Avihay Dorfman

This article addresses a basic question of general jurisprudence, namely, what difference law makes in moral space. It argues that the difference at issue does not necessarily come to telling us what morality (or justice) might dictate but rather to establishing a way of attributing decisions to all of us and not to any one of us in particular. This also means that law’s distinctive moral virtue is not justice but legitimacy. What renders this possible is the emergence of public officials whose value lies in being public officials. In that, the article defends the standing conception of law, according to which law’s most basic moral contribution is that of establishing an entity whose normative pronouncements could count as made in the name of (or even by) the polity.

In “Just relationships” (116 Colum. L. Rev. 1395 (2016)), we developed a novel theory of private law for a liberal legal order. We argued that private law assumes the moral responsibility to determine just terms of interactions among private persons. Its most basic organizing ideas are substantive freedom and equality. Professors John Gardner, Robin West, and Benjamin Zipursky offer fascinating comments on our theory. Their rigorous engagement with our work and the penetrating insights they each develop provide an excellent opportunity for us to pose and reflect on some of the basic questions that arise in connection with the theoretical study of private law. This short response is organized around three issues: the normative status of private law, the private-law/public-law distinction, and interpretation and social criticism. It focuses on these issues because they reflect key areas of disagreement between our commentators and our account of private law. Elaborating them can help ...

This article addresses a basic question of general jurisprudence, namely, what difference law makes in moral space. It argues that the difference at issue does not necessarily come to telling us what morality (or justice) might dictate but rather to establishing a way of attributing decisions to all of us and not to any one of us in particular. This also means that law’s distinctive moral virtue is not justice but legitimacy. What renders this possible is the emergence of public officials whose value lies in being public officials. In that, the article defends the standing conception of law, according to which law’s most basic moral contribution is that of establishing an entity whose normative pronouncements could count as made in the name of (or even by) the citizens.

Contemporary discussions of private law theory often assume that parties in a private law interaction can relate as equals if, and only if, equality is cast in terms of formal equality (sometimes called transactional equality). I devote these pages to refute this conceptual view, showing that it does not draw correctly the map of the logical space in which conceptions of private law equality are located. Negatively, I argue that the formal conception of equality, most comprehensively defended by certain influential corrective justice theories, does not exhaust this space. Affirmatively, I argue that this space provides room for at least one more conception which I call ‘substantive equality’.

In these pages, I seek to advance two arguments, a negative and a positive. The negative one is that leading accounts of foreseeability in duty-of-care-analysis fail to make sense of the requirement in question. And affirmatively, I shall argue that the foreseeability requirement reflects a concern for the distinctively social form of interaction between risk-creator and risk-taker, namely, that the former could form a respectful interaction with the latter. This reconstruction of the foreseeability requirement may express the view that its moral center may be a thin form of recognition between members of a liberal society.

The most powerful response to growing skepticism about the intelligibility of the idea of private ownership has been cast in terms of an owner's rights to the exclusive use of an object. In these pages, I argue that this response suffers from three basic deficiencies—rather than merely explanatory gaps—that render it unable to overcome the specter of skepticism. These deficiencies reflect a shared want of attention to the normative relationship that ownership engenders between owners and nonowners. In place of the right to exclusive use, I set out to develop an account of private ownership that seeks to defeat skepticism concerning this idea. The proposed account insists that the idea of private ownership picks out a special authority relation between an owner and a nonowner involving the normative standing of the latter in relation to an object owned by the former. I further demonstrate the important place of this idea in shaping the contours of normative disagreements about th...

In this article, I seek to reclaim for property theory the legitimation concern that is the kernel of the principle of numerus clausus (which is a restriction that means that it cannot be up to private persons to create new forms of property right, but only to trade rights that take existing forms). I advance two general claims. First, functional accounts of this principle cannot but fail adequately to explain it. Second, the numerus clausus can be cast into sharp relief by elaborating the legitimation question that captures its moral centre – that is, a concern about how political authority is possible in the context of legislating new forms of property right. I insist, in this regard, that the conception of political legitimation that characterizes the creation of novel forms of property right is that of democratic self-governance.

According to the established orthodoxy, the law of private wrongs— especially common law torts—fails to map onto our moral universe. Four objections in particular have caught the imagination of skeptics about the moral foundations of tort law: They purport to cast doubt over the moral appeal of the duty of care element; they target the seemingly inegalitarian objective standard of care; they object to the morally arbitrary elements of factual causation and harm; and they complain about the unnecessary extension of liability under the guise of the proximate cause element. Analyzing these four prevailing arguments concerning the amoral (and, with regard to some interpretations, anti-moral) character of tort law, I shall seek to show that the normative structure of tort law can, nonetheless, be reconstructed so as to reflect, to an important extent, our considered judgments about basic moral principles.

A tort remedy, as the conventional wisdom has it, might serve any number of masters (ranging from justice to economic efficiency) by vindicating the status quo ante the tort.  I shall argue that this view forces one to accept the proposition that the duty to restore the victim to the status quo ante the wrong done her represents a contingency—that is, one among different permissible extensions of the core of the remedial regime animating tort law.  Anything outside the core of the remedial regime of tort law, which is the victim’s entitlement to have her rights vindicated by a court of law, is fundamentally a matter of legal engineering; designing the best overall institution to resolve infringements of rights and their lasting, material consequences.  In these pages, I shall develop a novel account of this remedy, maintaining that, apart from the contingent services it may render whatever masters are deemed appropriate, the remedial process in tort law is in itself a source of value.  The connection that this process establishes between tortfeasors and victims generates a special form of attending to other persons as such—that is, as free and equal agents.  The tort remedy, on this account, expresses the intrinsically social character of a legal practice (of torts) grounded in a liberal vision of coexisting with others in the world.  It re-establishes and, therefore, engenders a valuable relationship of respectful recognition—a form of a thin solidarity—between parties in a tort dispute.
      The account that I shall articulate does not only provide a more sympathetic interpretation of the essential core of tort law and remedy than the one implicit in the conventional view and in the various approaches that dominate contemporary theoretical discourse.  Rather, it also aspires to illuminate important questions in positive tort law and remedy.  Pursuing this task piecemeal, I shall deploy the ideal of re-establishing respectful recognition through the tort remedy in the service of explaining the mysterious category of punitive damages.  Accordingly, I shall show that, in taking the form of private law, this category can make sense insofar as it is viewed as a conceptually plausible extension of the proposed ideal.

I argue that the grounds and content of the trustee’s fiduciary obligations are, at least in part, the upshot of the special difficulty that the trust institution picks out, namely, what I shall call the excesses of ownership.  On this argument, the institution of trust arises in connection with the difficulty of acquiring the standing of ownership, which is a status authority over anyone else with respect to an external object.  A Trustee makes possible—that is, creates the legal space for—a derivative status of ownership: That which allows patients (by choice or by chance) to enjoy access to the institution of ownership but, at the same time, to do without the agential powers characteristic of the standing that ownership involves.  The duty of loyalty, I shall argue, arises against this backdrop, tracking the role of the trustee in possessing, and sometimes even constituting, the personhood of the beneficiary and thus acting as his alter ego, as it were, in relation to the trust property.  In that, the duty of loyalty is consequential to the transubstantiation of the trustee into the bearer of what I shall call the ownership personality of the beneficiary.

Contemporary discussions of private law theory have sought to divine the deep structure and content of private law by reference to two key distinctions. First, the distinction between private and criminal law has been utilized to flesh out the distinctively bipolar structure of private law (and its various departments, namely, property, contract, torts, and unjust enrichment). Second, the distinction between formal and distributive equality has served to highlight the special terms of interaction established in private law. In these pages, I take up the former distinction, arguing that its theoretical significance is overdrawn. I argue that it does not succeed in identifying private law's precise nature.

The basic question that arises in connection with the distinction between property and contract is, what accounts for the general scope that property rights and duties, unlike their contractual counterparts, share? The most typical theoretical approach to this question has so far been to emphasize certain extrinsic circumstances, such as transaction costs or the normative priority of protecting property over contract rights. But the problem with this approach is that it implies that the source of the difference (whatever it is) does not originate in either property or contract but rather lies outside both (for instance, in the costs of making and carrying out transactions concerning external objects). In that, it fails to consider whether the general scope of property rights and duties is, in fact, a side effect of the special structure of property (vis-à-vis contract). On the account I shall develop, property is a framework of coordination in which participants approach the resolution of their competing claims (such as for use of and access to an object) together. In this way, property turns coordination itself into a form of respectful recognition among persons, quite apart from the functions it occasionally serves (such as promoting efficiency or sustaining freedom). This formal way of distinguishing between property and contract lies at the centre of the characterization of the rights and the duties in question that I shall pursue in these pages. Moreover, and perhaps more dramatically, this characterization provides the necessary normative resources to elaborate on their normativity: I shall argue that property, unlike contract, expresses the categorical value of regarding others as free and equal persons (at least, in the sphere of action onto which property maps).

The most compelling defense of the standard of reasonable care in negligence law casts itself in terms of equality. This commitment to equality may paradoxically turn out to be flatly inegalitarian. This is because it discriminates against the less capable through ignoring their deficient capabilities (and so against their chances of meeting the standard of reasonable care successfully). A promising, though still unfamiliar, way to revive the egalitarian aspirations of reasonable care would be to show that imposing the standard of reasonable care even on the less competent expresses, rather than inhibits, a true devotion to equality. I seek to make this showing, and thus to reclaim for this standard of care its egalitarian foundations more adequately than has so far been proposed.

Whereas the Restatement of Torts and leading economic and justice-based approaches to explaining the standard of reasonable care advocate symmetric measurement of reasonable care across the defendant/plaintiff distinction, this article demonstrates that, in fact, the law applies this standard asymmetrically. Defendants are expected to discharge an objectively fixed amount of care, whereas plaintiffs are generally assessed using a subjective measurement of reasonable care. Normatively, I argue that an asymmetric assessment of care, because it combines an unfavorable assessment of defendant's negligence with a favorable assessment of plaintiff's negligence, means that the victim gets to fix the terms of the interaction. This argument resonates with the powerful egalitarian idea of accommodating, rather than overlooking, relevant differences; different treatment is necessary for the duty of reasonable care to give effect to the qualitative difference between the plaintiff's life and limb and the defendant's autonomy. Asymmetric assessment of due care, I argue, is the doctrinal metric by which the law determines what it is for the plaintiff and the defendant to relate as equals given that difference, or to relate as substantive equals.

The most powerful response to growing skepticism about the intelligibility of the idea of private ownership has been cast in terms of an owner's rights to the exclusive use of an object. In these pages, I argue that this response suffers from three basic deficiencies—rather than merely explanatory gaps—that render it unable to overcome the specter of skepticism. These deficiencies reflect a shared want of attention to the normative relationship that ownership engenders between owners and nonowners. In place of the right to exclusive use, I set out to develop an account of private ownership that seeks to defeat skepticism concerning this idea. The proposed account insists that the idea of private ownership picks out a special authority relation between an owner and a nonowner involving the normative standing of the latter in relation to an object owned by the former. I further demonstrate the important place of this idea in shaping the contours of normative disagreements about the point of ownership rights and responsibilities.

For private property to be legitimately recognized as a universal human right, its meaning should pass the test of self-imposability by an end. In this Essay we argue, negatively, that the prevailing (libertarian) understanding of private property cannot plausibly face this demanding standard and, affirmatively, develop a liberal conception which has a much better prospect of facing property's justificatory challenge. Private property, on our account, is an empowering device, which is crucial both to people's personal autonomy (understood in terms of self-determination) and to their relational equality (understood in terms of reciprocal respect and recognition among persons). The liberal conception of the human right to property has both vertical and horizontal significance—it implies respect from both the public authority and other individuals—which means that it is thoroughly political but not necessarily statist. Our account generates important implications, both domestic and transnational ones. Domestically it implies that whereas some property rights should be subject to strong constitutional protection, state law should facilitate other types of private and non-private property institutions, and these property institutions may well be subject to nonowners claims to access and, more broadly, to being treated respectfully. Furthermore, our conception of the human right to property requires that everyone must have the unusual authority typical to full-blown private ownership. Transnationally, our analysis highlights a freestanding dimension of relational justice, which is relevant across borders even given that our distributive obligations are statist. This injunction of relational justice in transnational interactions questions the adequacy of the current state of the law, according to which these interactions are mainly governed by choice of law rules that conceptualize them as wholly subsumed under the capacities of the parties as citizens of their respective polities.

Scholars traditionally conceptualize private law around a commitment to the values of formal freedom and equality. Critics of the traditional view (including lawyer-economists) dispute the significance of a distinction between public and private law, construing private law as merely one form of public regulation. Both positions are flawed. The traditional position is conceptually misguided and normatively disappointing ; the critical position confuses a justified rejection of private law libertarianism with a wholesale dismissal of the idea of a private law, thus denying private law's inherent value. This Article seeks to break the impasse between these two positions by offering an innovative account of the values that should, and to some extent already do, underlie the law of interpersonal interactions among private individuals in a liberal state. Rather than succumbing to the unappealing adherence to formal freedom and equality, private law should openly embrace the liberal commitment to self-determination

In these pages, I seek to advance two arguments, a negative and a positive. The negative one is that leading accounts of foreseeability in duty-of-care-analysis fail to make sense of the requirement in question. And affirmatively, I shall argue that the foreseeability requirement reflects a concern for the distinctively social form of interaction between risk-creator and risk-taker, namely, that the former could form a respectful interaction with the latter. This reconstruction of the foreseeability requirement may express the view that its moral center may be a thin form of recognition between members of a liberal society.

Property theory is an ongoing discourse attempting to articulate a compelling answer (or answers) to the following question: what is the single most significant or otherwise interesting thing about the concept of private ownership? In this article, I seek to advance three general claims in response to this question. First, I criticize certain leading attempts to answer this question. Second, the centerpiece of my article defends the claim that an adequate theory of the concept of private ownership must begin with the special standing that an owner possesses, which is to say the standing to demand that others will take the owner as reason-providing for them. Third, I argue that private ownership occupies an important place in between the public and the pre-political: One the one hand, private ownership reflects a genuinely private-law institution; and, on the other, it is a distinctive creature of the political order.

One of the most acute charges against private property observes that ownership generates a trespassory duty of exclusion that far exceeds the requirements of a commitment to values such as freedom and well-being, and accordingly there exists an analytical mismatch between the form of protecting ownership and the functions that this protection may serve.This article develops a novel account of ownership's normativity, maintaining that, apart from the functions it may render to external values, the form of ownership is in itself a source of value, in virtue of the society it may engender between free and equal persons. Any gap between the form and the function of ownership need not plague private ownership, because the functions of ownership do not exhaust the explanation of its good.The formal core of private property is a distinctively social one, even in the most isolated case of trespass to property. SETTING THE STAGE: THE CHARGE OF NORMATIVE ARBITRARINESS The charge of normative arbitrariness that I shall explore at this stage of the argument arises from the gap between the right to private ownership and its grounds. It will prove helpful to introduce this charge by reference to the familiar analogy between the two kinds of trespass tort – to the person and to the property of another.As it is often observed, the duties against committing trespass upon the person and property of another share an almost identical structure. Both duties may, in principle, extend to capture even a prohibition against making an unauthorised, though harmless contact with the body and property of another, respectively. 1 However, the structural similarity between the two torts is, at best, just that – it merely points out the morphology (or characterisation) of trespass torts.It becomes notorious, let alone a form of 'a serious travesty,' insofar as it purports to do the normative work of explaining how it is that the tort of trespass to property protects the right-holder with a more or less similar severity and strictness as the tort of trespass to the person of another does. 2 Indeed, whereas there is a strong sense that harmlessly using the person of another is, nonetheless, a form of wronging that person by treating her as a means rather than also as an end itself,nothing of this sort of explanation can be extended as a matter of course to make sense of the way in which property is protected by the common law tort, including in particular cases where using the property of another is inconsequential. *Tel Aviv University Faculty of Law. I would like to thank Eric Claeys, Hanoch Dagan, and the MLR anonymous reviewers for helpful comments on earlier drafts.

In this critical piece I take stock of current understandings of five basic distinctions in the theoretical study of tort law: First, a meta-theoretical distinction between the law's self-presentation and a commitment to epiphenomenalism; second, between the formal and the substantive theory of the morality of tort law; third, between corrective and distributive justice; fourth, between ideal and non-ideal tort theory; and finally, between culpability and justice (or equality). The law of torts is widely recognized as one key pillar of private law, which is to say the law that governs the terms of horizontal interactions among persons. Whereas contract law governs certain types of consensual interactions, the law of torts mainly occupies itself with involuntary forms interactions and, in particular, the duties that attach to those whose activities render vulnerable the legitimate interests of other people, including those who are outside the privity of a joint enterprise. In that, tort law amalgamates otherwise discrete torts into one unity, namely, the law of torts. For the past several decades, the theoretical study of tort law has proceeded by implicit or explicit rejection of the thought that the law at issue just is a purely contingent political fact. Instead, the positive law of torts is better understood as a rich repository of conceptual and normative insights capable of placing some constraints on what lawmakers can do and on what private persons can demand from one another. According to this theoretical tradition, the doctrines that the legal community and others commonly understand as tort law's are (at least potentially) microcosms of fundamental normative principles. Thus, the law of torts has been closely studied and sophisticatedly reconstructed, using philosophical, economic, and certain other established methodologies, in an effort to articulate the character, general principles, and normative commitments that underlie the rights and the duties that figure in this body of law. To this extent, The Philosophical Foundations of the Law of Torts (John Oberdiek ed., OUP 2014) provides a collection of illuminating essays on important questions—though certainly not all of these are, in fact, foundational ones—concerning the organizing ideas and normative ideals that underlie the law of torts. Indeed, John Oberdiek has assembled nineteen thoughtful essays and provided an extremely helpful introduction which together  Tel Aviv University, Buchmann Faculty of Law. The paper is an extended version of a critical comment published with the Notre Dame Philosophical Reviews (Januray 21, 2015) available at http://ndpr.nd.edu/news/55240-philosophical-foundations-of-the-law-of-torts/

Assumption of risk — the notion that one cannot complain about a harmful state to which one has willingly exposed oneself — figures prominently in our extra-legal lived experience. In spite of its deep roots in our common-sense morality, the tort doctrine of assumption of risk has long been discredited by many leading tort scholars, restatement reporters, courts, and legislatures. In recent years, however, growing concerns about junk food consumption, and about obesity more generally, have given rise to considerations that are traditionally associated with the principles underlying the doctrine of assumption of risk. Against this backdrop, I shall advance two claims: one negative and the other affirmative. The negative claim is that the major objections to the doctrine of assumption of risk are either misplaced or overblown. And affirmatively, I argue that this doctrine (properly reconstructed to reflect liberal-egalitarian intuitions) can provide an illuminating framework with which to address pressing social concerns such as the one associated with junk food's harmful side-effects.

Contemporary discussions of private law theory often assume that parties in a private law interaction can relate as equals if, and only if, equality is cast in terms of formal equality (sometimes called transactional equality). I devote these pages to refute this conceptual view, showing that it does not draw correctly the map of the logical space in which conceptions of private law equality are located. Negatively, I argue that the formal conception of equality, most comprehensively defended by certain influential corrective justice theories, does not exhaust this space. Affirmatively, I argue that this space provides room for at least one more conception which I call substantive equality.