Abstract
It is a recurring idea in the history of political philosophy that concepts and doctrines of private law are illuminative of public law and political philosophy. Central among these are contract (especially) and the trust. In this paper, I consider the prospects of a third: estoppel. The public law context in which estoppel is most commonly invoked is criminal law, and there especially in the service of understanding the defenses of entrapment and what I call officially induced mistake of law (OIML). My question is how well it serves this role – how well the structure of the self-disentitlement that provides the rationales for the defences of entrapment and OIML on the non-exculpatory approach to each is articulated on the model of state estoppel, as I call it. I will argue that it fares well, and so that estoppel merits inclusion on the list of concepts and doctrines of private law that are illuminative of public law and political philosophy. In conclusion I will ask what the moral-expressive content of its deployment in that context is, and argue that, while the doctrines of contract and trust work as means to articulate claims about the basis and limit of political authority, the claim that some cases of state self-disentitlement can be modelled on estoppel represents a commitment to some core principles of the rule of law.
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Notes
For estoppel in a public but not criminal law context see, for example, Mayo Moran, ‘Time, Place, and Values: Mack and the Influence of the Charter on Private Law,’ in David Dyzenhaus and Mayo Moran (eds.), Calling Power to Account: Law, Reparations, and the Chinese Canadian Head Tax Case (Toronto: University of Toronto Press, 2005), p. 378.
But not exclusively: see, for example, Arthur Ripstein, ‘Self-Defense and Equal Protection,’ University of Pennsylvania Law Review 57 (1996), p. 685, for an argument that certain cases of self-defense exhibit a structure akin to estoppel.
See, for example, Glanville Williams, Criminal Law: The General Part, 2nd ed. (London: Stevens, 1961), pp. 782, 785, Paul Robinson and Michael T. Cahill, Criminal Law, 2nd ed. (New York: Wolters Kluwer, 2012), p. 435, Anthony Duff, Answering for Crime (Oxford: Hart, 2009), pp. 183–84, and the majority opinion in the leading US entrapment case Sorrells v. United States, 287 US 578 (1932).
See, for example, Andrew Ashworth, ‘Testing Fidelity to Legal Values: Official Involvement in Criminal Justice,’ Modern Law Review 63 (2000), p. 640, Robinson and Cahill, supra note 3, at p. 395, and Duff, supra note 3, at pp. 183–84. The defence was first recognized by the US Supreme Court in Raley v. State of Ohio, 360 U.S. 423 (1959), and later acquired the name ‘entrapment by estoppel,’ at least by U.S. v. Heieh Hui Mei Chen 754 F.2d 817 (9th Cir. 1985).
Sorrells, supra note 3, at p. 212.
Or at least for the most part. The argument of the majority in Sorrells seeks to assimilate the two. I don’t believe it succeeds (or, indeed, could succeed). See below, at pp. 19–20.
I think that’s fairly said of the use to which Robinson and Cahill put estoppel in their treatments of entrapment and OIML, supra notes 3 and 4. On their account, estoppel prevents a particular kind of unfairness, exhibited when the government prosecutes violations of laws it failed to publicize or mislead the defendant about (ibid. at 395) or induces an offence only to then prosecute it (ibid. at 435). Fair enough. But, as we will see, the details matter, for two reasons. First, they elucidate the sort of unfairness with which estoppel is particularly concerned. And second, in light of the details, we will see that important differences between entrapment and OIML are brought into relief.
I have in mind here Anthony Duff. On Duff’s account, the main effect of estoppel is to make enforceable otherwise unenforceable promises. This suggests a compelling account of OIML: the official (though, it turns out, misleading) advice is akin to a promise to the defendant that she will not be prosecuted if she follows it (supra note 3, at p. 184). But, though in some cases a successful appeal to estoppel in effect renders a promise enforceable, if we cast estoppel as a doctrine of promise-keeping we will miss what make it distinct. Or so I argue below, at pp. 11–12.
For an overview of the history see Elizabeth Cooke, The Modern Law of Estoppel (Oxford: OUP, 2000), pp. 6–53, for a conceptual disentangling of present-day law (set in the UK context but illuminating outside of it) see Ben McFarlane, ‘Understanding Equitable Estoppel: From Metaphors to Better Laws,’ Current Legal Problems 66 (2013), pp. 267–305, and for a survey of some key jurisdictional differences see Susan M Morgan, ‘A Conceptual Analysis of the Doctrine of Promissory Estoppel in Australia, Great Britain and the United States,’ Melbourne University Law Review 15 (1985), pp. 134–54.
Peter Birks, Unjust Enrichment 2nd ed. (Oxford: Clarendon Press, 2005), p. 3.
See, for example, Ben McFarlane, ‘Unjust Enrichment, Rights and Value’ in Donal Nolan and Andrew Robertson (eds.), Rights and Private Law (Oxford: Hart Publishing, 2012), pp. 581–608 and Lionel Smith, ‘Restitution: A New Start?,’ ch. 5 in P. Devonshire and R. Havelock, eds., The Impact of Equity and Restitution in Commerce (Oxford: Hart Publishing, 2018), pp. 91–117.
With the (friendly, I believe, and I believe merely terminological) amendment to Birks’s measure that I’ll cast it as the search for cases materially equivalent rather than materially identical to the core case. I think material equivalence rather than material identity better captures the relation Birks sought to trace.
The only exception I can think of is Ben McFarlane. See below.
(1837) 6 AD & E 469, p. 474; 112 ER 179, p. 181.
(1762) 1 Black W. 363, p. 364.
McFarlane, supra note 9, at p. 271.
(1877) 2 App Cas 439.
Ibid. at 448.
This, or rather, more precisely, the fact that the principle can apply to beliefs about how that estopped party will behave in the future rather than about facts in the present, is one of two bases on which McFarlane denies that it is a principle of estoppel. McFarlane, supra note 9, at pp. 281-3. I explain why I think that’s unpersuasive immediately below. The second basis is that, on his reading, the language of the opinions suggests that what the court sought to do was prevent the injustice of the benefits that would accrue to the landlord from the forfeiture, and so, as a consequence, that the tenants’ detrimental reliance was immaterial. I’m not persuaded that is how the case must be read. All the Lords agreed that Hughes did not intend to be deceptive. So it seems to me that one could only find that allowing the forfeiture ‘would be inequitable having regard to the dealings which have thus take place between the parties’ if as a result of those dealings the tenants changed their position in a way that would set them back were the right exercised. In any case, it is on that interpretation that I mean the principle in Hughes to be understood here.
I’m borrowing, with this locution, from Ernie Weinrib’s illuminating reconstruction of an important but obscure passage from Aristotle’s account of corrective justice in Nicomachean Ethics 5.4, 1132a7-10. See Ernest J Weinrib, Corrective Justice (Oxford: Oxford University Press, 2012), p. 17.
An anonymous reviewer drew my attention to the fact that there is a question, as point of doctrine, whether estoppel involves a wrong in the technical sense of a breach of a legal duty. Andrew Robertson has argued that it need not. It need not because, under certain circumstances, the law grants a beneficial interest in property to a party, A, who has relied to her detriment (for example, by improving that property) on representations by the title holder, B, that B will, for example, leave that property to A in his will before (or without) B’s attempting to retract that representation—and so before committing a wrong. See Andrew Robertson, ‘Estoppels and Right-Creating Events: Beyond Wrongs and Promises,’ in Jason W. Neyers, Richard Bronaugh and Stephen G A Pitel (eds.), Exploring Contract Law (Oxford and Portland: Hart Publishing, 2009), pp. 203–07. This is an important and interesting point. But it can be set aside here. The doctrine at work here is what is called proprietary estoppel, under which estoppel serves to create and not just suspend the exercise of rights. For reasons I give below, I will use estoppel only in its narrower, right-suspending sense.
[1947] KB 130, p. 136.
The Restatement follows this line in limited circumstances: §90(2) provides that ‘A charitable subscription or a marriage settlement is binding under Subsection (1) without proof that the promise induced action or forbearance.’
One might object: The Restatement and High Trees principles do protect persons from vulnerability-inducing breaches of integrity precisely by establishing conditions under which private arrangements are enforceable through law. But that just subsumes all of contract under estoppel (and I assume that’s a sign we’ve gone off track).
Gary Watt, Equity Stirring (Oxford: Hart, 2009) p. 67.
Christopher St. German, Doctor and Student, T.F.T. Plucknett and J.L. Barton eds. (London: Seldon Society, 1974), pp. 116–117.
1 Chan Rep 1, at 6; 121 ER 485 at p. 486. Ellesmere does not credit Aristotle but there is a fairly clear, though doubly indirect, link. The first step is that Lord Ellesmere explicitly drew elsewhere in his judgment on Doctor and Student. St. German, in turn, obviously drew on Aristotle, but he too did not credit him. It turns out he got his Aristotle indirectly, from Jean Gerson. See Paul Vinogradoff, ‘Reason and Conscience in Sixteenth-Century Jurisprudence,’ Law Quarterly Review 46 (1908), pp. 374–75.
Aristotle, Nicomachean Ethics, trans Ross and Urmson, in Jonathan Barnes (ed.), The Complete Works of Aristotle v. 2 (Princeton: Princeton University Press, 1984), p. 1796 (5.10, 1137b32).
Ibid., at p. 1176 (v.10, 1137b35).
Or so it seems to me. This is an easy case; there will be difficult ones. And sometimes morality requires us to be sticklers for our rights. ‘Do not let others tread with impunity on your rights’ says Kant, in a list of injunctions issuing from the duty to treat oneself with respect. Immanuel Kant, The Metaphysics of Morals M. Gregor ed. (Cambridge: CUP, 1996), p. 188. What matters here is the structure of an equitable claim on Aristotle’s account. I will have to rest on what I hope is a shared set of intuitions about the substantive principle that animates it by sorting cases when one is a stickler in a bad way from those in which the duty of self-respect requires one to insist on one’s rights. I defend the interpretation of Aristotle sketched here and the claim that estoppel is equitable in the sense it articulates in ‘Aristotle at the Foundations of the Law of Equity’ in Dennis Klimchuk, Irit Samet and Dennis Klimchuk (eds.), Philosophical Foundations of the Law of Equity (Oxford: Oxford University Press, forthcoming).
243 U.S. 389 (1917).
Id. at 391.
The House of Lords makes a similar argument in R v East Sussex County Council, ex p Reprotech [2002] UKHL 8: Unlike in the private law context, ‘remedies against public authorities also have to take into account the interests of the general public which the authority exists to promote.’
And judges sometimes align themselves with it: ‘Society is at war with the criminal classes’ says Justice Owen Roberts in a concurring judgment in Sorrells, supra note 3, at p. 217.
467 U.S. 51 (1984).
Ibid. at 60.
For the purposes of this discussion I’ll take the distinction between providing an opportunity to commit a crime and inducing its commission to be tolerably clear, acknowledging that there will be tricky cases. For a very helpful discussion of the conceptual steps between discovering and creating crime see Gerald Dworkin, ‘The Serpent Beguiled Me and I Did Eat: Entrapment and the Creation of Crime,’ Law and Philosophy 4 (1985), pp. 24–30.
Supra note 3.
As we saw above, text at n. 5.
Sorrells, supra note 3, at pp. 441–42.
Newman v. United States 299 F. 128 (4th Cir. 1924).
Supra note 3, at p. 448.
If this sounds mysterious, just recall that nothing needs to be done the following month for the landlord to uphold the right.
You might argue that, strictly speaking, her guilt is neither conceded nor denied: it simply isn’t as issue. And that’s right, to a point. But I don’t believe we can say that one was ‘entrapped’ into doing something that isn’t wrongful, and in any case the argument would only ever be made if wrongful conduct was at issue.
Sorrells, supra note 3, at p. 455.
The disagreement between the majority and concurrence was thus in part a disagreement over what respect for the separation of powers requires. ‘Clemency,’ Chief Justice Hughes argued, ‘is the function of the Executive’ (supra note 3 at p. 449). Thus the only way a court can recognize the entrapped defendant’s defense is under a plea of not guilty, on the grounds that a successful defense of entrapment shows that conduct of government agents takes the case out of the purview of the statute.
Dworkin, supra note 37, at p. 32.
State v. Ferguson, 24 P.2d 965 (Cal. App. 1933).
Ibid. at 970.
360 U.S. 423 (1959).
Ibid. at 438.
379 U.S. 559 (1965).
State v. Guzman, 968 P.2d 194, 207 (1998); see too U.S. v. Tallmadge, 829 F.2d 767, 773–74 (9th Cir. 1987).
Supra note 50, at p. 438.
Tallmadge supra note 53, at p. 773.
United States v. Brady, 710 F.Supp. 290, 296, 297 (1987). See too Miller v. Virginia 492 S.E.2d. 482, 488 (1997).
On this ground Peter Barton rejects the estoppel account of officially induced error of law: Peter Barton, ‘Officially Induced Error as a Criminal Defense: A Preliminary Look,’ Criminal Law Quarterly 22 (1980), pp. 329–331 and Glanville Williams argues that estoppel in the strict sense is not at work here (Williams, supra note 3 at p. 785), preferring to say that in cases of officially induced error of law the state is ‘quasi-estopped’ (id., 782).
Jones v. State, 25 S.W. 124 (1894).
Tallmadge, supra note 53.
Supra note 52, at p. 568.
For: Brady, supra note 56; against: U.S v. Bruscantini 761 F.2d. 640 (11th Cir. 1985).
Though, again, in different ways in each case.
One might object that the expressive content of a stay of proceedings is morally equivocal. The defendant in an entrapment case knowingly broke the law, whereas cases of OIML often involve defendants who went out of their way to determine what the law required of them. In the former, the stay really is a kind of letting off the hook; in the latter, it is rather more like a retroactive withdrawal of the charges under which the defendant was brought to court. I don’t think this is an objection so much as an inescapable feature of the remedy. And it is worth noting that acquittals are no less expressively equivocal, especially but not only if we consider the phenomenon of jury nullification and the variety of motives that may operate through it (some laudable, others not).
The egalitarian foundation of social contract theory is clear in all its classic formulations, from Grotius to Kant, but is most explicit in Rousseau, who argues that because might does not make right and no one is naturally subject to another’s authority, political authority must rest on a convention, which convention he styles as a contract. See Jean-Jacques Rousseau, On the Social Contract, trans. Donald A. Cress (Indianapolis: Hackett, 1987), pp. 18–20.
Most explicit in Locke, Two Treatises of Government Laslett ed. (Cambridge: Cambridge UP, 1988), p. 367, but arguably implicit in Hobbes as well: see Evan Fox-Decent, ‘Hobbes’s Relational Theory: Beneath Power and Consent’ in David Dyzenhaus and Thomas Poole (eds.), Hobbes and the Law (Cambridge: CUP, 2012), pp. 118–44.
It might seem that there is a tension between my claim, above, that there is something equitable about the structure of estoppel and the association I claim between state estoppel and the rule of law. I think, however, that there is reason to question the received view that equity is at odds with the rule of law. See my ‘Equity and the Rule of Law’ in Lisa Austin and Dennis Klimchuk (eds.), Private Law and the Rule of Law (Oxford: Oxford University Press, 2014), 247–68, Henry Smith, ‘Property, Equity and the Rule of Law,’ in Austin and Klimchuk (eds.), pp. 224–46, and Matthew Harding, ‘Equity and the Rule of Law,’ Law Quarterly Review 132 (2016), pp. 278–302.
Timothy Endicott, ‘The Impossibility of the Rule of Law,’ Oxford Journal of Legal Studies 19 (1999) 1, 2.
Endicott distinguishes four ways a government might be said to act arbitrarily in ibid. at 3; for consideration of the senses in which private law might suffer from arbitrariness see Gerald J Postema, ‘Fidelity in Law’s Commonwealth,’ in Austin and Klimchuk (eds.), Private Law and the Rule of Law, pp. 17–40 and William Lucy, ‘The Rule of Law and Private Law,’ in Austin and Klimchuk (eds.), pp. 41–66.
Locke, supra note 65, at pp. 361–2 (2.11.139).
Ibid. at 76 (2.12.143).
Ibid. at 75 (2.11.142).
If this is right, then the recognition of OIML is a chapter in an old and on-going debate. Against the line eventually defended by Locke, Hobbes had earlier argued that, at least at one level, legality requires the unity of sovereignty. For example, only if the judiciary were understood to be agents of the what is ultimately the same institution as that which, in another capacity, exercised legislative authority, could citizens be assured that it was the latter’s laws to which they were subject. Thomas Hobbes, Dialogue Between a Philosopher and a Student of the Common Laws of England J. Cropsey ed. (Chicago: University of Chicago Press, 1971), p. 28.
Thanks very much to Alan Brudner, Gillian Demeyere, Arthur Ripstein, and the participants in the 2014 meeting of the Private Law Theory Workshop at Western University and the 2014 meeting of the Analytic Legal Philosophy Conference at the University of Oxford for very helpful comments and questions on earlier drafts of this paper. I am particularly indebted to Larry Alexander, Lisa Austin, Michelle Dempsey, William Edmundson, Chris Essert, Doug Husak, Larissa Katz, Sari Kisilevsky, Denise Reaume, Irit Samet, Frederick Schauer, Stephen Smith, Jeremy Waldron, and Ben Zipursky. A more recent draft was presented at a meeting of the Harvard Law and Philosophy Colloquium, at which John Goldberg and Tim Scanlon made comments and discussed the paper at length. I’m very grateful to them and the participants for their generous help. Finally, I am indebted to two anonymous referees for their very insightful comments.
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Klimchuk, D. State Estoppel. Law and Philos 39, 297–323 (2020). https://doi.org/10.1007/s10982-019-09372-4
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DOI: https://doi.org/10.1007/s10982-019-09372-4