A. The Closing of the Kantian Mind

In pinning a label to scholars within the Kantian tradition, I do not mean to diminish their differences. Weinrib draws primarily from Aristotle and Kant, Ripstein from Kant and Rawls.Footnote ¹⁴ Beever’s approach is also philosophical, though he has worked theory extensively through the details of doctrine. That said, these authors share overlapping views on various organising ideas in private law, such that commentators often discuss them together.Footnote ¹⁵

For Weinrib, corrective justice is associated with the idea that the positions of the parties, their normative entitlements, the nature of the injustice, and the justifications relevant to liability, are all correlatively-structured. Correlativity keeps out instrumental considerations such as deep pockets or the ability to bear losses, since these do not apply equally to both parties. Since correlativity is structural, it needs to be linked up to a substantive principle consistent with it. Here Weinrib draws on Kantian personality, referring to beings capable of setting and choosing their own ends, but not subject to a duty to act for any particular purpose. This idea generates negative duties of non-interference that protect purposive capacity per se, applying at the level of particular persons (“subjective rights”) and the system as a whole (“Right” as the objective order of value).

Ripstein’s account is in the same ballpark as Weinrib’s, though he gives Kantian independence pride of place. Each person’s entitlement to use their bodies and property as they see fit, consistent with the entitlement of others to do the same, gives rise to a morality of interaction that entails reciprocal constraints. While Ripstein and Weinrib are ad idem on Kantian right as the substantive source of private law entitlements, Ripstein argues that a focus on the right to independence proceeds in an opposite direction from Weinrib’s corrective justice starting point, since the latter appears to over-emphasise remedies over rights. Ripstein also takes the idea of purposiveness to be thinner than Weinrib’s and in any event subsidiary to equal and reciprocal negative liberty.

Beever follows a version of Weinribian corrective justice in his earlier account of negligenceFootnote ¹⁶ and subsequently takes a more explicit Kantian turn.Footnote ¹⁷ In Rediscovering the Law of Negligence, he delineates four spheres of morality – personal, interpersonal, societal and international – and argues that the first concerns ethics, and the last two distributive justice, while the interpersonal is the only sphere aligned with corrective justice. Beever’s analysis of negligence rests very heavily on what he sees as an unbridgeable distinction between principle (rules and doctrine) and policy (everything apart from principle). This distinction, like Weinribian correlativity, excises supposedly irrelevant considerations. In A Theory of Tort Liability, Beever uses a Kantian framework very similar to Ripstein’s. He defends a “rights”- rather than “loss”-based model of tort liability, where rights are understood in the Kantian sense of “equal maximum freedom”, “innate right” and “innocence”.

Critical engagement with Kantian theory is not in short supply, and commentators have often pointed to a lack of fit with doctrines such as the objective standard of care, pure economic loss, public authority liability, strict liability torts and economic torts.Footnote ¹⁸ I will eschew a review of common cavils. The principal difficulty is the “implausible claim” that Kantian right exhausts all that is significant about persons and relations, such that “human well-being as such has no normative or moral significance at all”.Footnote ¹⁹ One can certainly contemplate space for a conception of personality that accommodates a wider range of motivations and interests. As Keating observes, Kantians overshoot the mark by forswearing all talk of interests: “Evaluations of the urgency of the interests at stake are basic ingredients in judgments of negligence …. Articulating the care owed in some context requires balancing the plaintiff’s interest in avoiding physical harm against the defendant’s interest in imposing risk …. Almost any tort can be described in terms of some interest that it protects.”Footnote ²⁰

Indeed, we value freedom from interferences not solely because such interferences constitute disrespect for abstract personality, but because they may present setbacks to the variety of interests valued, prioritised and protected in private law.

In addition, to say that interpersonal justice is relational only insofar as it concerns the “not in charge of” relationship between abstract persons seems to denude the concept of its jurisgenerative capacity. Surely persons relate to each other on a wide variety of terms specific to the type of relationship and interaction at hand. Even if we took Kantian independence as our lodestar, it is hard to imagine its workability as an account of practical reasoning without interpersonal interests and other considerations taken into account. Bodily integrity, for instance, can be compromised in different ways and by different means, with the nature of the interpersonal wrong sensitive to the importance of the interest (physical, sexual, privacy-based, etc.) and extent of violation in the relevant context.

Moreover, in reasoning to what we owe each other, the Kantian might concede that: “Questions of whether a particular injury was within the ambit of the risk in a negligence action, whether a consequential loss was within the terms of a shipping contract [and so on] are not fully determined by the relevant juridical concepts.”Footnote ²¹ But Kantians perplexingly claim that these are run-of-the-mill questions resolvable by the application of Kantian right to particulars.Footnote ²² Others point out this “refusal to take interests into account makes it all but impossible to avoid being vague”.Footnote ²³ Consequently, the Kantian picture forecloses a range of considerations that enter our deliberation as bases for determining regulative principles.

B. The Contractualist Approach

In this respect, contractualism sees moral argument as interest-centred reasoning about the justifiability of actions to the persons potentially affected by themFootnote ²⁴ and philosophers have found that this method spells out “in illuminating terms” what it is for a nexus of duties and claims to hold between persons.Footnote ²⁵

First, unlike the Kantian view, contractualism does not presuppose a Procrustean description of abstract personality. This is not to say that one admits all manner of detail. For the purposes of determining what we owe each other in various contexts, our inquiry is practically oriented, not centred on specific individuals, but representative persons falling under certain descriptions, constituencies, or standpoints: peoples in global society, members of a political community, employers and employees, injurers and foreseeable victims, neighbours, parties to a commercial contract, and so on. As Kumar notes, the “description of a standpoint abstracts away from the points of view of actual people, so it does not pick out anyone in particular”, referring instead to persons in a certain social position and their generally characterised circumstances.Footnote ²⁶ Standpoint reasoning permits us to frame epistemically accessible options for conduct, by filtering cognitively burdensome and normatively irrelevant information associated with the particular preferences, history or makeup of specific individuals.

Second, contractualism recognises that persons interact in different spheres of interpersonal justice. A sphere constitutes a core area of interaction within which persons relate to each other, such as the political community, family, home, workplace or sites of commerce.Footnote ²⁷ While somewhat conventionalist in utilising socio-legal categories as a starting point, one could see this as an application of “situation-sense”, in its understanding of legal norms as clustering around models of interaction that include type-situations and transactions between type-characters.Footnote ²⁸ While some spheres involve multiple persons or classes of persons, and concern the distribution of benefits and burdens across parties, this does not entail that the relevant morality of interaction is a consequentialist one.

Third, contractualism acknowledges the significance and weight of various interests. Unlike the economistic view, however, interests are not reducible to subjective preferences, and neither can they be neatly aggregated under the banner of wealth maximisation. Instead, they are “distinctive” and “widely recognised aspects of individual well-being”.Footnote ²⁹ How does one identify admissible interests? There is no fixed formula: “[W]e bring to moral argument a conception of generic points of view and the reasons associated with them which reflects our general experience of life, and … this conception is subject to modification under the pressures of moral thought and argument.”Footnote ³⁰ We may take further guidance from the scheme of interests recognised in private law, ranging widely from self-determination and physical security, to proprietary, economic, emotional, dignitarian, reputational, privacy and other interests forming aspects of our well-being. This is defensible provided we do not see any existing hierarchy as cast in stone, given worries about pernicious path dependency.Footnote ³¹

Fourth, contractualism sees parties as not simply seeking advantages over others, but as possessing a shared willingness to modify individual demands in pursuit of mutually acceptable terms of cooperation. We pursue our interests in ways that can be justified to other persons who equally have interests to pursue. Rawls thus understands individuals to possess moral personality in being rational (capable of having ends or purposes), as well as reasonable (capable of abiding by fair and reciprocal terms of agreement). As Freeman explains: “[W]e think of a reasonable person as one who is cooperative and fair-minded, who respects others and their position and is sensitive to the reasons and purposes they have, and who is willing to moderate his demands and meet others halfway when conflicts arise.”Footnote ³²

A few clarifications: first, reasonable rejectability does not “function as a kind of primitive property that one somehow intuits”.Footnote ³³ What the contractualist framework offers is a procedure for interpersonal reasoning, which enables us to filter through various considerations. In addition, notions of “contract” tend to cause confusion. The idea of “contracting” does not refer to an actual consensus ad idem. Instead the hypothetical “contract” functions as a heuristic directing us to the positions of individual contractors, so that affected interests feature as personal reasons in deliberation. Rawls famously sends contractors to the original position behind a veil of ignorance, removing facts about their natural assets and abilities, class position or social status, and ethical or religious commitments, in order to excise arbitrarily conferred advantages from colouring our reasoning, and as a “way of testing whether one really does judge a principle to be acceptable from all points of view”.Footnote ³⁴ While Scanlonian contractualism does not employ a thick “veil”, it likewise recognises some stylisation of the information space. In considering a principle of mutual aid, for instance, while we consider the generic positions of rescuers and rescuees, we should not permit the fact that one so happens in actuality not to require such aid to taint the initial structure of deliberation.Footnote ³⁵

Lastly, contractualism alludes to principles that no one could reasonably reject. While Scanlon alludes to an “indefinite number” of valid moral principles,Footnote ³⁶ what we are ultimately comparing are various regulative options for the governance of conduct, practices and policies. Regulative options can be framed at different levels, as lawyers appreciate when parsing differences between rules, standards, principles and multi-factor approaches. Contractualists tend to frame the relevant regulative options at relatively high levels of generality in order to facilitate moral discourse and evaluation. We compare burdens to classes of persons under Rawlsian principles of justice with the distribution of burdens under alternative schemes; we compare principles of mutual aid (no aid, easy aid, aid despite high personal cost); we contrast principles of negligence and strict liability governing the imposition of risk within a community. As one commentator has observed, principles “should not be thought of as statable rules whose application requires little, if any, interpretation and judgment”.Footnote ³⁷ This suggests that contractualist reasoning is itself no algorithm for solving every problem of interpersonal justice, given the leeway one has in framing regulative options and the weight of the relevant considerations at stake. Nonetheless, as I will explain, the contractualist reasoning procedure is able to plug the gap between the abstract and concrete in a manner more compelling than the Kantian approach. It does not rest purely on our intuitions as to justice; depending on the question at hand, more fine-grained comparative analyses can be undertaken in specifying the relevant principles through the method of co-deliberation.Footnote ³⁸

For the contractualist, a course of conduct, practice, or policy is justifiable if permitted by regulative principles that nobody could reasonably reject as a basis for informed, unforced and general agreement. In examining a certain option, we contemplate how its adoption would burden different individuals under various standpoints. For each candidate principle, we look at the individuals who would be personally burdened the most, comparing pairwise the weight of the personal reasons which such individuals have for rejection. If a principle imposes greater burdens on others’ interests compared with alternative principles which could certainly burden oneself, but to a lesser extent, this would be a ground for reasonably rejecting the first principle. This interpersonal comparison of burdens to interests is often called the “greater burden” approach. We have reason to accept this approach in that each of us stands to benefit from an ethical system where our more pressing interests are given due recognition. A smaller burden on liberty to protect another’s security might be justified to both parties, if the alternative is an unattractive outcome where a more pressing interest in security is sacrificed for a trivial advance in another’s liberty, and such constraints jointly and severally advance each person’s interests on balance.

This method looks primarily to personal reasons that individuals have for rejecting a proposed principle, and only secondarily to non-personal reasons. Personal reasons include the various personal interests of prospective claimholders and affected persons, the nature of conduct and manner of interference with interests, and prior relational context, which enter deliberation as reasons for considering one principle over another. While Scanlon’s initial formula appeared to exclude aggregative reasons (the cumulative reasons of many individuals) and impersonal reasons (those that do not have to do with the way individuals would be affected), the better view is that these work as defeasible defaults that accord priority to the separateness of persons, while also making space for circumstances where each individual has equally or comparably pressing personal interests and it would be unreasonable to choose a principle favouring a single individual or smaller group over those of a larger group, or cases where countervailing impersonal reasons of sufficient magnitude and importance (such as legal-systemic and institutional considerations) can be given appropriate weight in determining which principles are reasonably rejectable.Footnote ³⁹

In any event, even if an interpersonal comparison of interests yields a prima facie preference for certain regulative options, permitting some activities or arrangements to proceed, relational justification requires that the interests of those burdened continue to exert demand for appropriate recognition. Institutional mechanisms might be morally required to uphold core interests. A socially valuable activity or arrangement might be permitted only on the grounds that due care is exercised, or that the least restrictive or burdensome means are used in proceeding. Reciprocal benefits might be necessary, including offsetting benefits flowing to those affected or mutual privileges to expose others to certain risks or setbacks in pursuit of overall and longer-term advantages for all, as are other forms of compensatory advantages that adequately vindicate the interests trenched upon.

Consider a few examples. We might argue that transiting from a state of nature into a political community is justified to each member of the polity. Each obviates greater burdens of the Hobbesian condition and gains more on balance, despite certain burdens imposed by the state’s coercive apparatus: the state provides public goods, fixes coordination problems and prohibits antisocial conduct threatening core physical and proprietary interests. Moreover, as between possible political schemes, once we discount arbitrary factors of socio-economic status, wealth and connection, we might accept something like Rawlsian principles of justice: protection of equal basic liberties, fair equality of opportunity for those with similar abilities and levels of motivation, and a measure of socio-economic security in the distribution of income and wealth.

Take a more basic dilemma of interpersonal morality: the justification of certain principles of rescue.Footnote ⁴⁰ The paradigm cases are where some person is suffering extreme pain or an immediate threat to life. The relevant parties are potential rescuees and rescuers who have little prior contact and are in a sufficiently proximate situation such that the latter have the ability and opportunity to offer aid. A principle of rescue must contemplate the relative interests of parties, in particular the possibility of significant incursions on the autonomy and resources of rescuers, as contrasted with the burdens of harm befalling the un-rescued. At one end, as Scanlon observes, we could reject an intolerably intrusive principle that required us to give no more weight to our interests than to the similar interests of others. On the other hand, we could accept a principle requiring us to make a slight sacrifice in order to alleviate someone’s dire plight; or perhaps a principle of helpfulness requiring us to aid those not necessarily in desperate need but who would benefit considerably. The burdens to each person as a potential rescuer are minimal, the benefits considered ex ante of being rescued from severe plight outweigh these burdens, and in the longer run this pattern of offsetting benefits works to the mutual advantage of all.

One arena of contractualist reasoning with especial relevance to private law can be found in the literature on social risks and tort theory. Fletcher famously invoked a continuity with social contract reasoning, arguing for a “reciprocity” principle in tort: a victim is permitted recovery for injuries caused by risks greater in degree and different in order from those created by the victim and imposed on the injurer or, in short, “non-reciprocal” risks.Footnote ⁴¹ To place Fletcher’s insights within a larger pattern of contractualist reasoning, we need to appreciate that the principle of reciprocity points to different aspects of interpersonal justification for persons within a community of risk.Footnote ⁴² We all have interests in pursuing valuable activities that unavoidably generate risks to others: certain kinds of travel, developing technologies, construction projects and so on. In comparing burdens to our interests in liberty and security, risky endeavours hold out the possibility of justification to each subject in the idiom of general expected benefit. Each individual might accept a small risk to life or limb insofar as this is offset by benefits associated with the policy or activity over time, as long as each shares similar prospects.Footnote ⁴³ As Keating puts it: “When mutuality of benefit is reali[s]ed in this way, no one’s life or limb is sacrificed to the greater good of others, and we each gain more from the right to impose certain risks than we lose from having to bear exposure to equivalent risks.”Footnote ⁴⁴ Accordingly, we might say that risk exposure is interpersonally justifiable if outweighed by greater benefits flowing directly or indirectly to those exposed and/or part of an equitable system under which those exposed may expose others to a similar profile of risks.Footnote ⁴⁵

The negligence principle further reflects the notion that each person can require reasonable precautions to reduce the risks of harm. As Lehman observes, the contractualist “might insist further that we seek to minimi[s]e the risk of harm to each [individual], aiming any precautions we take at the safety of each affected person”.Footnote ⁴⁶ Where the burden to a prospective victim under a system not requiring due precaution is greater in pairwise comparison with the burden on a potential injurer who has to bear the cost of a required precaution, and we all reciprocally benefit from a system of due precaution, such an obligation cannot be reasonably rejected. On the other hand, Fletcher’s reference to Rylands v Fletcher Footnote ⁴⁷ scenarios of bringing or keeping exceptionally dangerous things on land in extraordinary or unusual circumstances, or Vincent v Lake Erie Transportation Co. Footnote ⁴⁸ instances of necessity, denote situations where justification on the basis of general and reciprocally expected benefits are not present, such that a strict liability claim for financial compensation is necessary as a condition for proceeding with some risky activity, in order to account for the burden of risk and harm imposed. In this way, contractualism accounts for the respective places of negligence and strict liability as a matter of interpersonal justification; it does not purport to favour a movement to strict liability on instrumentalist grounds.Footnote ⁴⁹

I believe that the general unity of contractualist thinking has sometimes been obscured. Oberdiek makes the thought-provoking suggestion that given the bilateral structure of tort law, some forms of contractualism, such as Rawlsian social contract theory, are ill-suited as interpretive theories, given that the relevant justifications are applied omnilaterally to society at large; while others, such as Scanlonian contractualism that focuses on justification to a subject, are better suited to the privity of two-party interactions.Footnote ⁵⁰ I agree that Rawlsian political principles are not meant to be directly imported into private law, given the different “hats” adopted by the relevant classes of contractors. As I have argued elsewhere,Footnote ⁵¹ those who are “least advantaged” in the Rawlsian architectonic tend to be persons experiencing a clustering of disadvantages in secure functioning; private law on the other hand deals with a whole spectrum of relative positions, from those who are equally resourced to others situationally disadvantaged in different ways. Nonetheless, it is useful to emphasise a methodological continuity between contractualisms. As Scanlon notes, contractualism explains interpersonal aspects of morality and obligation, excluding parts that do not involve relational components (such as the cultivation of personal virtue), yet including Rawlsian political justice (with its institutional features).Footnote ⁵² As I suggest below, Rawlsian-type arguments evidently have some relevance to the justification of private law at the institutional level of the question of private rights of action. And it has been observed that, notwithstanding an administrative division of labour, what we owe each other in one sphere of justice can impact upon what we owe each other in another: minimum wage laws, rules on predatory lending in consumer credit transactions, and warranties of habitability are said to preserve an adequate social minimum, if not necessarily maximising the position of the less advantaged.Footnote ⁵³ Hence contractualism as a general structure of justification always applies interpersonally, with the catch being that the relevant relations between classes of persons requires adequate specification, whether in macro or micro senses. Emancipating the idea of interpersonal justice will thus require us to apply contractualist reasoning across a wider canvas. The normative principles that emerge through contractualist reasoning offer the resources to make sense of our institutions and practices, evaluate their merits and reconstruct these in keeping with our commitments to interpersonal justice.

A. Institutions of Interpersonal Empowerment

On the Kantian account, a rather thin account of empowerment emerges. First, these theorists downplay the importance of empowerment in focusing on Kantian rights and duties, rather than the power/liability aspect of a private law claim. Second, these theorists describe the role of a court in overly “bilateral” terms: the claimant and defendant in an immediate dispute. The judge’s mandate does not extend to the interests of any “non-participants”. By narrowing the locus of concern to a specific doing and suffering, however, it becomes harder to see what other interests different classes of persons might have, interests that drive a demand for access to justice in private law. Third, when Kantian theorists do direct their attention to systemic reasons for institutions, the account they render again revolves around Kantian freedom. For Weinrib, institutions are required as an external standpoint to bring home to parties their rights. Ripstein likewise thinks that the adjudicative institutions trace back to Kantian freedom, but he rejects empirical justifications such as imperfect information, partiality and defects in human motivation. Rather, institutions make determinate Kantian right in particular situations. Also, even in uncontroversial cases, Kantian right requires that the defendant is entitled to do nothing until the claimant successfully establishes an imputation of wrongdoing, hence requiring a publicly instituted process of resolution.

These issues – the problem of determinacy and protection of something akin to a presumption of innocence – are arguably part of the story of legal institutions. But they do not get us fully to mechanisms of individual empowerment. Moreover, they are driven by Kantian assumptions we have previously called into question. Contrast a contractualist account.Footnote ⁵⁴ In what sense do we owe it to each other to put in place an institution of private empowerment? Here, it might be useful to stress the multilayered relational nexuses that come to the fore. While on the one hand there is a bilateral nexus between a particular wrongdoer and victim, when considering the institution of private redress as a whole, we are also looking at similarly situated classes of claimant and defendant, and more generically, across all classes of persons in a polity who might seek to invoke the machinery of private empowerment through available causes of action for wrongs and injustices done to them – a macro-level type nexus closer to Rawlsian-level contractualist reasoning.

As rational and reasonable members of a community, we have shared interpersonal reasons for an institution of private rights of action. These include remedying particular injuries and giving effect to individual sovereignty in the sense of being able to hold others accountable for unjustified incursions on protected interests, in a way that is at the initiative of the victim and partially within their control. These are paralleled in conventional moral practices such as Strawsonian reactive attitudes, underpinned by a victim’s standing to demand recognition and reparation.Footnote ⁵⁵ Importantly, having private rights of action benefits each person by upholding social equality in the sense of equal access to justice independent of the vagaries of power and privilege. To put it another way, once irrelevant factors are “veiled”, the package of interests we all possess as members of a polity calls for the design of a legal institution that protects core first-order interests, allows victims to initiate the prosecution of claims, and promotes access to justice for all classes of claimants. We cannot reasonably reject a principle of equal access to justice or, as one commentator has put it, equal accountability for wrongs, which includes a recognition of equality of legal status, equality of empowerment in initiating a claim, and equality within the trial process.Footnote ⁵⁶ Any alternative arrangement contemplating less equal or unequal access to justice cannot be reasonably accepted, given the disproportionately greater burdens on claimholders who lose out under this system.

The contractualist method thus offers a normatively richer conception of the institution of private empowerment. Moreover, in its sensitivity to a range of human interests, the contractualist account is more hospitable in principle to novel claims at the frontiers of tort and other domains – gendered harms of sexual harassment, rape and unwanted pregnancy, causes of action concerning abuses of power by public authorities, and so forth – compared with the standard Kantian focus on a limited list of rights. In turning attention to institutional structures of empowerment, contractualism further connects private law with concerns of the civil justice system.Footnote ⁵⁷ For example, in ameliorating the impact of class, gender, race or other factors, more attention might be paid to levelling the playing field in favour of equipage equality by redistributing party and judicial resources, focusing on circumstances where the greatest burdens are borne by litigants, and where necessary, limiting the ability of powerful actors to force weaker parties out of public courts. Consistent with the room for manoeuvre provided by the contractualist framework, the various options require further context-specific determination consistent with the non-rejectable principle of equal access to private law justice, but thinking this way alerts us to the possibilities for equalising empowerment.

B. Entitlements and Obligations: What We Owe Our Neighbours

Consider a specific doctrinal illustration: the tort of private nuisance, often defined as an unlawful interference with a person’s private use and enjoyment of land.Footnote ⁵⁸ The relevant conception of persons and relational nexuses is quite different from the more abstract question of justifying the general institution of private empowerment. These notions are scoped to the circumstances, concerning classes of claimant-landowners or those with sufficient interests in land, and defendant-owners, occupiers and others who are responsible for creating, and at times continuing, such interferences.

Regarding the standard nuisance claim involving amenity harm, an unlawful interference is understood as one that is unreasonable and the maxim that governs relations between neighbours is often described, in the words of Bramwell B. in Bamford v Turnley,Footnote ⁵⁹ as a rule of “give and take, live and let live”.Footnote ⁶⁰ In Fearn and others v Board of Trustees of the Tate Gallery,Footnote ⁶¹ the majority of the UK Supreme Court reiterated that the idea of unreasonable interference is “rooted in values of reciprocity and equal justice”,Footnote ⁶² citing established authority that “reasonableness” is not to be understood in an overly broad or undefined way, but as expressing the principle of give and take permitting acts necessary for the common and ordinary use and occupation of land.Footnote ⁶³ In this regard, the “governing principle is good neighbourliness, and this involves reciprocity”.Footnote ⁶⁴ Lord Leggatt explained this as “a form of the golden rule that you should “do as you would have done by’” or, to put it negatively, “people cannot fairly demand of others behaviour which they would not at the same time allow others to demand of them”.Footnote ⁶⁵ As we will see from a contractualist perspective, this idea of reciprocity is a normative one, quite different from, say, Coase’s famously agnostic notion of reciprocal causation.Footnote ⁶⁶ The latter view controversially holds the claimant to be no different from the defendant in being causally implicated in the nuisance in question. This fails to draw any coherent moral distinction between the farmer and rancher whose cattle tramples the farmer’s crops, or for that matter, the respective actions of tortfeasors and victims generally, in its eagerness to recast nuisance as a question of transaction costs and efficient resource allocation.Footnote ⁶⁷

Other Kantian commentators have tried rationalising the tort within their conceptual armoury. Weinrib claims it “arranges for the co-existence of neighbouring owners on terms of their reciprocal freedom”.Footnote ⁶⁸ Beever’s “commutative justice” account holds that a nuisance claim will be permitted in circumstances where “the successful party was using his land in a manner more fundamental to the concept of property than the party who lost”.Footnote ⁶⁹ But a Kantian approach is apt to see rights primarily in thin terms of non-interference. Consequently, references to coexisting uses, or the relative fundamentality of property rights, must introduce further elements, such as the comparative weight of the relevant interests in the use and enjoyment of land, systematically applied across classes of claimants and defendants.

Let us attempt a contractualist account. The key idea is that reasonable use depends on interpersonal justification. We often undertake activities that interfere with the use and enjoyment of others’ lands. If these activities are undertaken in respect of mutually shared interests, and outweigh a more limited burden of inconvenience, they are interpersonally justifiable. Such interferences are “modest, reciprocal, and mutually beneficial”.Footnote ⁷⁰ Unreasonable interferences, on the other hand, are not interpersonally justifiable. These are material or substantial interferences that go beyond the burdens imposable so that all might enjoy greater benefits in the use and enjoyment of land.

Since nuisance is “the law of give and take, the court is inevitably concerned to some extent with the utility … of the defendant’s activity”Footnote ⁷¹ in addition to the burdens to claimants viz. the interests of both parties in the neighbourly nexus. In Sturges v Bridgman,Footnote ⁷² one could see as significant certain burdens on interests in being able to use a room on one’s land, whether as a living space or bedroom, or more particularly in this situation as a consulting room for a doctor, where such burdens involve noise and vibrations that prevents one from even being able to conduct any occupation requiring thought and attention. Such burdens are not interpersonally justifiable if imposed in the course of furthering the pecuniary interests of defendants, who might create significant interferences in their operation of machinery for a confectionary business. In the famous case of Hunter v Canary Wharf Ltd.,Footnote ⁷³ the House of Lords held that the general interest in being able to build on one’s land is weightier than a neighbour’s interest in being able to receive television reception in an already constructed residence (hence the construction was interpersonally justifiable and not a nuisance). In contrast, an interest in television reception is sufficiently widespread in modern life and arguably more significant than an interest in a company’s installation of high-voltage electrical lines.Footnote ⁷⁴ Because interpersonal justification as between persons is an inquiry into comparative interests, there is no mystery as to why courts consider the nature and extent of interference: duration, volume, and timing of noise (e.g. nocturnal noise)Footnote ⁷⁵ is relevant to the extent of the burden imposed on a claimant’s interests in being able to use or enjoy land (e.g. for rest and sleep).

Consider briefly the recent Fearn decision, where the majority found that the defendant’s art gallery had committed a nuisance via a visual intrusion, by opening a viewing platform from which many visitors could look into the living areas of the claimants’ glass-walled apartments. In contractualist terms, while one cannot reasonably reject a fair amount of unavoidable “overlooking” in the ordinary course of activities as between neighbours, the defendant’s activities imposed a burden beyond a level of modest and reciprocal interferences.Footnote ⁷⁶ Notably, it was held that private nuisance extends to visual intrusions and the protection of privacy interests.Footnote ⁷⁷ These extensions are readily supported by contractualism, which focuses on the range of interests in using and enjoying land – be they interests in physical integrity, security or kinds of amenities – rather than a particular manner of interference. One significant amenity interest lies in the ability to conduct personal activities in a protected space without being under the gaze of others. Consequently, we could accept that the impact of constant viewing by many strangers is likely to produce a significant burden on the privacy of claimants who have an interest in enjoying their residences free from prying eyes.

It is also not difficult to see the locality principleFootnote ⁷⁸ as consistent with a contractualist rationalisation of “live and let live” within a more “specialised” community of reciprocal burdens and benefits. In a residential locality, it is interpersonally justifiable to permit certain burdens of noise (music) and smell (cooking), in order to allow for shared interests in pursuing activities such as these which outweigh the burdens of amenity disruption imposed, as a matter of mutual advantage. In an industrial or commercial area, the pattern of interpersonally acceptable uses is different: “[v]ibrations from the operation of candy-making equipment are disruptive to doctors using sensitive listening devices, but not to other confectioners operating similar equipment.”Footnote ⁷⁹ The locality principle is thus based on the idea that relational justification can be tailored to parties situated in certain geographic nexuses.

Consider next the role of care and precaution. Whether a defendant has taken reasonable precautions to minimise or eliminate interference is a relevant factor. Yet it is not conclusive, as it is no defence that one has conducted oneself with care where interferences remain excessive, and subject to strict liability.Footnote ⁸⁰ While we generally benefit more from being able to construct or demolish homes than we lose by the inconveniences we have to put up with from time to time as a result of such activities, when choosing between various means of doing so we justify our actions to others by selecting the choice that imposes the least burdens of discomfort and inconvenience, involving less costly precautions or adjustments to an activity. Hence, “a man who pulls down his house for the purpose of building a new one … is not responsible as for a nuisance if he uses all reasonable skill and care to avoid annoyance to his neighbour by works of demolition”.Footnote ⁸¹ Nonetheless, even if one has taken care to avoid unnecessary interferences, the interference might remain interpersonally unjustifiable. In a Sturges-type scenario, if the level of noise and vibrations is such as to prevent a neighbour from making any meaningful use of his room, it is no answer that the defendant has taken all possible care in avoiding even higher levels of noise. Because the burden to the claimant’s core interests in the basic use and enjoyment of a room is greater than the defendant’s interest in operating machinery for business, and the relative weight of these interests applies systematically across parties, the defendant’s activities would be unjustifiable as a nuisance. Liability for private nuisance is thus not simply fault-based or exclusively strict: it partakes of different senses of “unreasonableness” in requiring different forms of justification to affected neighbours, the anchoring idea in a contractualist framework.

C. Repairers, Repairees and the Realm of Remedies

Kantians and contractualists agree that remedies should not be seized upon by instrumentalists to serve goals such as overall efficiency, welfare or other aims that have little to do with the relationship of the parties. But the Kantian account remains undergirded by a monistic conception of right. The position as summed up by Weinrib’s thesis of limitation is that “the remedy restores only the plaintiff’s right”.Footnote ⁸² This involves further sub-claims associated with the continuity between rights and remedies, including (1) that Kantian rights survive their violation; (2) that remedies are shaped purely by considerations of Kantian right; and (3) that remedies make it as if the breach never happened. These misconstrue the character and complexity of remedies.

In asking what we owe each other as a question of remedial law, it is important to be sensitive to the possible nexuses alluded to. On one hand, we have the interests of the immediate victim and wrongdoer. On the other, we contemplate the concerns of parties who are potential users of private law’s system of remedial justice and, beyond, a limited set of impersonal and systemic considerations that we cannot reasonably reject. Consequently, when considering our secondary entitlements, we open the door to a closely connected – but nonetheless distinctive – zone of normative inquiry, involving the comparative burdens on repairers and repairees in the choice of remedies.

First, Weinrib says that the “right survives the injustice and continues into the remedy, which is nothing other than the judicially crystallized post-injustice shape of the right”,Footnote ⁸³ while Ripstein insists that “what survives is your continuing entitlement as against me”.Footnote ⁸⁴ While this sort of rights-talk introduces equivocation, a more precise analysis might distinguish bottom-line claims, liberties, powers and immunities from rights understood as inputs of a certain kind.Footnote ⁸⁵ For the contractualist, bottom-line primary obligations emanate from an interpersonal comparison of burdens within the relational nexus at hand, where “rights” (in the more jurisgenerative sense) can be taken as amplifiers of core protected interests. A specific bottom-line obligation may be breached in a way that results in the former being extinguished; yet the considerations that shape the original entitlements, such as the protected interests animating it, certainly remain relevant as a matter of interpersonal justice. In this way they retain normative force and necessarily factor into our remedial responses, though their presence is not determinative.

Second, in crafting remedies, the contractualist will demur that this analysis is exhausted by Kantian right. Consider the perennial puzzle of a choice between injunctive relief and an award of damages. Like the Kantian, the contractualist rejects the instrumentalist notion that remedies are a choice between property and liability rules, dependent purely on the transaction costs of bargaining. But the contractualist can accommodate a wider variety of considerations. Take the case of remedial relief in nuisance. In Coventry (t/a RDC Promotions) v Lawrence,Footnote ⁸⁶ it was said that while the burden would be on the defendant to show why an injunction should not be granted, it would normally be right to refuse an injunction if all the well-known Shelfer criteria were satisfied (a small injury to the claimant’s rights, estimable and compensable via a small monetary payment, and on the flip side an oppressive outcome for the defendant),Footnote ⁸⁷ with the public impact, implications for the defendant and the existence of planning permission being relevant considerations.Footnote ⁸⁸

Consider that parties generally benefit from a regime that protects victims’ property interests in a way that does not impose greater and unnecessary burdens on nuisance-creators. This makes some version of a disproportionate hardship defence interpersonally justifiable to the parties. An injury readily compensable in monetary terms, which would lead to significantly greater burdens on the nuisance-creator were an injunction awarded, could warrant damages in lieu of an injunction. At other times, aggregative considerations of “public interest” may also factor into remedial design. The poster child in this regard is the well-known American decision of Boomer v Atlantic Cement Co.,Footnote ⁸⁹ an older and more well-established cousin of Coventry, which similarly departed from injunctive relief as a general rule in favour of a balancing approach taking into account relative impact and hardship to the defendant, as well as the public benefits of the defendant’s activities and investments in land.Footnote ⁹⁰ While an interpersonal comparison of interests between neighbouring claimants and defendants might yield a prima facie prohibition on the defendant’s pollution, the existence of wider social value to the defendant’s employees and local economy constitutes a type of aggregative consideration that is sufficient to militate against an injunction, given the greater burdens to societal interests were an injunction to be awarded. Nonetheless, the activity can only proceed with interpersonal justification if the claimants’ legitimate proprietary interests are adequately recognised. The defendant cannot simply claim that public benefit outweighs the claimants’ losses in aggregate. Rather, the normative force of the claimants’ interests in land means that the defendant must impose any interferences in the least restrictive fashion (by exercising care and moderating activities) and remains “strictly” liable for court-ordered financial compensation which ensures that affected claimants are no worse off physically or economically.

Third, in looking to the aftermath of remedies, a contractualist critique puts paid to the idea that damages make it as if the tort never happened.Footnote ⁹¹ As others have pointed out: “The thought that people who suffer devastating injuries or serious violations can be made whole is a comforting one, but there is no reason to think it true.”Footnote ⁹² Even if we take Kantians to refer to the restoration of a normative, rather than factual, equilibrium, it seems unlikely that remedies will always leave no normative remainder. A severed arm can be replaced by a prosthetic limb and monetary compensation, but as Gardner interjects, there always remains “a residue of unconformed-to reason, a remnant of the past that remains stubbornly inaccessible to reparative resolution … [i]f nothing else, there is the bare fact of my unperformed duty”.Footnote ⁹³

Since the contractualist accepts no inexorable connection between entitlements and remedies, she can acknowledge that while the interests giving force to primary obligations enter our remedial deliberations, there is no guarantee that such interests are fully commensurable with various measures of damages available in private law, as these variables cannot be neatly aligned along single metric.Footnote ⁹⁴ Consider then how we might justify certain kinds of vindicatory awards relating to non-pecuniary interests, such as compensation for pain, suffering and loss of amenity. We could accept that, regardless of any harms to the body requiring repair or replacement, everyone has irreducible interests in their physical persons, and in having the option to put one’s body to chosen uses. Examples include awards to unconscious claimants for the deprivation of ordinary experiences and the amenities of life;Footnote ⁹⁵ for autonomy deprivation given the unwanted birth of a child;Footnote ⁹⁶ and the recommended range of awards under the well-known Guidelines for the Assessment of General Damages in Personal Injury Cases.Footnote ⁹⁷

As between a situation where courts are paralysed by incommensurability and unable to provide a remedial response, and a regime offering some form of compensation, the former is clearly less acceptable given its significant burdens to victims. Moreover, given the interests of all users of private law in the systematic operation of its remedial machinery, we can reasonably accept that in such cases we might have to design a conventional scheme of awards where the initial figures are discretionally fixed, with the maintenance of remedial justice effected through comparative (horizontal and vertical) equity across different kinds of injuries depending on their scale and severity. Accordingly, we can rationalise remedies as the best possible substitutes for securing the interpersonal interests underlying our primary obligations while acknowledging the unavoidability of normative remainders. This recognition displays more fidelity to the complex texture of our normative landscape; it does not abridge a multifaceted inquiry by insisting on a unitary idea of Kantian right that allegedly exhausts the content of remedies.

D. Divisions of Labour