Arthur Ripstein Speaks on “A Wrong Personal to You”

At the Seminar in Private Law on January 28, 2020, Arthur Ripstein, Professor of Law and Philosophy and University Professor at the University of Toronto Faculty of Law, presented his paper “A Wrong Personal to You.

Ripstein offered a Kantian account of why recognition of private rights by the legal system is required by the conception of substantive justice.

According to Ripstein, for the legal system to be considered just, the law must ensure individuals’ ability to seek redress for a wrong inflicted on them by other people. There are certain types of actions, Ripstein asserted, which are inherently wrong, not as a result of the law’s labeling them so, but because of their deontological wrongness in the community of independent persons. Following examples used by philosopher H.L.A Hart in his The Concept of Law, Ripstein focused on battery and invasion of privacy, the two types of conduct which require a person’s authorization to be normatively permissible.

There are three types of “standing” which, in Ripstein’s view, must be granted to individuals by law in relations with other persons. First, the right to not have one’s body or property interfered with without prior authorization. Familiar examples of these can be seen in the torts of battery and trespass. Second, the right to be “beyond reproach,” namely, the right not to be accused of something without that thing being proven right. Examples include presumption of innocence in criminal law, or the burden of proof placed on the plaintiff in civil procedure. Third, the right to make claims in one’s own name. These three, in Ripstein’s view, constitute the foundation of “legal personality” and must be present in a legal system for the system to be deemed just.

Ripstein addressed certain common objections to this view, including other private-law-centered theories of tort law, as well as the hard positivist view according to which it is the government that grants people rights (meaning, it can also take them away). Admitting that in certain circumstances the government might be allowed to limit the right to seek redress in one’s own name, Ripstein argued that the reason for such limitation must be the pursuit of good life for people, and that each such limitation must be justified. He spoke of the Canadian government’s actions regarding compensation to the First Nations as an example of such a justified limitation, applied for the greater good.

Each spring, the Seminar in Private Law brings speakers from academia and practice to Yale Law School to present papers addressing a common theme. The 2020 Seminar is devoted to the theme of private law and inequality. The Seminar is organized by Guido Calabresi Professor of Private Law Daniel Markovits ’00 and the Yale Law School Center for Private Law, which promotes teaching and research in contracts, property, and torts at Yale Law School and in the broader legal community.