Ernest J.Weinrib, Reciprocal Freedom: Private Law and Public Right, Oxford, Oxford University Press, 2022, 240 pp, hb, £90.00

At the heart of Ernest Weinrib's much-celebrated theory of private law lies an insistence on private law's distinctiveness qua private, and the resultant impossibility of its satisfactory theoretical reduction to mere ‘public law in disguise’ (L. Green, ‘Tort Law Public Law in Disguise’ (1959) 38 Texas Law Review 1). For Weinrib, this distinctiveness lies in the unifying correlative structure of the plaintiff-defendant relationship to which private law's component procedures, doctrines, and discourse give expression: in private law, liability is a correlatively structured conclusion (D's liability is to P), reached following a correlatively structured process (P took proceedings against D), with correlatively structured results (D's owes a remedy to P), justified on the basis of correlatively structured reasoning (for example, D inflicted some injustice on P, which injustice was unjust for D to inflict for the same reasons it was unjust for P to suffer). Correlativity, then, is private law's ‘supreme regulative principle’ (8), because at every stage of the liability inquiry – from liability's justification to its remedial entailments – the normative position of one party to the plaintiff-defendant relationship is only intelligible relative to that of the other. Weinrib takes this to establish the ‘public law in disguise’ reduction's failure: if private law represents an institutional elaboration of ‘normative considerations internal to the very idea of correlatively structured legal relationships’ (3), it cannot coherently serve as a tool to be directed towards collective ends the value of which is intelligible apart from those relationships (economic growth, public safety, etc). Once that much is accepted, challenging questions as to the relation between public and private law acquire renewed significance, otherwise tempting answers having become unavailable. How can courts’ public character condition private law adjudication without erasing private law's distinctiveness? What space do corrective and distributive justice leave for one another? How are we to think about the role played by constitutional rights in contemporary private law adjudication, the expansion of which Weinrib considers ‘the most far-reaching international development in private law since the end of the Second World War’ (117)? In all, how can a legal order comprised of separable and mutually irreducible parts nonetheless constitute a ‘juridical unity’ (97, 128)? In Reciprocal Freedom, Weinrib offers an elegantly structured and appealing set of answers to these questions. In doing so, he takes Kant's legal philosophy as lodestar; arguing that private law's place in legal order is to be grasped in light of the constitutive necessity of law for the equal freedom of interacting persons. The result is a remarkable book with a substantial scope, housing an argument that is inventive and powerful but always careful. Throughout, Weinrib's skills as both analyst and synthesist are on full display, with Kant, Aristotle, Hohfeld, Rawls, and others weaving together Weinrib's rigorous parsing of everything from the transfer of title in market overt (76-79) to the funeral-picketing of the Westboro Baptist Church (167-173). Kantian in substance, Reciprocal Freedom is also (and in the very best way possible) Kantian in style: the prose is complex but precise, and is frequently punctuated by some strikingly beautiful turns of phrase. In all, the book has much to offer anyone interested in private law theory, constitutional theory, general jurisprudence, or Kant's legal/political philosophy. Weinrib's overarching commitment here is to the common justificatory foundation of all legal relationships, public and private, in the innate right of each person to reciprocal freedom, ie to ‘independence from being constrained by another's will’ (31). Whilst this singleness of justificatory foundation allows a legal system to constitute a ‘juridical unity’, the system's parts nonetheless remain distinctive: their unity is one of a ‘conceptual sequence … [in which] each stage presupposes and complements the previous one without invalidating it’ (97). In this progression, the corrective justice of private law precedes the distributive justice of public law. As such, the book's argument spans outwards from the sort of close examination of private law relationships characteristic of Weinrib's previous work to a later consideration of how those relationships figure in the broader legal order. In the book's opening chapters, then, Weinrib retraces paths already traversed, but demonstrates with fresh clarity both (a) how his theory of corrective justice maps onto Kant's discussion of private right in the Rechtslehre, and; (b) what, if anything, Weinrib's theory might have to say about some of contemporary legal philosophy's most persistent disputes (over positivism and natural law (22-25), the ‘interest’ and ‘will’ theories of rights (41-46), law's connection to coherence (9-18), etc). Chapter 1 restates and nuances Weinrib's basic claim (sketched above) that the structural idea of correlativity lies ‘at the apex of a system of nested abstractions and determinations’ we call private law (7); all aspects of private law's substance, including crucially all justifications for liability, must match this structure if private law is to be a coherent normative enterprise that treats both plaintiff and defendant fairly. Chapter 2 outlines the sole form of justification Weinrib considers adequate to this structure. Liability is justified only as the corrective to an inconsistency with the plaintiff's right that is imputable to the defendant; the relevant right must always be correlative to the defendant's obligation, and the right-obligation pair must in turn be normatively grounded in considerations exhibiting a correlative structure. Kant advances an ‘unremittingly relational’ (viii) conception of rights up to this justificatory task. On the Kantian view, private rights and their correlative obligations juridically secure each person's independence from constraint by another's will, and are thus grounded in an entirely relational consideration going to how one person's action relates to that of others rather than to anything intelligible in non-relational terms (for example, the plaintiff's welfare). Chapter 3 provides occasion for Weinrib to illustrate, using the example of ownership, how this Kantian conception of private rights can normatively integrate what might otherwise appear mere bundles of Hohfeldian incidents (liberties, claims, powers, and so forth). Especially for those already familiar with the tenor of his approach to private law, some of these opening chapters’ most intriguing passages are those in which Weinrib brings his Kantianism into reciprocally illuminating conversation with the views of other important theorists. For instance, in articulating the sense in which his own theory of private law is ‘interpretive’, Weinrib briefly considers Ronald Dworkin's legal interpretivism (21-22). Although the discussion serves its intended clarificatory purpose reasonably well, it barely scratches the surface of the dimensions along which these two thinkers might be profitably compared given the plentiful similarities between them: their commitment to taking the self-presentation of participants in legal practices seriously, their preoccupation with law's normative coherence, their reliance on sharp distinctions between rights-based considerations and instrumentalist ones, etc. Indeed, further consideration of Dworkin's work might have enriched the somewhat abrupt discussion of legality's ‘two aspects’ that occurs mere paragraphs later (22-25). There, Weinrib asserts that the question of a legal norm's existence is ‘[a] formal matter … indifferent to whether the law is good or bad’ (22). This contention places him clearly at odds with Dworkin, meaning that Weinrib's catalogue of contrasts between his own treatment of interpretation and Dworkin's neglects to mention the deepest contrast of all: for Dworkin, but not Weinrib, instances of ‘interpretation’ (on the theoretically relevant sense) seek to accurately explain how certain institutional practices (for example, the passage of legislation) have modified the set of legal norms in existence; and for Dworkin, but not Weinrib, any such full explanation must go through moral considerations. Weinrib has substantially more to say on the work of Hohfeld, comprehensively defending the plausible view that Hohfeldian incidents (claim-rights, liberties, powers, immunities) form ‘the irreducible elements of legal analysis’, which the more abstract Kantian conception of right and obligation ‘normatively unifies’ (38). In the course of this argument, however, Weinrib draws a perplexing contrast between his own notion of correlativity and Hohfeld's. For Hohfeld, as Weinrib notes, the correlativity of two normative incidents amounts to their analytic equivalence: A's entitlement that B φ is correlative to B's duty to A to φ because each normative position just is the other position conceived from a different perspective, precisely as a downward slope viewed from above is an upward slope viewed from below (Matthew Kramer, ‘Rights Without Trimmings’ in Matthew Kramer, Nigel Simmonds, and Hillel Steiner (eds), A Debate Over Rights (Oxford: OUP, 2002). For Weinrib, by contrast, to recognise that right and obligation are correlative is additionally to appreciate that ‘the right is … the reason for the obligation; conversely, the obligation … exists by virtue of the right’: that is, right is ‘normatively prior’ to obligation (40). This discussion is perplexing for at least two reasons. First, Weinrib says that a Hohfeldian incident (say, a claim-right) can be normatively prior to another (a duty) whilst also ‘operat[ing] analytically as [its] equivalent’. But it is difficult to see how one norm could provide the reason for another's existence consistently with being its analytic equivalent: the former's provision of normative foundation for the latter would preclude the norms from being analytic equivalents, because the asymmetric normative support relation between them would render their characteristics non-identical. Perhaps much stock here is being put into the idea of ‘operating analytically as an equivalent’, but Weinrib leaves that notion ambiguous. Second, the claim that rights are normatively prior to obligations threatens to undermine Weinrib's contention that private law is relational all the way down: if the right is normatively prior to the duty, it must be intelligible apart from it; considered apart from duty, it is difficult to see how ‘right’ remains a relational normative concept. In Chapters 4 and 5, Weinrib starts to situate private law in wider legal space. He proceeds from the familiar Kantian premise that any wholly private act of legislation, enforcement, or adjudication seeking to secure private rights is problematic from the standpoint of reciprocal freedom. This necessitates the transition from a state of nature where private rights are ‘conceivable as implications of reciprocal freedom’ (133) to a civil condition in which the existence and characteristic activities of authoritative public institutions make those rights fully realisable. Charting this transition's implications for private law adjudication, Chapter 4's central claim is that, once the transition to a civil condition is made, reciprocal freedom's fullest realisation requires that the adjudicative treatment of private rights reflect courts’ occupation of ‘the omnilateral standpoint of a public institution’ (77), as well as the internal logic of the private rights themselves. Chapter 5 considers the relation between corrective and distributive justice, arguing that these ‘categorically distinct and mutually irreducible’ (96) forms of justice are nonetheless both components of a single, sequenced, system of rights animated by the idea of reciprocal freedom. On Weinrib's view, programmes of distributive justice respond to a threat to reciprocal freedom that only arises once the transition to the civil condition is made: by making possible the rightful acquisition and enforcement of property rights, that transition also makes possible ‘subordination for those whose sphere of action is confined to what is left over’ (103). That is, roughly, it generates the possibility that the propertyless become dependent on the good grace of the propertied to lead a dignified life. Through distributive schemes, then, the state militates against the danger that deprivation generates dependence. The discussion in both chapters is frequently compelling; but it is perhaps here, in accounting for the special complexity and capacities of modern liberal states, that the parsimony of Weinrib's account is tested most stringently. Chapter 5's examination of distributive justice meets this challenge impressively, demonstrating more lucidly than any existing Kantian account how the modern welfare state might find its basic justification not in its citizens’ welfare, but in their freedom. Some of Chapter 4's more detailed discussion of doctrine places the unity of Weinrib's account under greater strain. Symptomatic here is his treatment of the tort of inducing breach of contract, a tort Weinrib considers justified by the assurance it provides contracting parties that their rights will be respected, thus helping fulfil courts’ public function of ‘making everyone secure in their rights against everyone else’ (81). The account fails to explain at least two important features of the tort. First, it fails to explain why the wrong involves inducement. If A intentionally prevents B from performing their contract, but does so without interacting with B in a manner constituting inducement, A will not commit any tort unless independently unlawful means are used (OBG v Allan [2007] UKHL 21 at [178]-[180]). But liability in such prevention cases seems also to serve the assurance function Weinrib ascribes to the inducement tort. Second, whilst liability in the tort is based on intention to induce breach, Weinrib's argument implies that those who, say, negligently induce breach ought also be liable: liability encompassing negligent inducement would surely provide greater assurance/security to contractual right-holders. Anticipating this criticism, Weinrib contends that the assurance required is only against contractual rights being treated as ‘nullities’ (as happens in the case of intentional, but not negligent, inducement). But the theoretical motivation for this manoeuvre is never explained, and so it looks ad hoc. Chapters 6 and 7 examine a commonplace of modern constitutionalism: the application of constitutional rights to the adjudication of ‘horizontal’ controversies between private persons. For Weinrib, the phenomenon of horizontality reflects the juridical unity of the modern liberal state thematic throughout the book. Leveraging plentiful doctrinal examples, Weinrib effectively demonstrates how the common normative foundation of constitutional and private rights in Kantian innate right allows constitutional rights to coherently figure in the specification of indeterminate private law categories (horizontality's determinacy function), and in the judicial development of private law both incrementally through those categories (horizontality's development function) and less incrementally apart from them (horizontality's dignity function). The book's final chapter (Chapter 8) contains a rich discussion of the rule of law, its relationship to the concept of Rechtsstaat, and its bearing on private law adjudication. Notably absent from these latter chapters is any sustained examination of how democracy might figure in Weinrib's account of the modern liberal constitutional state. The exclusion is regrettable given the central importance of that ideal to such states, and its possible tensions with both the judicial development of private law and states’ realisation of their citizens’ equal freedom more generally. In particular, consideration of democratic norms might have enriched both (a) Weinrib's (sanguine) treatment of instances where judicial development of private law modifies clear legislative provisions (141-148); and (b) his account of the ‘omnilaterality’ of public right, which invokes terminology with clear democratic resonance (‘a legal system that all share’ (70), ‘a political unit that expresses a united will’ (73), etc) without exploring the connection. I have focussed on small details. Reciprocal Freedom will attract critics with deeper disagreements to voice. In the legal academy, the grip of the instrumentalism Weinrib opposes is tight and tightening. This book's staggering accomplishment is to demonstrate afresh the promise of an alternative path. It deserves a wide, long, and engaged readership.

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