The Search for a Grand Unified Theory of Tort Law
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Theorists like to do a lot with a little. And not just because simple theories seem more elegant: we deepen our understanding when we learn that disparate phenomena are linked together. In physics, for example, the theory of thermodynamics showed us the relationship between mechanics and heat. In economics, the theory of the firm showed us that, across industries that look nothing alike, a simple principle helps explain the organization of economic activity. Of course, there is no guarantee that the disparate phenomena we suspect are linked actually are. Particle physicists continue to search for a Grand Unified Theory, which would integrate gravity with the other fundamental forces. It may be that there is no such theory, or that we are not in a position to discover it, even if there is one. But absent such a theory, our understanding of the way the world works seems incomplete. And our track record of linking disparate physical phenomena (mechanics and heat, electricity and magnetism, space and time) gives us good reason to suppose that there are deeper explanations in the offing.
Legal theorists like to do a lot with a little too, but their track record is decidedly less impressive. John Austin, for example, thought that he could capture the nature of law in a simple slogan: law is the command of the sovereign. H.L.A. Hart showed that Austin’s theory was too simple. Among other problems, some laws are not commands, and some legal systems do not have sovereigns, at least in Austin’s sense. But Hart had a simple theory of his own: a legal system is a union of primary and secondary rules. Alas, Hart’s theory was too simple too. It didn’t distinguish law from other systems with primary and secondary rules (chess, for example, or a university’s regulations). And there are reasons to doubt that rules are the fundamental building blocks of law, or that law even has fundamental building blocks at all. Indeed, it is possible that the connections between the things we regard as legal systems are simply historical, such that there is nothing — or at least nothing significant — that all of them share in common. To make this point, Ronald Dworkin invoked Wittgenstein’s image “of a rope composed of many strands no one of which runs for its entire length or across its entire width.” If law is like that, then the search for a common thread that runs through it, wherever and whenever it is found, is doomed to fail.
But doom does not entail gloom: you can learn a lot from reading Austin and Hart, even though you cannot learn what law is. And you can learn a lot from reading Professor Arthur Ripstein’s provocative new book, Private Wrongs, even though his project is just as doomed as theirs. Ripstein’s target is tort law, and he aims at nothing less than a Grand Unified Theory. He wants to explain both the rights that tort law recognizes and the remedies that it offers. But he is not satisfied with piecemeal explanations of this or that right or remedy. Rather, he says that recognizing “the unity of right and remedy is the key to understanding tort law” (p. ix). And one simple idea, he says, accounts for all of tort’s rights and remedies: no one is in charge of anyone else.
That’s a bold claim, and if it strikes you as too simple to be true, you are right; it is too simple to be true. But the book nevertheless merits serious attention, as it makes progress on some of the most perplexing problems about tort law. In the pages that follow, I’ll set out Ripstein’s account, as well as (some of) the details of the doctrine for which he has failed to account. I’ll also suggest that the search for a Grand Unified Theory is misguided; we ought not expect simple explanations for complicated and contingent institutions, like tort. But with a guide like Ripstein, the search is both fun and fruitful, so off we go.
* Professor of Law and Professor of Philosophy, University of Michigan, Ann Arbor. Thanks to Nick Bagley, Chris Essert, John Goldberg, and Don Herzog for helpful comments and conversations. Thanks also to the editors of the Harvard Law Review for many valuable suggestions.