather than their private internal states. The first and second
aspects of right, the externality of the relation and the choice of the agents, culminate in a third
aspect:
In this reciprocal relation of choice no account at all is taken of the matter
of choice, that is, of the end each has in mind with the object he wants; it
is not asked, for example, whether someone who buys goods from me for
his own commercial use will gain by the transaction or not. All that is in
question is the form in the relation of choice on the part of both, insofar as
choice is regarded merely as free, and whether the action of one can be
united with the freedom of the other in accordance with a universal law.35
Right abstracts from the material ends that each agent may have and instead concerns whether
the form of the external relation is consistent with the freedom of each agent‘s choice. The
universal principle of right combines these three aspects (externality, choice and freedom) into a
whole: ―Any action is right if it can coexist with everyone‘s freedom in accordance with a
universal law, or if on its maxim the freedom of choice of each can coexist with everyone‘s
freedom in accordance with a universal law.‖36 As right, unlike ethics, sets no obligatory ends,
the principle of right expresses that the legality of an action consists in it being compatible with
the external free agency of others. Thus, the universal principle of right is at once relational and
normative insofar as it seeks to reconcile the external freedom of independent persons.
30
Immanuel Kant, Doctrine of Right in The Metaphysics of Morals in Practical Philosophy, trans. by Mary Gregor
(Cambridge: Cambridge University Press, 1996) at 6:230.
31
Ibid.
32
Ibid.
33
Although Kantian right abstracts from the need of agents, its theory of public law recognizes a duty on the state to
respect and protect the independence of persons. Persons cannot be independent if their basic human needs are not
satisfied. I discuss the duty of the state with respect to the independence of persons in ―Kant on Citizenship and
Universal Independence‖ (2008) 33 Austl. J. Legal Phil. 1 at 15-25.
34
Pierson v. Post 3 Caines 175, 2 A.D. 264 (N.Y. Sup. Ct., 1805); Fontainebleau Hotel Corp. v. Forty-Five TwentyFive, Inc. 114 So. 2d 357 (Fla. Dist. CA 1959).
35
Kant, Doctrine of Right, supra note 30 at 6:230.
36
Ibid.
8
Whereas the concept of right highlights the permissibility of an action, innate right
presents the same concept from the perspective of a free actor. Innate right is defined as
―Freedom (independence from being constrained by another‘s choice), insofar as it can coexist
with the freedom of every other in accordance with a universal law‖.37 Each person has an
innate right to act in pursuit of their purposes without interference from another, as long as one‘s
actions are consistent with the same freedom of others. Such a right is innate because it belongs
to every person independently of action in virtue of their purposiveness. As persons pursue their
purposes through their bodies, anyone who interferes with another‘s body commits a wrong. The
right to bodily integrity gains expression in tort law. In Justice Cardozo‘s classic formulation,
―Every human being of adult years and sound mind has a right to determine what shall be done
with his own body‖.38
Innate right entails a series of authorizations ―which are not really distinct from it‖.39
First, bearers of innate right possess ―innate equality, that is, independence from being bound by
others to more than one can in turn bind them; hence a human being‘s quality of being his own
master‖.40 Our innate equality generates reciprocal limits on freedom: every person is free to
engage in any act that does not infringe the rights of another. Innate equality also imposes a
duty, which Kant calls rightful honor. This duty consists in asserting one‘s status as a juridical
being by using one‘s freedom to pursue one‘s own purposes rather than subordinating it to the
purposes of another. As a matter of right, persons have a duty to assert their own purposiveness
in their interactions with others. Thus, a person who enslaves himself to a master violates his
own duty of rightful honor, whereas the master‘s subjugation of the slave violates the slave‘s
innate equality. Second, bearers of innate right are ‗beyond reproach‘ because prior to
committing an act affecting rights, one cannot wrong another.41 One does not wrong another
simply by being what one is.
Right contains an authorization to coerce. As independent beings, persons have the right
to pursue their purposes in ways that are consistent with the same freedom of others. Any
private person who interferes with the freedom of another does wrong by violating the reciprocal
limits to which the freedom of equal persons is subject. Recall that Kant conceives of freedom
as independence from being constrained by another‘s choice. Wrongful coercion consists in a
―hindrance or resistance to freedom‖ that subjects the independence of one agent to the choice of
another.42 Rightful coercion hinders the hindrance to freedom by restoring the independence of
each agent.43 While wrongful coercion may violate the enjoyment of a right, wrongful coercion
does not negate the rights of others. The same right that entitles persons to independence from
another‘s wrongful choice entitles persons to a remedy from a wrongdoer. To achieve its
purpose of restoring the independence of the plaintiff and defendant, the remedy must reflect the
nature of the wrong imposed. As Kant remarks, even if another ―has wronged me and I have a
right to demand compensation from him, by this I will still only preserve what is mine
undiminished but will not acquire more than what I previously had.‖44 Thus, for Kant—as for
Aristotle—liability is not a spontaneous juridical event mandated by considerations of
37
Ibid. at 6:237.
Schloendoff v. Society of New York Hospital, 211 NY 125 (1914).
39
Kant, Doctrine of Right, supra note 30 at 6:237.
40
Ibid. at 6:237-8.
41
Ibid. at 6:238.
42
Ibid. at 6:231.
43
Ibid.
44
Ibid. at 6:271.
38
9
expediency. Rather, liability presupposes wrongdoing in the context of a prior juridical
relationship.
The universal principle of right establishes the conditions that are consistent with right,
but does not indicate the particular rights that persons can enjoy. Innate right follows
analytically from the universal principle of right and establishes a right to be free from the
interference of other persons with respect to one‘s body. In a juridical world in which the only
right is innate, persons would enjoy rights to their bodies but not to things beyond their bodies.
In such a world, one could occupy the space in which one‘s body resides and thereby impose a
duty on others to refrain from entering it. Similarly, one could wrap one‘s hands around an apple
and put others under a duty to refrain from touching it. In these instances, however, the right is
only to one‘s bodily integrity and not to the space or to the apple itself. When one moves from
one location to another, the space that one had occupied becomes available to others, just as the
apple that is released can subsequently be handled by another. 45 My innate right requires that
others not interfere with my body, which is internally mine, but it establishes no rights to
external things.
Innate right contains possibilities that it cannot justify. It establishes that persons are free
to pursue their purposes in ways that are consistent with the same capacity of others. However,
pursuing one‘s purposes may require entitlements to things that are not in one‘s physical
possession. After all, physically possessing an apple in my hand may satisfy a particular purpose
of mine, but it does not contribute to my purposiveness because it limits the means with which I
can pursue my purposes to those that are in my physical possession. Accordingly, Kant
considers whether it is possible for persons to have a right to something external such that one
could be wronged by another‘s unauthorized use even if one‘s body was not intertwined with the
object. Such a conception of possession is not physical but juridical insofar as it concerns the
compatibility of freedom with having external things rather than the mere strength of one‘s
grasp.
Since innate right yields merely a right to one‘s body but not to external things that are
distinct from it, determining whether there can be a right to external things requires a postulate
that extends the principle of right to external objects of choice. The postulate of practical reason
with regard to rights holds ―that it is a duty of right to act towards others so that what is external
(usable) could also become someone‘s‖.46 Having formulated the postulate, Kant seeks to
provide a deduction of it. As Kant explains in the Critique of Pure Reason, a deduction is a term
that jurists use when determining the legitimacy of an act. 47 In deducing the postulate, Kant
seeks to determine whether the postulate, and so the possibility of having external objects of
choice, is consistent with innate right.
That the postulate is harmonious with innate right is evident from the following
considerations. Innate right permits all actions that are consistent with the independence of
persons from the constraint of another‘s choice. The juridical world is divided into persons, who
are bearers of innate right and impose duties on others, and things, which lack the capacity to
have rights or duties. Because persons have no innate right to external objects of choice, they
45
Ibid. at 6:247.
Ibid. at 6:252.
47
Kant, The Critique of Pure Reason, trans. by N.K. Smith (New York: Macmillan Publishers, 1985) at A7678/B795-6: ―JURISTS, when speaking of rights and claims, distinguish in a legal action the question of right (quid
juris) from the question of fact (quid facti); and they demand that both be proved. Proof of the former, which has to
state the right or the legal claim, they entitle the deduction.‖
46
10
cannot be wronged with respect to them. Since the freedom of persons does not exclude having
external objects of choice, the only possible ground of restriction arises from the external things
themselves. But because things lack innate right, they cannot impose duties on persons to refrain
from using them. In making usable things unusable, a restriction would be placed on freedom
that freedom itself does not require. The consistency of the postulate with innate right indicates
the permissibility of having external objects of choice.
Such a conclusion cannot be overturned by the wishes or needs of others, which being
internal to one party have no significance in the relational world of juridical norms. One‘s needs
or wishes may be frustrated by what another has acquired, but one‘s wishes or needs can impose
no duty on others to act in conformity with one‘s preferences. What is internal to one party
cannot establish reciprocal limits on freedom.
While innate right unifies Kant‘s theory of private law, the postulate is the principle of
division through which that unity is self-differentiated. From the perspective of innate right, the
legal relationship between one person and another is identical: all actors have the same right to
be independent of the choices of others and all have the same duty to respect the independence of
other agents. In a legal world with a single norm, no division is possible. A single class can be
described, but it cannot be classified. The possibility of legal classification follows from the
deduction of the postulate of private right. The postulate indicates that it must be possible for the
will to have external objects of choice. Accordingly, an exhaustive classification can be
produced by elucidating the external objects of choice that the will can acquire. That the
juridical world is composed of persons (beings with will) and corporeal things (which lack will)
enables an exhaustive classification. First, persons can acquire a corporeal thing. Second,
persons can acquire the performance of another’s will. The third possibility arises from
considering the second possibility from the perspective of the first. A person can acquire
another person’s will rather than his or her performance on a particular occasion, although the
nature of this possession reflects the innate right of both persons.
Just as each of these possibilities can be described in terms of the external object of
choice that is acquired, so too each can be described with reference to the right involved. In each
case the right distinguishes between the physical and the juridical possession of an external
object of choice. The first involves a right to a thing such that another‘s unauthorized use would
be wrongful even if the owner lacked physical possession of it. If I have a right to this apple,
then I am wronged by another using it without my consent even if I am not presently holding it.
The second involves a right against a person such that ―I am in possession of the other‘s choice
(to determine him to perform it) even though the time for his performing is still to come.‖48 If I
have a right to have you transfer your horse to me in the future, then my right to your future
performance is presently in my possession. The third involves the right to a person akin to a
thing, that is, the right to possess another person ―insofar as I get a right to make arrangements
about him (deal with him).‖49 One‘s right to possess one‘s child, for example, obtains even if
that child wanders from one‘s home.
The classification of private rights is at once normative and relational because it specifies
the ways in which independent persons can interact in harmony with the freedom of everyone. I
will briefly discuss each type of right in turn.
(1) A right to a thing. Kant‘s discussion of a right to a thing occurs in two stages.
48
49
Kant, Doctrine of Right, supra note 30 at 6:248.
Ibid. at 6:259.
11
First, Kant considers how having a right to a thing is consistent with the freedom of
everyone. Innate right has an ambivalent relation to property. On one hand, innate right permits
the possession of external objects as one‘s own. As the deduction of the postulate of practical
reason with regard to rights indicated, innate right does not extend to external object of choice,
and so another‘s ownership of such an object occasions no wrong. Far from being inconsistent
with freedom, the possibility of having external objects of choice facilitates freedom by enabling
persons to use external things in pursuit of their purposes. On the other, innate right and
property stand in tension. Innate right entitles persons to determine their own purposes.
Property, however, involves the exercise of a unilateral will through which the proprietor
imposes duties on all others. The tension between innate right and property consists in the
entitlement of free persons to determine their own purposes and the proprietor‘s unilateral
imposition of duties upon them.
In the state of nature, innate right gives rise to a set of conflicting entitlements with
respect to property. The proprietor may stand on his right and insist that all others respect his
possession. All others may stand on their right to be independent by refusing to capitulate to the
proprietor‘s unilateral will.50 Insofar as right is an entitlement to coerce, a proprietor may use
coercion to protect her property against the intrusions of others. In turn, those others may assert
their own independence by resisting the unilateral and coercive will of proprietors. Although the
state of nature need not be violent, it is necessarily a condition that is ―devoid of justice‖. 51 In
the absence of a public authority to resolve legal disputes and enforce resolutions, each person,
as an independent being, is entitled to do ―what seems good and right to it and not to be
dependent upon another‘s opinion about this.‖52 In the event of a dispute about rights,
independent persons have a juridical entitlement to determine what is right in their own eyes
rather than submit to the judgment of another. But since all others have the same juridical
entitlement, the state of nature is necessarily a condition in which independent persons are
subject to the choices of others. Since remaining in the state of nature is inconsistent with the
independence of persons, all are under an obligation to leave the state of nature and enter into
what Kant calls a rightful condition, that is, a condition of public law in which all can enjoy their
rights.53
The conflicting entitlements surrounding property can be resolved only in the civil
condition.54 In this condition, an impartial public authority makes law, resolves disputes about
law, and enforces law. Whereas property in the state of nature involves the unilateral imposition
of duties on all others, the civil condition authorizes property, in accordance with the postulate of
practical reason with regard to rights, without subjecting any private person to the choice of
another. In the civil condition, the property regime is fully reciprocal: all persons are entitled to
acquire property and all are required to respect the property of others. In the event of a dispute
about property, one is not subject to another‘s private judgment, nor is another subject to one‘s
own. Parties may bring their dispute before an impartial judge who determines what right
requires in their particular circumstances. In turn, public enforcement of the judicial
50
Ibid. at 6:257, 6:264.
Ibid. at 6:312.
52
Ibid.
53
Ibid. at 6:306-7. For a discussion of the centrality of this obligation in Kant‘s theory of public law, see my ―The
Juridical Significance of Kant‘s ‗Supposed Right to Lie‘‖ (2008) 13 Kantian Review 141. On the obligation to leave
the state of nature and enter into a condition of public law, see Arthur Ripstein, Ripstein, Force and Freedom:
Kant’s Legal and Political Philosophy (Cambridge: Harvard University Press, 2009) at 145-181.
54
Ibid. at 6:256.
51
12
determination ensures that no one is subject to private coercion at the hands of another. Because
property in the civil condition is publicly authorized, adjudicated, and enforced, property is fully
consistent with the independence of persons.
Having explained how the duty correlative to a property right is consistent with the
freedom of everyone, Kant turns to the second stage of his account, which considers how one
acquires such a right. Acquisition involves a public act in which one takes possession of an
object in space and time. That acquisition must be public follows from the requirement that the
duty be knowable to those who are bound by it. That acquisition requires one to take possession
indicates that a property right follows not from the mere wish of a potential acquirer but from an
agent‘s choice.55
As a juridical category, property mirrors innate right and gains significance in tort law.
In innate right and property, persons use what is theirs – whether their bodies or the external
things in their possession – to pursue their purposes. Just as all are under a duty to respect the
bodily integrity of others, so too all are under a duty to respect the means that persons possess.
One need not act in ways that are favorable for the projects of others, but one may not interfere
with their bodies or their property because doing so violates their right to independence.
(2) A right against a person. A right against a person, as in a contract, entitles one to have
another perform an action. Kant defines a contract as an ―act of the united choice of two persons
by which anything at all that belongs to one passes to the other‖.56 If contract is to be consistent
with freedom, contractual rights and duties must be acquired through the mutual consent of the
parties to it. A contractual right to another‘s performance cannot be acquired by making an offer
to another or accepting an offer that the other has not made because these possibilities subject the
freedom of one party to the unilateral fiat of another. Nor can a contractual right be acquired by
one abandoning and another subsequently acquiring it. Such a sequence would generate a right
to a thing (as in property) – assuming that a third party did not acquire the thing in the interval in
which neither contracting party owned it – rather than a right against a person, as in contract. A
contractual right is created through a simultaneous promise and acceptance of the contractual
terms agreed upon by the promisor and promisee.
In a contract, the promisee acquires a right to the promisor‘s performance. The contract
transfers the promisor‘s performance to the juridical possession of the promisee and thereby
includes it within the means of the promisee. While a contractual relation is consistent with the
freedom of promisor and promisee, the promisor‘s breach is inconsistent with the entitlement of
the promisee and the duty of the promisor. The breach of a contract by one of the parties is
wrongful because a legal relationship that is established through the bilateral choice of two
parties cannot be annulled unilaterally. The promisor‘s unilateral breach of contract withholds
Kant‘s account stands in direct contrast with other theorists, such as Locke and—as I will discuss below—Hegel.
Locke begins with the second stage and holds that one acquires a right to possess an external thing by using that
thing. Whereas Locke holds that one somehow possesses a thing because one has used it, Kant holds that one
cannot use a thing unless one possesses it, which in turn presupposes the rightfulness of possession. Turning to the
first stage, Locke conceives of property not as a relation between independent persons but rather as a relation
between a person and a thing. In this relationship, the person‘s interaction with the thing distinguishes the owner
from all other persons with respect to it. Kant ridicules this view as a ―guardian spirit‖ theory of property because it
suggests that a right to a thing involves a juridical relationship between a person and a thing, in which the owner‘s
right to the thing is correlative to the thing‘s duty to the owner to repel other users. Such a view is inadequate
because one‘s relation to a thing imposes no juridical duties on others. See John Locke, The Second Treatise of
Government (Toronto: Prentice Hall, 1997) at 16-30 and Kant, Doctrine of Right, supra note 30 at 6:260.
56
Ibid. at 6:271.
55
13
performance, but insofar as possession is juridical, the breach extinguishes neither the
entitlement of the promisee nor the duty of the promisor, which are the joint products of their
bilateral relationship.
(3) A right to a person akin to a right to a thing. In what Kant calls a relationship of status, one
party acts on behalf of the other. The distinction between status and property reflects the subject
of the right. In property, the subject of the right is a thing, which the possessor may use in
keeping with his or her purposes. In status, however, the subject of one‘s right is a person, that
is, a bearer of innate right, who may be possessed but who cannot be used at the discretion of the
right holder. Relationships of status arise when parties interact interdependently such that the
vulnerability of one precludes the genuine consent of the other. The rightfulness of such a
hierarchical relation requires that the party who acquires a right to determine the purposes of the
dependent party also acquires a duty to operate on the dependant party‘s behalf. Kant‘s most
intuitive example of a status relationship involves parents and children. Parents act unilaterally
by bringing children into the world without their consent. The parents‘ unilateral act of creating
a dependent child is made rightful by their legal duty to act on the child‘s behalf and to promote
the child‘s independence.57 The creation of dependent children is rendered rightful by the
parents‘ duty to develop independent adults. The normative structure of a status relationship
appears in the common law category of fiduciary relationships, in which the interests of the
beneficiary are wholly vulnerable to the fiduciary‘s choice. In a fiduciary relationship, the law
maintains the equality of the parties by imposing a duty on the fiduciary to act in the interest of
the beneficiary.58
Private rights can be understood in terms of the basis of their subject matter, their mode
of acquisition, or their recognition in established legal categories. One can have a right to a
thing, another‘s performance, or to another person. As for the mode of acquisition, a right to a
thing is acquired unilaterally, a right against a person is acquired bilaterally, and a right to a
person akin to a right to a thing is acquired omnilaterally. These categories are instantiated in
private law by property, contract, and fiduciary obligations. I summarize this scheme in the
following chart:
Right
Matter
Basis of Acquisition Legal instantiation
Right to a thing
Thing
Unilateral choice
Property
Right against a person
Performance
Bilateral choice
Contract
Right to a person akin to a thing
Person
Omnilateral choice Fiduciary Obligations
We are now in a position to see why Kant‘s taxonomy of private right takes us beyond
the efforts of Aristotle. Aristotle‘s taxonomy failed because the relational character of its
unifying basis was at odds with the non-relational character of its principle of division. The
normativity of the Kant‘s taxonomy, in contrast, is thoroughly relational. Its unifying basis
consists in a relational norm, the principle of right, which requires that action be consistent with
57
Ibid. at 6:281.
Kant does not relate his status relationship to fiduciary obligations. Whether the normative structure of a fiduciary
obligation is captured by the category of status is a serious question that I cannot consider here.
Whereas the category of status considers the right to a person akin to a right to a thing, a further category would
arise by considering a right to a thing akin to a right to a person. The incoherence of this possibility precludes its
realization in experience. A right to a thing akin to a right to a person would involve a thing imposing a duty on its
possessor to refrain from using it. Although persons can impose duties on the activities of others, things cannot
impose duties on their possessors to refrain from using them. The freedom of purposive beings may be limited
solely by the systematization of that value.
58
14
the equal freedom of independent persons. The extension of the universal principle of right to
external things gives rise to a relational classificatory structure that reflects the normative
conception of interaction at work in the universal principle of right. Thus, Kant‘s account of
private right demonstrates how having external objects of choice is consistent with reciprocal
limits on freedom for independent persons and provides an exhaustive set of private rights by
delineating the external objects of choice to which one may have a right. The coherence of
Kant‘s taxonomy consists in the conceptual harmony between its unifying basis and the principle
of division that follows from it.
IV. Classification and Legal Change
In the final stage of classification, the instances demarcated by the unifying basis are
subsumed and ordered under the branches that issue from the principle of division. The relation
between classification and its instances can be explored by reflecting on the fourth objection,
mentioned above, that Waddams raises in Dimensions of Private Law.
Waddams claims that classification cannot account for one of the most fundamental
features of private law, legal change.59 In his view, this failure reflects the disjunction between
legal classification and its subject matter: classification is static; the common law is dynamic.
An adequate classification would reflect existing legal rules. Accordingly, a classification or
map can anticipate how a legal question would be resolved in accordance with established rules,
but ―where liability is imposed in novel circumstances the conclusion cannot be derived from a
pre-existing map.‖60 Since the common law is ever-changing, an adequate classification would
soon become obsolete. Thus, Waddams‘ description of the common law evokes Heraclitus‘
description of the cosmos: ―Changing it is at rest.‖61 In a system engaged in constant flux, things
do not remain the same for the descriptions that arise subsequently to remain applicable. An
ever-changing subject defies classification.
In response, I suggest legal change occurs in two ordered stages. The first involves the
positing of a general principle that animates seemingly discrete legal instances, as in Lord
Atkin‘s classic judgment in Donoghue v. Stevenson and Lord Mansfield‘s formulation of unjust
enrichment in Moses v. MacFerlan.62 The second draws out the rules by which this principle is
related to legal instances. Whereas the first stage of legal change is explicitly classificatory, the
second furthers the first by supplying the rules that relate general principles to concrete legal
instances that arise in experience. An adequate classification can account for legal change
because legal change occurs within and is expressive of its principled categories.
In Donoghue v. Stevenson, Lord Atkin lamented on ―how difficult it is to find in the
English authorities statements of general application defining the relations between parties‖ that
culminate in a duty of care.63 The basis of this difficulty lies in the nature of the judicial system:
the judgments of courts concern ―the particular relations which come before them in actual
litigation, and it is sufficient to say whether the duty exists in those circumstances.‖64
59
Waddams, supra note 4 at 12-13.
Ibid.
61
Heraclitus of Ephesus in Richard D. McKirahan Jr., ed., Philosophy Before Socrates (Indianapolis: Hackett
Publishing Company, 1994) at 124 (fragment 10.78 (84a)).
62
M’Alister (or Donoghue) v. Stevenson [1932] AC 562 (HL) [Donoghue]; Moses v. MacFerlan (1760), 97 E.R.
676, 2 Burr. 1005 (K.B.).
63
Donoghue, ibid. at 579.
64
Ibid.
60
15
Consequently, in considering whether a duty of care existed in a particular case, Lord Atkin
found himself confronted not by a general principle that articulates the relationship between
persons that gives rise to a duty of care, but by a series of ―distinctions based on the particular
relations of the one side or the other, whether manufacturer, salesman or landlord, customer,
tenant, stranger, and so on.‖65 Rather than attempt to subsume the case at hand to a ―particular
species‖ of duty that the law had previously recognized, Lord Atkin formulated a general
conception that unified the particulars: ―[T]he duty which is common to all the cases where
liability is established must logically be based upon some element common to the cases where it
is found to exist…[T]here must be, and is, some general conception of relations giving rise to a
duty of care, of which the particular cases found in the books are but instances.‖ 66 Lord Atkin‘s
neighbour principle draws out the normative unity implicit in the fragmentary instances in which
the law recognized a duty of care to obtain.67 That such a principle must exist reflects private
law‘s aspiration to discern the normative significance of its instances in order to provide just
resolutions that are consistent between like cases.
Lord Atkin‘s search for a unitary principle that animated a series of isolated particulars
was prefigured by Lord Mansfield‘s articulation of unjust enrichment as a distinct basis of
liability in Moses v. MacFerlan. Reflecting on the writs that instantiate the principle of unjust
enrichment, Lord Mansfield claimed that the plaintiff should recover money that ―ought not in
justice to be kept‖ in cases ―for money paid by mistake; or upon a consideration which happens
to fail; or for money got through imposition (express, or implied;) or extortion; or oppression; or
an undue advantage taken of the plaintiff‘s situation contrary to laws made for the protection of
persons under those circumstances.‖68 By discerning the shared normativity of these instances,
Lord Mansfield articulated a novel basis of liability: ―In one word, the gist of this kind of action
is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice
and equity to refund the money.‖69 Despite his insight, Lord Mansfield‘s discovery of unjust
enrichment was largely ignored until Warren Seavey and Austin Scott reintroduced it to the legal
world:
It so happens…that because of the way in which the English law developed, a
group of situations having a distinct unity has never been dealt with as a unity
and because of this has never received adequate treatment. It was for the purpose
of making clear the principles underlying this group and of attempting to give to
it the individual life and development which its importance demands that the
restatement of this subject was undertaken.70
65
Ibid.
Ibid. at 580.
67
Ibid.: ―You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be
likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so
closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected
when I am directing my mind to the acts or omissions which are called in question.‖
68
Supra note 62.
69
Ibid.
70
Warren Seavey and Austin Scott, ―Restitution‖ (1938) 54 Law Q. Rev. 29.
66
16
For Seavey and Scott, so long as the principle of unjust enrichment remains unrecognized, the
normative significance of its instances cannot be adequately understood: ―a theory of restitution
is essential to dealing justly between the parties.‖71
If legal change consisted merely in the accumulation of a miscellany of isolated
fragments, then Waddams would be correct that classification cannot account for legal change.
Lord Atkin and Lord Mansfield, however, provide an alternate conception of legal change, in
which unifying principles illuminate the shared normativity of seemingly discrete instances.
Such a conception of legal change is classificatory because it seeks to bring order to legal
instances by referring them to the categories expressive of private law‘s self-differentiating
unity.
Because these categories must be related to legal instances, the positing of such
categories marks an initial stage in the process of legal change rather than its conclusion. In their
―Restatement,‖ Seavey and Scott explain that every basis of liability in private law is rooted in a
unitary principle. The principle of torts is that ―a person has a right not to be harmed by another,
either with respect to his personality or with respect to interests in things and in other persons.‖72
Similarly, the principle of contracts is that ―a person is entitled to receive what another has
promised him or promised another for him.‖73 In turn, Seavey and Scott conceive of the
principle of restitution as follows: ―A person has a right to have restored to him a benefit gained
at his expense by another, if the retention of the benefit by the other would be unjust.‖74 Of
course, one might object that these principles are so general that they lack meaning in relation to
the concrete instances that they subsume. In relation to torts, one might ask, what is a harm or
what is a right? And in relation to contracts, one might ask, when is an utterance a promise? As
for restitution, one might ask, what makes the retention of another‘s value unjust?
As Seavey and Scott note, the general principles lack the resources to answer these
questions. To know what harms are wrongful, what constitutes a promise, or what is unjust
about retaining another‘s value, we require ―an extensive set of individual rules‖ that relate the
general principles to their particular instances.75 Following Kant, I call these individual rules
intermediary principles.76 These individual rules are principles because the means of relating a
general principle to a particular instance cannot diverge from that general principle. Means of
application are subordinate to the principle that they apply. These individual rules are
intermediary because if their purpose is to relate a general principle to a particular instance, then
they can be neither wholly general (like the principle that they apply) nor wholly particular (like
the instances to which they are applied). Through the study of law, we discover intermediary
principles that indicate when a harm is wrongful, when a promise creates a contractual right, and
when retaining another‘s value is unjust. Accordingly, it is not the case that the positing of a
71
Ibid. at 31. See also Deane J. in Pavey & Matthews Proprietary Ltd. v. Paul (1986) 162 C.L.R. 221 (H.C.
Australia): ―[The concept of unjust enrichment] constitutes a unifying legal concept which explains why the law
recognizes, in a variety of distinct categories of case, an obligation on the part of a defendant to make fair and just
restitution for a benefit derived at the expense of a plaintiff and which assists in the determination, by the ordinary
processes of legal reasoning, of the question whether the law should, in justice, recognize such an obligation in a
new or developing category of case…‖
72
Seavey and Scott, supra note 70 at 32.
73
Ibid.
74
Ibid.
75
Ibid. at 34.
76
Kant provides a discussion of the role of intermediary principles in public law in ―On a Supposed Right to Lie
from Philanthropy‖ in Practical Philosophy, supra note 31 at 8:430. For a discussion of this passage, see my ―The
Juridical Significance of Kant‘s ‗Supposed Right to Lie‘‖ (2008) 13 Kantian Review 141 at 163-4.
17
general principle resolves all legal questions that flow from its instances. Rather, the general
principle requires a set of intermediary principles that draw out the normative significance of its
instances. A basis of liability—whether tort, contract or restitution—―is an organism, growing in
accordance with the principle which causes it to exist; a statement of the principle is not a
description of what it produces.‖77
Lord Mansfield famously asserted that the common law ―works itself pure by rules drawn
from the fountain of justice‖.78 An adequate classification seeks not to do the impossible by
anticipating all future developments in private law ab initio. Both the way in which
developments arise and the subject of the developments themselves preclude such limitless
foresight. After all, developments in private law are not the result of logical deductions: legal
development flows from the interrelation between an existing legal system—with its various
shortcomings—and the contingent historical and social facts that surround it. As for the
developments themselves, they are not a finite ―series of isolated points‖ to be achieved one by
one from the first to the last: the subject of the developments is freedom, an infinite continuum in
which our growing insights may forever be refined.79 Classification seeks to illuminate the
infinite continuum in which legal change occurs. Through its unifying basis, classification
articulates the conception of justice to which all general principles of liability belong. These
general principles are related to their instances through intermediary principles. Since the
intermediary principles are but emanations of the general principles, the normativity of the
general principles provide the touchstone for assessing the adequacy of the intermediary
principles. To this end, classification not only articulates the categories in which legal change
occurs, but upholds these categories as the normative standard to which all intermediary
principles must conform and amplify.
For example, now that the category of unjust enrichment has been recognized as a basis
of private law liability,80 jurists face a threefold task in developing it. First, they must explain
what makes certain enrichments unjust. If unjust enrichment is to be a basis of liability, the
conception of injustice that it entails must reflect the unity of private law. Second, jurists must
explain the relation between unjust enrichment and other bases of liability. So, for example,
although unjust enrichment does not appear in Kant‘s legal classification, a Kantian
classification of private law would have to set out how the elements of liability that constitute
unjust enrichment – the enrichment of the plaintiff, the corresponding deprivation of the
defendant, and the injustice of the defendant‘s retention of the enrichment – give rise to an in
personam right and how this kind of in personam right differs from other in personam rights,
such as those that flow from a contract.81 Third, jurists must formulate intermediary principles
77
Seavey and Scott, supra note 70 at 34.
Omychund v. Barker (1744) 1 Atk 21, 33-4.
79
See Poe et al. v. Ullman, State’s Attorney, 367 U.S. 497 at 542 (1961).
80
Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd [1943] AC 32 at 61: ―It is clear that any
civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust
benefit, that is to prevent a man from retaining the money of or some other benefit derived from another which it is
against conscience that he should keep. Such remedies in English law are generically different from remedies in
contract or in tort, and are now recognized to fall within a third category of the common law which has been called
quasi-contract or restitution.‖
81
On the relationship between the Kantian theory of private law and unjust enrichment, see Ernest J. Weinrib,
―Correctively Unjust Enrichment‖, in Robert Chambers, Charles Mitchell, and James Penner, eds., Philosophical
Foundations of Unjust Enrichment (Oxford: Oxford University Press, 2009).
78
18
(such as incontrovertible benefit, change of position, etc.) that enable principled and consistent
judgments about instances that arise in legal experience.
Classification consists in a unifying basis, a principle of division issuing in a
classificatory framework, and the instances that are subsumed. The Kantian classification
conceives of the unifying basis as the universal principle of right, or as Kant reformulates the
principle from the perspective of a free person, ‗innate right‘: ―Freedom (independence from
being constrained by another‘s choice), insofar as it can coexist with the freedom of every
other‖.82 The principle of division is what Kant calls the postulate of practical reason with
regard to rights, which indicates that having external objects of choice is consistent with innate
right. The classificatory framework draws out the external objects of choice to which one
acquires a right: a right to a thing (property), a right against a person (contract and, as I merely
suggest, unjust enrichment), and a right to a person akin to a right to a thing (fiduciary
obligation). These kinds of rights are related to instances that arise in experience through
intermediary principles. The Kantian taxonomy of the rights of private law is illustrated in the
following chart:
THE KANTIAN TAXONOMY OF THE RIGHTS OF PRIVATE LAW
Universal Principle of Right/Innate Right
(Unifying Basis)
Rights to External Objects of Choice
(Principle of Division)
Right to a thing
(Property)
Right against a person
Right to a person akin
to a right to a thing
(Fiduciary Obligation)
Contract
Unjust Enrichment
Kinds of Property
Kinds of Contract
Kinds of Unjust Enrichment
Kinds of Fiduciary
Obligations
Intermediary Principles
Intermediary Principles
Intermediary Principles
Intermediary Principles
Instances
Instances
Instances
Instances
Some may object that this taxonomy overlooks crucial elements of private law, such as
tort law and the duty to pay damages. Of course, a taxonomy that overlooks the very elements
82
Kant, Doctrine of Right, supra note 30 at 6:237.
19
that it must elucidate is either incomplete or inadequate. I believe, however, that this objection
misconceives the Kantian taxonomy. The purpose of the Kantian taxonomy is to elucidate the
unifying basis of private law, the categories that obtain within it, and finally the relation of these
categories to legal instances. In Kant‘s presentation, the relevant categories are rights. That
familiar elements of private law, such as tort law and liability, are not present in the Kantian
taxonomy merely confirms that these elements, however significant, are not rights. Although
these elements are not rights, the illumination of their significance within private law requires
recourse to rights. Within the Kantian taxonomy, tort law and liability arise within an ordered
sequence of juridical concepts at a stage that presupposes private rights. A tort is not a right but
a ―civil wrong, giving rise to a cause of action, independent of contract. It involves a right in the
plaintiff with the corresponding legal duty on the part of the defendant, a breach of duty by the
defendant and damage as a result of that breach.‖83 Although tort law, insofar as it concerns
wrongs, does not explicitly appear within the classification of private rights, the rights that may
be violated through a tortious act are present. The wrongs in tort law consist in the breach of
duties correlative to innate and acquired rights of persons, who have a right to be independent of
the choices of others with respect to their bodily integrity and property. Just as a wrong
presupposes a right that has been violated, so too liability presupposes a wrong. The defendant
commits a wrong by violating the rights of the plaintiff. While wrongs violate rights, they do not
negate the rights of persons to be independent from the choices of others. A wrong subjects the
independence of the plaintiff to the defendant‘s wrongful choice; liability involves the
defendant‘s restoration of the plaintiff‘s independence. The Kantian taxonomy neither treats tort
law and liability as fundamental categories that issue from the unifying basis of private law, nor
as discrete juridical entities that operate in isolation from private rights. Far from overlooking
these crucial elements, the Kantian taxonomy seeks to explain their significance within a unified
account of private law.
V. Hegel’s Classification of Private Law
From the perspective of classification, what is most striking about the schemes offered by
Kant and Hegel is that each originates in the same unifying basis of private law but culminates in
a markedly different classificatory scheme.84 If classification is the self-differentiation of a
unifying basis, then how is it possible that a shared unifying basis can culminate in distinct
classificatory schemes? The purpose of this section is to determine why the legal classifications
of Kant and Hegel diverge. The divergence between the legal classifications of Kant and Hegel
becomes explicit in their respective accounts of property. The source of this divergence lies in a
more fundamental disagreement concerning the nature of classification itself.
The unifying basis of Hegel‘s abstract right is the imperative: ―‗Be a person and respect
others as persons.‘‖85 This unifying basis resembles Kant‘s Ulpian precepts, which require
private actors to assert their own purposiveness in interaction with others while refraining from
83
R.S. Vasan, ed., The Canadian Law Dictionary (Don Mills: Law and Business Publications, 1980) at 381.
In his Introduction to the Philosophy of Right, Hegel seeks to distinguish his conception of right from Kant‘s, but
Hegel‘s remarks are either unfortunately opaque or overly uncharitable to his predecessor. Hegel seems to claim
that Kant conceives of right as a limitation of freedom rather than an expression of it. For a repudiation of this
criticism, see Dudley Knowles, Hegel and the Philosophy of Right (London: Routledge, 2002) at 54.
85
Hegel, Philosophy of Right, supra note 8 at § 36.
84
20
wronging others.86 The similarity of the unifying bases stand in contrast with the distinct
classifications that each thinker derives. For Hegel, all private law relationships involve a
person‘s will and a thing. Thus, Hegel explicitly repudiates Kant‘s conception of contract as a
relation between the will of one person and the will of another—an in personam right—and
claims that even contract concerns an in rem right: ―Objectively considered, a right arising from
a contract is never a right over a person, but only a right over something external to a person or
something which he can alienate, always a right over a thing.‖87 The basis of Hegel‘s
repudiation of in personam rights (and so too his account of contract) lies in his non-relational
account of property. Accordingly, we must consider what leads Hegel to reject Kant‘s relational
account of property.88
In discussing Kant‘s theory of property, I noted that Kant proceeds in two stages. In the
first stage, Kant considers how having rights to external objects of choice is consistent with the
freedom of everyone. In the second, Kant asks how rights to external objects of choice can be
acquired. Note that for Kant these questions are not independent but form a conceptual
sequence. Right determines what is permissible. If having external objects of choice is
permissible, then acquisition must be permissible. The mode of acquisition reflects the right that
is acquired. Since property involves the proprietor‘s right to a thing, the mode of acquisition
must distinguish between the proprietor and all others. Similarly, contract involves the right to
another‘s performance, which must be acquired in a manner that is consistent with the freedom
of promisor and promisee. In contrast, Hegel proceeds in the opposite direction by beginning
with considerations of acquisition and then deriving the nature of the right from the way in which
it is acquired. The result of this structural difference is crucial. Because Kant begins with the
right and proceeds to its acquisition, he conceives of property rights as relational even though
their mode of acquisition is unilateral. In contrast, because Hegel takes the acquisition of the
right to be determinative of its character, the unilateral acquisition of property rights indicates
that they involve the self-relation of an agent‘s freedom rather than the freedom of the proprietor
and all non-proprietors.
The divergence between the conception of property rights at work in Kant and Hegel‘s
legal classifications points to a deeper divergence about classification itself. Classification can
proceed a posteriori or a priori. Both Hegel and Kant reject the adequacy of a posteriori
classification. For Kant, the results of an empirical classification are neither necessary nor
exhaustive.89 Hegel notes the errors that may follow from an empirical classification.90 The
classifier might make erroneous generalizations based on irregular or defective particulars that he
or she encounters and so conclude that a horse has three legs rather than four. In addition, an a
posteriori approach provides no way of determining what aspects of things are essential. For
example, if humans are distinguished from other animals by their capacity for rational thought
and their earlobes, there is no empirical basis on which to determine which of these qualities are
fundamental to the nature of humanity.
86
Kant, Doctrine of Right, supra note 30 at 6:236. Further similarities could be illustrated with respect to the way in
which each philosopher conceives of agency, the free will of agents, and the equality of agents. See Ernest J.
Weinrib, ―Corrective Justice‖ (1992) 77 Iowa L. Rev. 403 at 421-3.
87
Hegel, Philosophy of Right, supra note 8 at § 40.
88
For general accounts of Hegel‘s theory of private law, see Peter Benson, ―Abstract Right and the Possibility of a
Nondistributive Conception of Contract: Hegel and Contemporary Contract Theory‖ (1989) 10 Cardozo L. Rev.
1077 at 1147 ff. and Alan S. Brudner, ―Hegel and the Crisis of Private Law‖ 10 Cardozo L. Rev. (1989) 949.
89
Kant, Doctrine of Right, supra note 30 at 6:284.
90
My comments on Hegelian classification are drawn from Inwood, supra note 8 at 56.
21
Hegel and Kant disagree about the adequacy of a purely a priori approach to
classification. Whereas Kant employed a priori classification, Hegel worried that it might
involve a principle of division that is not essential to the genus to be divided. Thus, instead of
following Kant‘s a priori classificatory method, Hegel attempted to create classifications that
blended a priori and a posteriori considerations. In doing so, Hegel sought to unify the logical
rigor of a priori reasoning with the concreteness of a posteriori observation. That Hegel‘s
classificatory method seeks to blend a priori reasoning with a posteriori observation is evident
from his account of property, which I discuss below.
Given their fundamental disagreement about the nature of classification, it is not
surprising that Kant and Hegel can offer similar conceptions of right and markedly divergent
classifications of it. In proceeding a priori, Kant‘s division of private right provides an
exhaustive account of the juridical relations possible between persons and things. For Kant, ―the
basis of acquisition in right‖ is merely the way in which rights are ―carried out.‖91 For Hegel,
the principle of division must reflect the way in which rights become manifest in experience.
Since private rights are actualized in the world through acquisition, Hegel posits divisions in
abstract right on the basis of acquisition. Thus, the divergence between Kant and Hegel in their
discussion of property has its source in their respective conceptions of the principle of division in
classification. Accordingly, the adequacy of Hegel‘s principle of division within his legal
classification can be considered by reflecting on his account of property.
For Hegel, property ownership involves the ―freedom of a single person related only to
himself.‖92 Such a conception of property raises a question about why non-proprietors—who are
not implicated by the proprietor‘s self-relationship—must refrain from using another‘s property
in pursuit of their own purposes. Put more generally, the question asks, how can unilateral
acquisition put all others under an obligation? I call this problem Hegel‘s dilemma.
In ―Philosophy of Property Law,‖ Professor Peter Benson responds to this problem by
distinguishing between rights correlative to duties, on one hand, and rights correlative to
disabilities, on the other. For Benson, property involves a right that is correlative to the
disability of all others.93 A property right entitles the proprietor to determine the purposes to
which the property is put and to exclude all others from doing so. 94 In turn, the disability
consists in all others being unable to make the thing their own or subject it to their purposes
through their own unilateral action. By using the term disability, Benson seeks to differentiate
property from legal relationships that involve a right that is correlative to a duty. A duty places
one or more persons under an obligation to commit or refrain from committing a specified act.
For Benson, as for Hegel, that another has property does not require or prohibit action of nonowners. Rather, the disability simply denies that the unilateral acts of non-owners can generate a
legal right with respect to a specific thing.95 Since property relates persons to things but does not
relate persons to persons, a property right does not impose a duty on non-owners of a particular
thing to respect others. Property rights merely subtract from the objects on which non-owners
can exercise their purposiveness with the juridical effect of producing a proprietary right.
91
Kant, Doctrine of Right, supra note 30 at 6:260.
Hegel, Philosophy of Right, supra note 8 at § 40.
93
Peter Benson, ―Philosophy of Property Law‖ in Jules Coleman & Scott Shapiro, eds., The Oxford Handbook of
Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2002) 752 at 765.
94
Ibid.
95
Ibid. at 766.
92
22
The weight of the property right, however, collapses Benson‘s distinction between
disability and duty. Benson holds that when a property right is correlative to a disability there is
―strictly speaking no act required or prohibited but simply a denial of right-producing character
to the unilateral actions of non-proprietors.‖96 This suggests that interference with a property
right will not itself generate a property right. If I take your horse for a ride without your
permission, I do not thereby acquire it. Such a view is not problematic, and I do not pursue it
further. The view that a property right is correlative to a disability suggests merely that unilateral
action on another‘s property does not give rise to a property right. But if a disability is
correlative to a property right, it must involve more. For Benson, the essence of a property right
is the entitlement of the owner to exclude the use of all others.97 If the right entails exclusivity,
then whatever is correlative to the right must reflect this exclusivity. Accordingly, it must be the
case that non-owners cannot acquire a right to a thing possessed by another through their
unilateral actions, and it must also be the case that they must not act on another‘s property
because doing so would be inconsistent with the owner‘s exclusive right to use the thing. Thus,
when I take your horse for a ride without your permission, your right to the horse entails that I
cannot acquire it and that I have wronged you by using something that is yours. This stronger
conclusion about the character of the disability coheres to the property right to which it is
correlative, but this coherence comes at the expense of the distinction that Benson draws
between disabilities and duties. The correlate of a right that entails exclusivity must require nonowners to refrain from actions that would interfere with the right of the owner. The consequence
is a dilemma. On the one hand, Hegel‘s account of property must involve a relation between
persons that culminates in the duty of non-proprietors. On the other, Hegel‘s non-relational
conception of property denies that such a duty obtains.
The structure of Hegel‘s theory precludes an easy solution to this dilemma. Since
Hegel‘s juridical world consists of persons and things, one could respond to the dilemma on
Hegel‘s behalf in one of two ways. Personality is either limited by a thing, which lacks
personality, or by another person. The first of these possibilities is inconsistent with Hegel‘s
conception of abstract right, while the second is inconsistent with his conception of property, on
which the subsequent divisions in Hegel‘s scheme rest.
If the source of the duty correlative to a property right is imposed on the non-owner by a
thing that belongs to an owner, then Hegel offers what Kant derisively termed a ―guardian
spirit‖ theory of property.98 On this view, the right of the owner to possession and exclusive use
of the thing is correlative to the thing‘s duty to resist being acquired and used by non-proprietors.
A guardian spirit theory of property is incompatible with Hegel‘s conception of the distinction
between persons and things: persons have the capacity for rights;99 things are ―not free, not
personal, without rights.‖100 Conceiving of persons as under obligations to things involves
reversing the normative polarity of the distinction between persons and things. If things can
impose duties on persons, then things must be independent and persons dependent upon them.101
96
Ibid. at 766 and 768.
Ibid. at 768.
98
Kant, Doctrine of Right, supra note 30 at 6:260.
99
Hegel, Philosophy of Right, supra note 8 at § 36.
100
Ibid. at § 42. Benson, supra note 93 at 805: ―Things do not possess legal personality and standing—they cannot
have rights or duties and they are not sources of valid claims against others.‖
101
Benson, supra note 93 at 770 (my emphasis): ―This right to alienate is exclusive in the sense that others are under
the correlative disability of no longer having the legal power to make the thing ownerless; they can unilaterally do
nothing that restores the thing’s independence, thereby divesting the right-holder of rightful possession.‖
97
23
To suppose that things impose a duty on persons to refrain from using them when they have been
acquired by another, is to conceive of what is sacrosanct—the freedom of persons—as
determined by what lacks personality. Since the unifying basis and single imperative of abstract
right is to be a person and respect the personality of others, 102 to restrict the freedom of persons
for the sake of what lacks personality would create a conflict between abstract right and the right
to property that emerges from it. Thus, Hegel cannot escape the dilemma by subordinating the
freedom of persons to the passivity of things.
In turn, if personality is limited not by things but by other persons, then property cannot
be conceived of as merely the self-relation of one individual‘s freedom. Since the scope of the
property right entails the imposition of a duty on all others, Hegel must explain how a unilateral
act that places all others under an obligation is consistent with freedom. Hegel cannot provide
such an argument as long as property is conceived of as the self-relation of the freedom of the
proprietor. The dilemma therefore remains.
Nor can Hegel‘s dilemma be resolved by pointing to the publicity of the act of
acquisition.103 The publicity requirement indicates that the unilateral act must be knowable by
those under a duty with respect to it. Accordingly, those who are under an obligation can modify
their conduct with respect to another‘s right. That the act of acquisition must be public to others
specifies the way in which the right is acquired, but does not explain how the acquisition of the
right itself is consistent with freedom of persons placed under an obligation as a result of the
proprietor‘s unilateral act. The publicity of acquisition does not justify the rightfulness of
acquisition; the awareness of another‘s act does not culminate in a duty incumbent on the
observer. If public acquisition puts all others under a duty with respect to it, Hegel must provide
a norm that relates the freedom of a proprietor to the freedom of all non-proprietors.
Moreover, Hegel‘s dilemma cannot be resolved by claiming that property is implicitly
relational or that property is made explicitly relational by contract. Hegel‘s conception of
property cannot be implicitly relational because it is explicitly non-relational. For Hegel,
property ownership consists in ―the freedom of a single person related only to himself.‖104
Underlying these remarks about Hegel‘s account of property is a fundamental problem
with Hegel‘s legal classification. Hegel attempts to derive private rights from the nature of their
acquisition.105 The adequacy of such a strategy depends on the presence of a systematic
connection between the mode of acquisition and the normativity of the right. Property reveals
that such a systematic connection is absent: a property right can be acquired unilaterally, but the
right is relational insofar as it entails the exclusion of others from the object of acquisition. The
unilateral character of the acquisition prompts Hegel to overlook the relational aspects of one‘s
acquisition for all others. In doing so, he fails to address a seminal question for any juridical
account of property: How can unilateral acts put all others under an obligation? Hegel‘s
102
Hegel, Philosophy of Right, supra note 8 at § 36.
Benson, supra note 93 at 770: ―The immediate correlative of the right to use is that others are placed under a
legal disability: they cannot unilaterally do anything that represents a rightful use of the thing or that causes the first
occupant to lose his or her right to use it. And this legal disability can be imposed upon others in general because
the act that establishes the property is public in the requisite way.‖ See also at 777-8:“…given that my mode of
appropriating the thing is public vis-à-vis everyone, the one who is placed under the correlative disability counts as
anyone in general…‖
104
Hegel, Philosophy of Right, supra note 8 at § 40.
105
Benson, supra note 93 at 766: ―The right-disability relation is definitive of first occupancy. The sole question is
one of acquisition, that is, whether someone, through his or her unilateral act, has or has not acquired exclusive
property in something.‖
103
24
dilemma cannot be answered by denying the obligation, emphasizing the public nature of the
unilateral act, or imposing the norm from an external standpoint.
In taking the mode of acquisition to be determinative of the character of the acquired
right, the unilateral acquisition of property leads Hegel to posit a non-relational category. The
result is a tension between the unifying basis of his classification—the imperative to be a person
and respect the personality of others—and the conception of property to which it gives rise.
Hegel therefore creates a classificatory error by positing a relational unifying basis that includes
a non-relational category. In this respect, the legal classifications of Aristotle and Hegel share
the same incoherence.
Given the systematic character of Hegel‘s legal classification, the implications of the
dilemma are not confined to his account of property. Hegel‘s discussion of contract, for
example, presupposes the adequacy of his conception of property. Property rights are juridical
manifestations of the acquisition of things. Through contract, the ownership of things that
parties have previously acquired can be transferred. If Hegel‘s account of property acquisition is
unsuccessful, then there is no conceptual basis on which to discuss the transfer of property that
arises in contract.
CONCLUSION
Classification is the philosophic enterprise that illuminates the shared intelligibility of
genus and instance. The coherence of a classificatory framework lies in the harmony of these
elements. If law is coherent, then it can be classified. Waddams‘ skepticism of classification
culminates in his claim that law is coherent but cannot be classified. Ultimately, Waddams‘
skepticism about legal classification must itself come into doubt because it is rooted in
assumptions that the classifier need not share.
Contemporary corrective justice theorists often express neutrality between the legal
theories of Aristotle, Hegel and Kant.106 After all, if each thinker conceives of private law as
involving the external relations between free and equal agents, then each must appreciate the
juridical norms apposite to their interaction. If the argument in this essay is correct, then this
neutrality overlooks the significance of the principle of division at work in each legal theory.
Although Aristotle, Kant and Hegel each conceive of the unifying basis of private law as
involving equality in the relations between free persons, both Aristotle and Hegel proceed to
generate non-relational juridical categories that are at odds with the relational structure of
corrective justice that unifies their theories. The result is an incoherent classificatory framework
that is at variance with the unity of that which is classified. Among this family of thinkers, Kant
alone derives a thoroughly relational classification of juridical norms from the unifying basis that
he posits. This distinction does not merely exhibit the coherence and enduring significance of
Kant‘s classification of private rights. It also reveals that Kant is the sole corrective justice
philosopher.
Ernest J. Weinrib, ―Corrective Justice‖, supra note 86 at 424: ―Aristotle‘s corrective justice, Kant‘s concept of
right, and Hegel‘s abstract right all refer—though in different terms—to the same bipolar structure of a correlative
doing and suffering. Aristotle expresses this correlativity as a gain realized by the doer at the expense of the
sufferer. Kant and Hegel, on the other hand, relate the immediate interaction of doer and sufferer to the juridical
structure of right and correlative duty. In natural right theory, the embodiment of the abstract will in one‘s body and
property creates rights that other agents are under a duty to respect. The duty is owed specifically to the holder of
the right, and the violation of that duty entitles the holder of the right to a legal remedy.‖ See especially Ernest J.
Weinrib‘s ―Right and Advantage in Private Law‖ (1989) 10 Cardozo L. Rev. 1283 at 1308.
106
25