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Rebecca Stone, Private Liability without Wrongdoing, __ U. Toronto L.J. __ (forthcoming 2022), available at SSRN (Oct. 19, 2021 draft).

Rebecca Stone’s fascinating and superb Private Liability without Wrongdoing addresses a fundamental question: What is the relationship between moral wrongdoing and private law liability?

On the face of it, moral wrongdoing is neither necessary nor sufficient for private law liability in common law jurisdictions.

Not necessary, one might think, because exacting, objective, “reasonable person” standards result in liability when the legal duty-bearer could not have acted otherwise. Further, private law rights and duties are insensitive to background distributive injustice. Therefore, one might think that if a homeless person agrees to pay a high rent to a wealthy landlord for shelter, the homeless person would not morally wrong the landlord if the person breached the legal duty created by the agreement.

And, less disputably perhaps, moral wrongdoing is insufficient: adultery is plausibly morally wrong, but, these days, does not attract private law liability. Consider, too, the wrong of failing to conduct the easy rescue of a drowning stranger because of a concern for spoiling one’s new shoes. Such an omission is generally not actionable in the private law of common law jurisdictions.

How should a philosopher of private law respond to these facts?

One response is to “go legal”. Private law is a law of wrongs. That is, legal wrongs. This response, however, does not answer the difficult justificatory questions posed by the above examples. Is it justifiable to impose liability for a legal wrong whose content departs from the underlying moral considerations? Even a successful analysis of the normative structure of the existing law does not provide an answer.

A different, neo-Kantian, response adopts a notion of moral wrongdoing which is at once capacious and narrow, with the result that the current law does track moral wrongdoing, and justifiably so. The relevant notion is capacious in that one may wrong another, on this view, even if one is not morally blameworthy. Consider the innocent trespasser—the person who had a reasonable but mistaken belief, based on the best available legal advice, that the land which she entered was hers. Arthur Ripstein, for instance, would describe this person as in breach of a moral (right-based) duty not to use a person’s means without their permission (see Arthur Ripstein, Private Wrongs (2016)). No matter that the person was, based on the relevant evidence, permitted to act in this way. Further, this form of wrongdoing is, on at least one Kantian view, insulated from background injustice. Whether I wrong you is independent of our positions in the wholly different domain of distributive justice.

The neo-Kantian notion of wrongdoing that justifiably gives rise to private liability is narrow because only certain kinds of breach of duty count. Failing to rescue a drowning stranger is not the right kind. Such nonfeasance is, on this view, a wrong against the public or fellow citizens, or perhaps a wrong sounding in virtue but not right, but not a right-based wrong to the stranger.

Rebecca Stone’s Private Liability without Wrongdoing offers a different response. Unlike the neo-Kantian view, Stone’s account holds that justified private liability does not necessarily track moral wrongdoing. On her view, genuine moral wrongdoing does (at least partly) depend upon distributive justice being secured. It is only if I am entitled in distributive justice to my resources that your depriving me of them morally wrongs me. Suppose we accept this. Nonetheless, Stone argues, it is justifiable to operate a system of private law liability that does not track moral wrongdoing.

How so? Stone’s central idea is that it can be morally permissible for A to enforce her legal rights against B, if A reasonably believes that A’s legal rights reflect what A is morally entitled to against B, even if this is not in fact the case. The article introduces the idea through the law and morality of self-defense. A is legally permitted to act in necessary and proportionate self-defense against an apparent threat posed by B, when it reasonably appears that B is about to violate A’s legal right. Crucially, A is legally permitted to act against a person, who, relative to the facts, is not a wrongdoer. Stone argues that the law is morally justified here. Making the permissibility of defensive action contingent on B’s actually being a wrongdoer is “overly demanding.” (P. 6.) Faced with what reasonably appears to be an unjust threat, requiring A to be correct would place A at too great a risk of succumbing to B’s attack: A would need to gather more information than can reasonably be expected of A in such a pressured situation. So, if Stone is correct, morality permits a person to impose defensive burdens upon apparent threats—against people who are not wrongdoers, but who reasonably appear to be such.

Stone argues that the same considerations which morally permit defensive action against apparent (but not actual) wrongdoers also morally permit remedial liability in private law against legal wrongdoers who are apparent (but not actual) moral wrongdoers. When one can reasonably believe that one’s legal rights reflect one’s moral entitlements against another, then one may permissibly enforce one’s legal rights. In this context, too, then, Stone claims that reasonable belief is sufficient to generate a moral permission to enforce one’s legal rights. Here, unlike in the defensive context, the reasonable belief relates primarily to a normative fact: that one’s legal rights reflect one’s genuine moral rights. Again, a standard of correctness – insisting that one’s legal rights perfectly mirror underlying moral rights before one is permitted to enforce them – would, according to Stone, be overly demanding. If one’s genuine moral rights depend upon resources being allocated in accordance with the correct moral theory of distributive justice, determining whether one has a moral right is “an immensely complex normative task.” (P. 8.) It would be too much to demand of people that they work out the correct normative theory of distributive justice before insisting upon their legal rights.

Instead, Stone says, under certain circumstances private individuals can reasonably believe their legal rights are moral rights. This is because the legal system, or state, typically enjoys a comparative advantage over individuals in determining the content of genuine moral rights and duties. First, in cases in which the underlying morality is indeterminate, and there are multiple possible realizations of people’s rights and duties, co-ordination requires that a solution be adopted, but this is not something which individuals can typically achieve alone. Here a person can justifiably defer to the law’s resolution of the co-ordination problem, the law being better placed to influence others to conform to this resolution. Second, the state will generally enjoy a comparative advantage over individuals in relation to the acquisition of community-wide information relevant to what any principle of justice requires in concrete situations. Third, “an appropriately constituted state” (P. 19) will enjoy a comparative advantage in relation to epistemic uncertainty over the correct principles of justice. In circumstances of epistemic uncertainty over justice, there are likely to be disagreements about justice. A democratic state is important both because it increases the probability of arriving at the correct view about the principles of justice, but also because it reflects the moral importance of each person having an equal say when it comes to matters of moral disagreement.

Stone does not think that anything goes, however: individuals cannot always reasonably believe that their legal rights are moral rights. Thus “[w]hen it is obvious that the law has given them more than justice entitles them to and others less, their deference isn’t justified.” (P. 45.) In these circumstances, a person has no moral permission, or no permission grounded in their own rights, to enforce their legal rights. So when will it be “obvious” what justice demands (and thus when the law has departed from or failed to recognise justice)? Two examples given by Stone are: (a) contracts vitiated by unconscionability doctrines, and (b) duties of easy rescue. In relation to (a), a contract whose terms are so substantively oppressive that no reasonable view about justice could support its recognition would fail to permit enforcement. Interestingly, in relation to (b), while Stone accepts that a general distinction between positive and negative legal duties is sustainable on the basis that positive legal duties tend to require much more complex systemic judgments to be justified, she rightly concludes that this argument has no traction in relation to duties of easy rescue, where the issue of justice is clear and independent of systemic considerations. Her view would thus permit the enforcement of legal duties of easy rescue in private law.

Overall, then, Stone provides an ingenious argument for the conclusion that private liability justifiably comes apart from moral wrongdoing: it does so just when people can be reasonably mistaken about when legal rights are genuine moral rights. Here are three comments.

First, there might be more to be said about the lynchpin idea in Stone’s argument—that a person who is reasonably mistaken about a threat to their rights is morally permitted to take defensive measures against the apparent threat. In the leading English case on the matter, the House of Lords decided against an honest (but mistaken) belief standard in tort (in contrast with crime). However, it strictly left open the question of whether reasonable mistaken belief should suffice for a defense; some judges clearly thought it would not (see Ashley v Chief Constable of Sussex Police [2008] UKHL 25). Other aspects of legal practice are built on the idea that a person who is reasonably mistaken as to a threat to their rights nevertheless has to compensate for the harm caused by the mistaken enforcement of their rights. For instance, in order to obtain a pre-trial injunction – before the facts can be determined reliably – courts will generally insist that the right-holder undertake to compensate for harm caused by the injunction in the event that the facts do not support the existence of their right.

Here are two substantive responses to Stone’s argument that a correctness standard for defensive action would be too demanding. (A) Even if it would be too demanding to insist that the facts be as they are believed to be prior to a person acting in defense of their rights, this does not necessarily settle the issue of who has to pay compensation when things go wrong. Intuitively it seems generally fair that, as between two innocents, the person who is mistaken about their rights ought to bear the cost of the mistake. (B) It seems clear that the apparent threat normally has a moral right of counter-defense against the reasonably mistaken enforcer. If it is permissible to act in defense against the reasonably mistaken enforcer, then it is unclear why it would be impermissible to extract compensation from the enforcer.

Stone’s likely response to these points would be that they focus too much on the self-defense scenario where it is conceivable that one person could know the facts, while the other (the mistaken enforcer) could be reasonably mistaken. By contrast, when the relevant facts are the complex normative facts about distributive justice, both parties will be equally in the dark about the complex truth about justice. Hence, there is simply no way of determining after some interaction whether one person was genuinely mistaken about their rights, and so no right of “counter-defense” and no right to compensation could ever realistically arise. If we allow, however, for the possibility that a view about distributive justice could be reasonable at one time and obviously unreasonable at a later time, we might then think that those who acted in a reasonable belief that their legal rights were moral rights at one time ought to compensate at a later time when it becomes clear that that belief was mistaken.

Second, not all of the types of situations discussed by Stone seem truly to involve liability in the absence of wrongdoing. Consider cases in which justice is metaphysically indeterminate. Suppose that it is indeterminate as a matter of raw morality whether a surgeon ought to disclose to patients risks of serious side effects between 0.5% and 1%. Suppose, nonetheless, that the law adopts a rule mandating disclosure of such risks, giving patients the legal right to such disclosure, because the law considers that there will be a value in all patients being treated equally vis a vis such risks. Imagine now a philosopher surgeon who thinks to himself “Well, justice is truly indeterminate about this 0.6% risk so I will not disclose it since I think it will be detrimental to the patient’s decision-making.” Isn’t there a plausible sense in which the surgeon morally wrongs the patient here (not simply the legal system or the public at large), even though he fails to disclose a risk that raw morality does not require him to disclose? The wrong might consist in the patient’s not being given information to which everyone has been given a legal right in such circumstances, viz when the patient’s moral rights are at stake; the surgeon’s act places the patient in an unequal position vis a vis others in relation to that matter. Furthermore, in more realistic cases, it will itself be a matter of epistemic uncertainty whether justice is indeterminate on some issue. In cases in which a legal duty-bearer decides to depart from their legal duties on the basis that, in their view, raw morality does not in fact require the legally mandated conduct, they will frequently be taking an impermissible risk vis a vis the legal right-holder’s moral rights.

Finally, Stone strikingly concludes that, on her account, “private legal liability isn’t properly directed towards ensuring that justice is done.” (P. 8.) If this means that it is not the aim of private law liability to grant people remedies that reflect their entitlements in justice, I don’t think it follows from Stone’s arguments. If it is known or there are reasonable grounds to believe that legal liability does not reflect what justice demands, then, on Stone’s account, liability is pro tanto morally unjustified. The fact that liability is generally justified only when there is a reasonable belief that the legal rights are moral rights shows, to the contrary, that legal liability ought to reflect the moral rights between the parties. The fact that courts may often be justified in deferring to the views of legislatures about what justice requires does not show that they should not aim to do justice, but only that their aim must sometimes be pursued by an indirect strategy. It seems more apt to say that private law’s aim in designing liability rules ought to reflect the parties’ positions in justice, but that legal institutions should operate on the basis of reasonable beliefs about those positions.

In sum, this is an excellent article that deserves wide readership amongst philosophers of private law.

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Cite as: Sandy Steel, Liability without Wrongdoing, JOTWELL (June 17, 2022) (reviewing Rebecca Stone, Private Liability without Wrongdoing, __ U. Toronto L.J. __ (forthcoming 2022), available at SSRN (Oct. 19, 2021 draft)), https://torts.jotwell.com/liability-without-wrongdoing/.