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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