In lieu of an abstract, here is a brief excerpt of the content:

HUMANITIES 133 Arthur Ripstein. Equality, Responsibility, and the Law Cambridge University Press 1999. xii, 308. US $64.95, US $22.95 Arthur Ripstein=s Equality, Responsibility, and the Law is an exciting and ambitious attempt to unify theories of distributive justice with tort and criminal law. Rich in its references and examples, refreshingly clear and systematic, it is one of the most interesting books to appear in legal theory in the last several years, and will be well appreciated not just by legal philosophers, but also by political philosophers and academic lawyers. Ripstein=s aim is to show how the Anglo-American law of accidents (tort law) and criminal law reflect a deep, and deeply attractive, liberal political theory by articulating a conception of individual responsibility in a social world. As he sees it, the province of distributive justice is to ensure that individuals have fair starting points in life, conditions of the possibility of living valuable lives in concourse with others. Tort and criminal law set the >fair terms of interaction= necessary to preserve the legitimacy of these starting points, defining when we must bear the costs of permissible activities that go awry, and what activities are forbidden to us altogether. There are several foils for Ripstein=s view: legal realists and their critical heirs, who argue that to the extent legal doctrine is not simply a contradictory mess, it perpetuates class and power inequalities; economistutilitarians , who fail to take seriously the importance of individual interests in their pursuit of aggregate utility; and libertarians, who fail to see that the allocation of responsibility is fundamentally a political task. Making good his claim, therefore, involves providing a coherent interpretation of complex areas of law, as well as showing the independent political attractiveness of that interpretation. The first third of the book (chs 2B4) concerns accident law. Ripstein=s argument is that only a legal system that allocates accident costs on the basis of fault respects the demands of individual responsibility and equality. Theories of strict liability that purport to allocate responsibility on the basis of causation (e.g., Richard Epstein=s) fail because they do not recognize that causation is shared by both agents and victims, hence cannot allocate costs without a further normative principle. >Fair interaction= is the necessary principle, and that leads to the fault system, which defines what conduct in a social context is reasonable and what unreasonable. Similarly, economic approaches that allocate responsibility by balancing injury against precaution costs (e.g., Guido Calabresi=s) fail because they unfairly make victims= recovery turn on the contingent question of whether it would have been cheaper for the injurer to take precaution than pay damages, thus not respecting the independent importance of the victim=s interests. Although it is not clear why individual responsibility must be expressed through a system of tort liability B the socialization of accident costs, as in New 134 LETTERS IN CANADA 2000 Zealand, would still seem to leave room for other expressions of individual responsibility B showing how tort liability does express them results in a powerful philosophical justification. The second third of the book (chs 5B7) shows how criminal law reflects an attempt to allocate risk and liability on fair terms of interaction. Ripstein provides a nice explication of criminal activity: it >seeks to substitute private rationality for public standards of reasonableness.= The roughly Kantian point of punishment is to vindicate the demand that individuals regulate their conduct in the light of a conception of social life among equals, not private advantage, by both rendering the criminal=s activity irrational (in private terms) and expressing the importance of the public standards. Ripstein goes on to argue for an objective theory of criminal excuses, holding liable defendants with sincere but unreasonable mistaken beliefs, and to defend punishing unsuccessful attempts less than successful ones. While this section of the book is less persuasive, perhaps because individual desert seems to play a greater role in criminal doctrine than the notions of fair allocation of risk highlighted by Ripstein (as opposed to the case in tort), it is nonetheless filled with illuminating examples and asides. The book=s final two chapters contrast Ripstein=s theory of distributive...

pdf

Share