Importance of Not Being Ernest, The

The Importance of Not Being Ernest

Allan C. Hutchinson*

Formalists have long tried to develop a legal
theory, based on the internal rationality of
law, which would free it from the influences
of instrumentality and ideology. Focussing on
the philosophical proposals of Ernest Wein-
rib, the author argues that this goal is both
illusory and undesirable. Weinrib’s theory as-
sumes rather than proves the existence of this
rationality, which is simply defined as an in-
terrelationship between form and content. In
order to maintain the coherence of this fragile
relationship, Weinrib is either forced to ar-
ticulate his theory on such a level of abstra-
tion so as to be irrelevant or to reintroduce
the values he has tried to exclude. As a result,
his theory is ultimately reliant on an ideology
which, disguised in the formal equality of
corrective justice, defends a notion of ab-
stract rationality at the expense of political
and social responsibility. Moreover, that hid-
den ideology is of a markedly conservative
tilt.

EL’cole formaliste tente de d~velopper une
th~orie fond~e sur ]a rationalit6 interne du
droit, ce qui 6viterait les influences instru-
mentales et id~ologiques. Prenant pour
exemple le discours philosophique de Ernest
Weinrib, l’auteur soutient qu’une telle ten-
tative est illusoire et n’est pas souhaitable.
Cette thorie, loin de prouver l’existence
d’une telle rationalit6, la presume et la d~finit
par le lien entre Ia forme et le contenu. Ten-
tant de maintenir la coh6rence de ce lien fra-
gile, Weinrib doit ou bien formuler sa thorie
un niveau d’abstraction tel qu’elle perd
toute pertinence ou bien r6introduire les va-
leurs m~mes qu’il tente d’exclure. I1 en rrsulte
une throrie basre ultimement sur une idro-
logie qui, sous l’apparence de l’fgalit6 for-
melle de la justice corrective, d6fend, en fait,
une notion de rationalit6 abstraite au drpens
de la responsabilit6 politique et sociale. De
plus, cette ideologie sous-jacente a un clair
penchant conservateur.

*Associate Professor, Osgoode Hall Law School, Toronto. I am grateful to Corinne Doan,
Richard Epstein, Leslie Green and David Liblong for their critical encouragement and
assistance.

McGill Law Journal 1989

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Synopsis

Introduction
The Weinribian Gambit

I.
II. The Notion of Law
III. Legal Intelligence
IV. The Hidden Agenda
V.
VI. Determining Determinacy
VII. A Risky Business
VIII. Ghost-busting

Incorrect Justice

Introduction

More than most continents, North America is a land of dreams. It exists
as much in the ideological geography of the imagination as in any political
gazetteer. One particular dream that has withstood the reality of waking
history is about ‘a government of laws, not men’. Although this constitu-
tional vision is predominantly American, it has retained a firm grip on the
Canadian popular and legal imagination; it has been a major source of
governmental authority and legitimacy. There is a long-standing belief in
the United States and in Canada, especially in these post-Charter years, that
Law is more than the sum total of extant laws: it is felt to be the expression
and repository of a political wisdom that transcends the bounds of its tem-
porary articulation.’ Democratic law-making cannot be left entirely to its
own promptings, but must be judged by its willingness to conform to the

‘See A. Hutchinson & P. Monahan, “Democracy and The Rule of Law” in The Rule ofLaw:
Ideal or Ideology, A. Hutchinson & P. Monahan, eds (Toronto: Carswell, 1987) at 97. Even the
most pragmatic of constitutional commentators affirm “repeated acts of faith” that law “has
both boundaries and moral significance not wholly reducible to, although never independent
of, the ends for which it is deployed”. L. Tribe, Constitutional Choices (Cambridge, Mass.:
Harvard University Press, 1985) at 4.

1989]

THE IMPORTANCE OF NOT BEING ERNEST

dictates of a higher law. Whereas Reason and Natural Right used to hold
considerable sway, recent sightings of these transcendent authorities are of
a more specific and prosaic nature. Recognising that, whatever else it might
be, lav is a human activity, contemporary legal theorists strive to explain
and justify the delicate (and elusive) relation between law’s immanence –
the idea of law as the rational embodiment of an indwelling necessity –
and law’s instrumentality –
for social engineering.

the practice of using law as a democratic tool

Although this challenge is most pressing in constitutional matters, its
demands colour all facets of the legal enterprise. At the heart of the matter
is the vexing question of normative authority in a world in which people
not only have the full prerogative to make new laws, but also the power to
remake the very concept of law.2 Despite the institutional commitment to
democracy and the regular incantation that “the life of the law has not been
logic, but experience”, lawyers are still deep in philosophical sleep. Detached
reason remains the touchstone for valid knowledge about ourselves, our
predicament and the legal order. In the struggle for social justice, abstract
reflection is given priority over democratic engagement. 3 Thus, it is re-
commended that lawyers become philosophers if law is to perfect itself and
operate as a guide for the anguished democrat. Although law is political, it
is distinguishable from the more open-ended ideological debates that are
the stuff of political struggle. There remains a profound commitment to the
idea that we can still “know the dancer from the dance”. 4

This dream, in which the dreamers “see themselves as a nation standing
under transcendent judgement … as a beacon to the world, an American
Israel”, 5 has neither convinced nor persuaded all lawyers or theorists. They
see it more as a nightmare from which people must be awakened. The
problem is that the more law is seen as an instrumentality, the less it is able
to retain its claims to immanence: the more relevant it becomes, the less

at 78-79.

2See D. Boorstin, ‘The Perils of Indwelling Law” in R.P. Wolf. ed., The Rule of Law (1971)
3See M. Walzer, “Philosophy and Democracy” (1981) 9 Pol. Th. 379. Although this ideal
seems to speak in the mystical tones of bygone days, it remains the chosen voice of modem
jurisprudence. In the Dworkinian Empire of Law, for instance, the princely judges must leave
it to philosophical “seers and prophets … to work out law’s ambitions for itself, the purer
form of law within and beyond the law we have.” While such imaging may elude lawyers, they
are not left to their own devices for their “god is the adjudicative principle of integrity…”.
R. Dworkin, Law’s Empire (Cambridge, Mass.: Harvard University Press, 1986) at 407 and
400.
4W.B. Yeats, “Among School Children” in The Poems: A New Edition, K.J. Finneran, ed.
(New York: Macmillan Publishing, 1983) 215. See, e.g., R. Dworkin, supra, note 3 and 0. M.
Fiss, “Objectivity and Interpretation” (1982) 34 Stan. L. Rev 739.

5M.J. Perry, The Constitution, the Courts and Human Rights (New Haven, Conn.: Yale

University Press, 1982) at 98.

McGILL LAW JOURNAL

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transcendental it appears. This leads to a crisis of normative authority: is
law nothing more than what lawyers say it is? Is law only as good as the
lawyers who interpret it? Has immanence been eclipsed by instrumentality?
The charge is that philosophical revelation is a poorly disguised style of
political advocacy and that the law’s immanence is the reflection of lawyers’
instrumentalities. The supposed sovereignty of Reason is suspected to be a
“dictatorship of the self-righteous” ‘6 that cannot claim and is not deserving
of authority over democratic deliberation. In short, law is politics. 7

The contemporary response to this dilemma of legitimacy has taken
two general forms. One has conceded the force of much of this critique and
accepted that the legitimacy of adjudication is largely tenuous. Nonetheless,
feeling obliged to make the best of a bad job, the holders of this view look
to the courts as the venue for a civic and situated dialogue that is conducted
in accordance with a self-correcting and practical canon of reasoning; law
is an integral part of politics.8 The other form of response has been, so to
speak, to pull the legal bedclothes higher and try to go back into a deeper
philosophical sleep. The loss of faith in law’s immanence is not considered
an occasion for a failure of idealistic nerve. Rather than give up the dream
of Reason, some have counselled a redoubling of abstract efforts.

One who has answered this call to theoretical arms is Ernest Weinrib.
His mission is not only to revive the rationalists’ dream, but to establish
its relevance and benefits for the waking world. Assuming the mantle of the
true philosopher, he brooks no dalliance with instrumental understandings;
he makes an eloquent pledge of his unwavering affections and considerable
energies to the revelation of law’s neglected immanence. Finding his inspi-
ration in the Aristotelian and Kantian traditions, he offers a thoroughly non-
instrumental theory of law. Indeed, he suggests that, because rights discourse

6A.M. Bickel, The Morality of Consent (New Haven, Conn.: Yale University Press, 1975) at
142.7By ‘politics’, I do not simply mean conflicts over the exercise and control of government
power; this is only a sub-species of a larger genus. I use the term to refer to the conflict over
all the terms and conditions –
of
our collective and individual lives. See R.M. Unger, Social Theory: Its Situation and Its Task
(Cambridge: Cambridge University Press, 1987) at 10. Also, by ‘law’, I do not mean all phe-
nomena that can be considered legal; my focus is more restricted. While I encompass law as
an analytical category and practical activity, my enquiry is about the work of courts and lawyers,
whether they are dealing with the common law, statutes or constitutional norms. This essay
makes no claims about the work of legislatures or constitutional conferences. Accordingly, my
concern is with the relation between the larger world of politics and the smaller sphere of
doctrinal development.

social, economic, institutional, passionate and whatever –

8See, e.g., EL. Michelman, “Foreword: Traces of Self-Government” (1986) 100 Harv. L. Rev.

1989]

THE IMPORTANCE OF NOT BEING ERNEST

is the modern m6tier of law, “we are all Kant’s children”. 9 Rather than turn
our backs on this heritage, Weinrib urges us to effect a dutiful exercise in
jurisprudential rehabilitation. While there is much truth to this assertion of
philosophical paternity, there is little reason to visit the sins of the father
on his children. After 200 years, the attempt to revive the dubious virtues
of purism, scholasticism and logicism in the jurisprudential enterprise is
unwarranted. My ambition is to nip this Kantian revival in the bud. For
all its philosophical rigour, Weinrib’s theory of legal formalism makes no
better progress in resolving the law/politics conundrum than those contem-
porary theorists who eschew such traditions. After outlining Weinrib’s cen-
tral ideas, I will substantiate a set of criticisms that display the fatal
philosophical weaknesses and suspect political affiliations of his theory. As
a way of giving concrete expression to those criticisms, I will concentrate
on developments in tort law. Throughout, I suggest the different shape and
direction that the jurisprudential project might take if it were to be fired by
the democratic imagination rather than instructed by the philosophical
mind.

I. The Weinribian Gambit

Weinrib sees the opportunity for his own success in the modern failure
of the formalists’ project. Grasping the moment, he presents the full-blown
culmination of his own developing theory of law and adjudication.’ 0 He
happily concedes that critics, like Unger, 1 have got it right about the ina-
bility of Dworkin, Fiss and others to deliver on the formalists’ promise. But
this, for Weinrib, is only because they are not the true carriers of the for-
malists’ torch; the problem is not with the project, but with its execution.
For Weinrib, the defeat of these modern usurpers clears the intellectual roster
and allows him to reclaim the formalists’ project as his own. The fact that

9″Law as a Kantian Idea of Reason” (1987) 87 Columbia L. Rev. 472 at 472 [hereinafter

“Reason”].

10See, e.g., the following articles by Weinrib: “A Step Forward in Factual Causation” (1975)
38 Mod. L. Rev. 518 [hereinafter “Causation”]; “The Case For A Duty To Rescue” (1980-8 1)
90 Yale L.J. 247 [hereinafter “Rescue”]; “The Intelligibility of The Rule of Law” in The Rule
of Law: Ideal or Ideology, A. Hutchinson & P. Monahan, eds (Toronto: Carswell, 1987) 59;
“Toward A Moral Theory of Negligence Law” in Law and Philosophy: An International Journal
for Jurisprudence and Legal Philosophy, vol. 2 (Dordrecht, Holland: D. Reidel Publishing
Company, 1983) 37 [hereinafter “Negligence”]; “The Insurance Justification and Private Law”
(1985) 14 J. Leg. Stud. 681 [hereinafter “Insurance”]; “Enduring Passion” (1985) 94 Yale L.J.
1825 [hereinafter “Passion”]; “Reason”, supra, note 9; “Causation and Wrongdoing” (1987)
63 Chi.-Kent L. Rev. 407 [hereinafter “Wrongdoing”]; and “Legal Formalism” (1988) 97 Yale
L.J. 949 [hereinafter “Formalism”].

“See R.M. Unger, The Critical Legal Studies Movement (Cambridge, Mass.: Harvard Uni-

versity Press, 1986).

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his work might appear “out-moded or fantastic”‘ 2 and “a world apart from
the assumptions of contemporary scholarship”‘ 3 is not considered by Wein-
rib to be its weakness, but its very source of analytical power and philo-
sophical strength. By moving away from the modernist mishmash of
contemporary theorising, Weinrib aims to restore jurisprudence to its right-
ful place in the durable traditions of classical philosophy and to revive the
flagging fortunes of legal formalism.’ 4

For all the difference in style, source, temperament and method from
contemporary writers, Weinrib remains engaged in the same apologetic un-
dertaking of showing that contemporary law is the “deserving object of our
allegiance”.15 Like Moses and Marx, he is a discoverer who declares the
good and urges its controlling power on the world. Yet, like those prophetic
dreamers and their modern legal imitators, Weinrib must negate his project
if he is to have any hope of completing it. He has to reach outside the law
to make good on his claim that law possesses a unifying vision of author-
itative morality. Furthermore, Weinrib’s theory is impaled on the same di-
lemmatic horns as those of his more voguish chums. He is unable to solve
the inescapable riddle of formulating a workable combination of analytical
generality and contingent specificity: he runs the risk of over-inclusion or
under-inclusion. A theory that merely describes the extant details of legal
practice will not be able to predict the direction and nature of change; it
will cease to be useful at the very time its assistance is most required for
the identification and resolution of hard cases. On the other hand, a theory
that attempts to move beyond such detailed description either will not be
able to account for a sufficient range of present legal data, or will be com-
patible with combinations of legal materials that are different than those
which comprise existing legal doctrine.

Reversing Holmes’ famous dictum, Weinrib contends that the life of
the law is the logic of its own experience. Immersed in and confined by the
raw legal materials of social history, the legal theorist must work to reveal
the formal coherence that unifies them into a meaningful order of moral
worth; legal formalism is the normative truth of that legal history. The law
is nothing more (or less) than an immanent moral rationality: it is less than
a positive instrument at the ideological disposal of its temporary guardians

12″Insurance”, supra, note 10 et 685.
13″Reason”, supra, note 9 at 507.
“4Formalism is the attempt to define and defend a method of legal justification, distinct from
open ideological debate, that represents a workable scheme of social justice. See Unger, supra,
note 11 at 5-42 and A. Hutchinson, Dwelling on the Threshold: Critical Essays in Modern
Legal Thought (Toronto: Carswell, 1988) at 23-55.

‘ 5″Formalism”, supra, note 10 at 952.

1989]

THE IMPORTANCE OF NOT BEING ERNEST

and more than an empty vessel waiting to be filled. With such a philosophical
schema, it is nonsensical to talk of purposes and ideals outside the law for
“law has a content that is not imported from without but elaborated from
within.”‘ 6 Law reaches its fullest perfection when its form and substance
are conjoined in harmonious unity. This “supreme achievement of mind” 17
is the raison d’etre of legal theory which must forever strive to bring formal
order to the unruly content of positive law. The route to justice is through
reflective self-consciousness and not immersion in empirical detail. As such,
the Weinribian mode of internal theorising is the embodiment of the natural
law tradition which involves “the application of conscious human reason-
ing, critical intelligence, to the creation, interpretation and inner ordering
of a legal system so as to provide a just result.”’18

For Weinrib, therefore, the forms of justice are embedded in and make
possible the content of law. Unlike its Platonic counterpart, the Weinribian
form is not discoverable a priori. It is beholden to the historical context of
its legal content; form is content made pure and content is form made
contingent. Accordingly, legal theory must endeavour to let the light of law’s
immanent normativity shine through its substantiating content:

The task for the legal formalist is to make explicit the intelligibility that is
latent in the legal materials and thereby to indicate that from which legal error
is a deviation. Because form represents the interplay of character, unity and
genericity, the formalist will attempt to discern the essential characteristics of
a legal relationship and to disclose how these characteristics cohere to make
this relationship an irreducibly single one that can be classified with other
relationships of the same sort. The function of form is thus to draw out the
law’s immanent intelligibility by making salient the nature of unity and co-
herence both within and among legal relationships.’ 9

For Weinrib, the form of justice that inheres within the law and illu-
minates its moral coherence is the Aristotelian notion of corrective justice.
For example, the essential and interdependent qualities of ajuridical relation
in tort law are its immediacy, formal equality, causative connection and
harm-loss symmetry. This is very different from distributive justice which
judges a legal relation by reference to a standard outside itself and, therefore,
is only appropriate for political guidance in legislative law-making; distrib-
utive justice of any kind is inimical to adjudicative ideals. 20 For Weinrib,
the contemporary law of negligence, with its mutually sustaining compo-
nents of causation, duty, reasonable care and remoteness, embodies correc-
tive justice. For instance, it is not the Learned Hand cost-benefit test that

161bid. at 956.
17Ibid. at 1016.
‘8D. Sawer, “The Western Conception of Law” (1975) 2 Int. Enc. Comp. L. 33.
19″Formalism”, supra, note 10 at 963.
2O1bid. at 978-81.

McGILL LAW JOURNAL

[Vol. 34

is erroneous, but the scholarly attempt to understand it in an instrumental
manner.21 Provided it is elaborated within an internal rendering of the law
and in accordance with its justificatory dynamic, negligence is the contingent
expression of the pure form ofjustice. This, for Weinrib, necessarily follows
because “the only function of the law of torts is to be the law of torts”:22
it neither demands nor can expect further justification.

Weinrib’s attempt to apply Kantian philosophy to jurisprudence is not
new. Many different theories have drawn their inspiration from the eccentric
sage of Koenigsberg. Weinrib is, of course, aware of this and pays nodding
respect to those efforts. 23 While this lack of originality is not fatal to its

2 1United States v. Carroll Towing, 159 E 2d 169 (2d Cir. 1947). See “Negligence”, supra,

note 10 at 52-53 and “Wrongdoing”, supra, note 10 at 428.

22″Insurance”, supra, note 10 at 686.
23″Formalism”, supra, note 10 at 958 n.30. At the turn of the century, there was a spirited
neo-Kantian revival. Although it took many different forms, its shared focus was how law
could be understood as a separate sphere of knowledge through the application of a universally
valid critique. See G. Del Vecchio, The Formal Bases of Law, trans. J. Lisle (Boston: Boston
Book, 1914) at 81-82: “The concept of law must have reference only to its form … to the
logical type … inherent in every case of juridical experience … . The logical form of law is
more comprehensive than the sum of juridical propositions.”A leading figure in this neo-
Kantian jurisprudence was Rudolph Stammler (1856-1938), whose work bears a strong resem-
blance to that of Weinrib. He recognised that Kant himself had held to his idea of critical
reason with insufficient rigour when it came to law and had fallen into the old naturalist trap
of attempting to formulate a body of legal rules that would be valid for all time. Stammler
sought to establish a legal epistemology truly consistent with Kant’s larger critical ambitions.
The mark of critical philosophy is the striving to bring an order of coherent unity to what
would otherwise be the chaos of human life. Accordingly, the possibility and success of legal
theory depends on its capacity to determine what is permanently valid in the constantly chang-
ing phenomena of law. To do this, Stammler developed a juristic methodology of pure forms
which fixed the abiding and irreducible constituents of law in the flux of its transitory mani-
festations. Although form and content are inseparable and constitutive of each other, form has
theoretic primacy as the regulative and ordering mode of content. Nevertheless, to avoid Kant’s
error, Stammler took on board the positivists’ insight that law’s content is irresistibly contingent.
He insisted that legal knowledge must never part company with legal history and, therefore,
he resisted the temptation to turn legal science into political dogma; “there is not a single rule
whose positive content can be fixed a priori.” See R. Stammler, The Theory of Justice, trans.
I. Husik (New York: Macmillan, 1925) at 90. While there is one immutable form of legal justice,
there is a multiplicity of just laws. The quality of universality is attached to the method and
not to the results of its contingent application. As such, it is the task of the legal theorist to
elucidate from within the formal method that bestows the content of law with objective justice.
Stammler published a wide range of theoretical and practical work. His writings translated
into English were The Theory of Justice; “Fundamental Tendencies in Modern Jurisprudence”
(1923) 21 Mich. L. Rev. 623, 765 and 862 [hereinafter “Fundamental Tendencies”] and “Leg-
islation and Judicial Decision” (1924-25) 23 Mich. L. Rev. 362. For critical evaluations of
Stammler’s work, see R. Pound, Jurisprudence (St. Paul, Minn.: West, 1959) vol. 1 at 142-56;
M. Ginsberg, “Stammler’s Philosophy of Law” in W. Jennings ed., Modern Theories of Law
(London: Oxford University Press, 1933) 38; L. Recas~ns Siches, C. Cossio, J.L. de Azevedo
& E.G. Maynez, Latin-American Legal Philosophy, trans. G. Ireland, M. Konvitz, M.A. de

1989]

THE IMPORTANCE OF NOT BEING ERNEST

ambitions, Weinrib’s work suffers from most of the failings –
question-
begging, tautological reasoning, sterile abstraction and political indifference
that defeated earlier neo-Kantian theories; the trash can of natural law
–
writings is full of such failed attempts. Further, he makes some errors that
those neo-Kantians had avoided in their reworking of the original Kantian
insights. And, for good measure, he manages to throw in a few of his own
more modern and idiosyncratic failings. Sadly, Weinrib’s writings show that
those who ignore the past are destined to repeat it. By returning to Kant in
his efforts to resolve the problems of contemporary jurisprudence, Weinrib
takes three steps back and one step forward.

II. The Notion of Law

The first difficulty is that of question-begging. Weinrib assumes the
existence of that which he seeks to prove. He uses a methodological ap-
paratus which takes for granted the existence and identity of “law”. It is
the essence of his critical method to take a substantive idea for granted and
analyse it in its formal quality: the critical method takes “the principal
doctrinal and institutional components of … law more or less as given and
then work[s] back from them to the structure that they embody.”‘ 24 It pre-
supposes the subject matter that is to be investigated and gains its episte-
mological purchase from that fact. Obviously, however, it is impossible to
define that subject matter without already knowing what it is; identification
must precede analysis. Weinrib posits that which he intends to demonstrate.
What are the legal data to be studied? Do they include policies as well as
principles? Are political considerations part of the law? Are the purposes of
the law-makers relevant to the laws meaning? The answers to these ques-
tions are where the inquiry is supposed to lead: any study that begins there
is destined to end at the same place. This observation cuts to the heart of
Weinrib’s idealist project and demonstrates that Weinrib’s “critical analysis
… is a pseudo-method which discovers nothing, but baptises as a priori
whatever [he] is sufficiently convinced of in advance”. 25

By way of illustration, Weinrib explains how it is possible to isolate the

formal elements of a table and how this ensemble of unified properties –

Capriles & J.R. Hayzuz (Cambridge, Mass.: Harvard U. Press, 1948) at 281-90; W. Friedmann,
Legal Theory, 5th ed. (London: Stevens & Sons, 1967) at 177-86; E. Bodenheimer, Jurispru-
dence: The Philosophy and Method of Law (Cambridge, Mass.: Harvard University Press, 1974)
at 135-38 and the studies by E Geny, I. Husik and J. Wu in Stammler’s The Theory of Justice.
24″Wrongdoing”, supra, note 10 at 444. See Stammler, “Fundamental Tendencies”, supra,
25G.H. Sabine, “Rudolph Stammler’s Critical Philosophy of Law” (1932-33) 18 Cornell L.Q.

note 23 at 890-903 and Weinrib, “Formalism”, supra, note 10 at 957-66.

321 at 341.

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[Vol. 34

“elevation, flatness, hardness, typical function, and so on” 26 –
interpene-
trate with its content to make a table the determinate thing that it is. There
are at least three comments which can be made about this illustration. First,
Weinrib must be familiar with brute tableness before he can begin to discover
its formal characteristics. In order to resist this charge, he must do one of
two things. He can assume that tables as recognisable objects –
that is, as
distinct arrangements of wood or other material –
really do exist inde-
pendently of our comprehending them and our linguistic means of com-
prehending them. This assumption runs foul of two objections. It undercuts
the idealistic foundations of Weinrib’s whole epistemology and commits
him to an understanding of the relation between language and reality that
is thoroughly discredited.27 Alternatively, he can retreat to the idea that
tables are nothing more than the a priori projections of human thought and
contradict his central account of the synthetic relation between form and
content. Secondly, Weinrib recognises that the table’s form also comprises
its ‘typical function’: this seems to jeopardise quite seriously any claim to
be making an exclusively formal, internal and non-instrumental mode of
analysis.

Thirdly, Weinrib is on dangerous ground in suggesting that law is like
a table. Even a dyed-in-the-wool Kantian would be hard pressed to claim
that there is an inherent normativity to tables. It is surely the case that an
operating table and a torture table are both tables, but not of equal normative
worth; the better table is more a function of its extrinsic purpose than its
internal form. Weinrib seems to recognise the force of this very point when
he states, on a different occasion, that “without the concept of right, law
would be a merely empirical phenomenon: like a wooden head, beautiful,
but brainless, it would lack inner intelligibility. ’28 This simply underlines
the fact that he begs the very question his enquiry is intended to answer –
is law an empirical phenomenon or is it an intellectual activity? Does law
have a mind of its own or is it an instrumental artifact of human creation?
Of course, the response to this criticism is to concede that law is not like

26″Formalism”, supra, note 10 at 958-59.
271 t is not necessary to adopt a radical view of language to reject the simple idea of law as
a labelling tool. See, e.g., the works of L. Wittgenstein, Philosophical Investigations, trans.
G.E.M. Anscombe (Oxford: Blackwell, 1953) and B.L. Whorf Language, Thought and Reality:
Selected Writings of Benjamin Lee Whor, J.B. Carroll, ed. (Cambridge: M.I.T. Press, 1956).
In law, see H.L.A Hart, The Concept of Law (Oxford: Clarendon Press, 1961); J.B. White,
When Words Lose Their Meaning (Chicago: U. of Chicago Press, 1984) and C. Stone., “From
a Language Perspective” (1981) 90 Yale L.J. 1149. For a more radical understanding, see G.
Peller, “The Metaphysics of American Law” (1985) 73 Calif. L. Rev. 1151 and A.C. Hutchinson,
supra, note 14. I am not suggesting that ‘tables’ do not exist in some strong Cartesian sense,
but only that we cannot identify them as meaningful and distinct objects except within a
particular language context.

28″Reason”, supra, note 9 at 472.

1989]

THE IMPORTANCE OF NOT BEING ERNEST

a table. While this rather invalidates the explanatory force of the illustration,
it is a sensible move and one that Weinrib indirectly does make. He falls
back to the extreme idealist position that law is “an exhibition of intelli-
gence”, in the sense that, as law is a mode of thinking, “there is in law an
integration of the activity of understanding with the matter to be under-
stood.”’29 In short, the relation has a reflexive quality. But Weinrib’s attempts
at confession and avoidance compound the difficulty of his situation. With
any purposive product of human agency, it is always pertinent to inquire
what it is willed or made for.30 Whether it is an act of construction (table)
or an exercise in intelligence (law), “what it is” is related to “why it is”.
This means that law, unlike a table, is not simply something that we know,
but also (and only?) something that we do.31 And law, like a table, is some-
thing that we use as well as something that we think about. As a purposive
activity, law cannot be understood in and of itself. In short, form, substance
and function are twisted into a thread of historical narrative that can never
be fully disentangled. History can only be retold by someone and for some
purpose; its components never can be exhibited in their pristine untoldness
as Weinrib desires. There is nothing beyond history and narrative but more
history and narrative. It is not that everything is without meaning, but that
everything has meaning for us as a collective and contextualised entity.

III. Legal Intelligence

The second general difficulty with Weinrib’s theory of legal formalism
is that it all too readily collapses into empty tautologies. If the interpene-
tration of form and content is taken at face value, there is no possibility
that there can be a maladjustment between law’s content and its internal
structure. Form will always be the intelligible order of its content and content
will always be the contingent embodiment of its form; “juridical intelligi-
bility emerges from a mutually reinforcing movement between form and
content … “32 In the Weinribian scheme of things, law is and could never
be other than it is. However, this conclusion is profoundly empty and un-
interesting: the Weinribian jurist would have nothing to say about those
questions that interest us most. His conclusions would have as much cogent
force as the discovery by Moliere’s physician that opium puts people to sleep
because it contains a sedative principle. Even if it were possible to treat law
as an intelligible activity that is truly knowable only in terms of itself, that
knowledge would say nothing about law’s moral worth. When asked any

29″Formalism”, supra, note 10 at 962.
30See T. Morawetz, The Philosophy of Law: An Introduction (New York: Macmillan, 1980)

at 12-16.

31See A.A. Leff, “Law And” (1978) 87 Yale L.J. 989 at 1011.
32″Formalism”, supra, note 10 at 974.

McGILL LAW JOURNAL

[Vol. 34

“why” about the law, Weinrib will only be able to respond, like my children,
with a lame “because …”. That explanation is understandable, if inadequate,
when it comes from children, but not when it comes from a legal theorist.
Moreover, if form is taken extremely seriously, its essential abstractness
leaves its historical content and therefore its ethical value to the forces of
instrumental lawmaking. Always beholden to its experiential matter, the
moral fibre of form can never deviate from the normative substance of its
contingent content. Accordingly, for a perfectly critical Weinrib, the law’s
moral worth would consist of nothing more than being the most coherent
and consistent exemplar of whatever it happens to be at any particular time:
“[t]he formalist’s concern is not with whether a given exercise of state power
is desirable … but with whether it is intelligible as part of a coherent structure
of justification. ‘ 33 But such a formalism can tell us nothing about whether
what it is has any independent claim to our moral allegiance; moral worth
is trivialised and drained of all sensible meaning. Within such a theory,
successful or conscientious torturers are entitled to as much moral appro-
bation as successful or conscientious surgeons. Like Fuller’s attempts to
articulate an “inner morality of law”, the best that a rigorous Weinribian
formalist could offer is a morality of efficiency, which is no morality at all. 34

Consider the example of “running”. While running is something that
we do rather than think, it is also something that we can know: law is
something that we think and can know, but it is also something that we
do.35 There are many kinds of running –
sprinting, jogging, trotting, loping,
etc.. Definition involves both a question of degree and of relative purpose.
It can be difficult to distinguish one person’s fast walk from another’s slow
jog. While there seems to be a unifying notion of quickened motion, there
is always the activity of ‘running on the spot’ to comprehend and integrate.
From these many different kinds of running, what would it mean to identify
the pure form of running? What would the form of running comprise in
contrast to a kind of running? What would be gained by such an intellectual
inquiry? Surely any attempt to know running as a practice internal to itself
is futile.

If intelligibility is concerned with notions of coherence, character, unity
and genericity,36 the best that internal understanding and criticism can do
is to adjudge practices to be “confused or mistaken to the extent that they

33Ibid. at 975.
34See L.L. Fuller, The Morality of Law, rev’d ed. (New Haven: Yale University Press, 1969).
For criticisms along these lines, see H.L.A. Hart, Book Review (1964-65) 78 Harv. L. Rev.
1281; G. Hughes, “Positivists and Natural Lawyers” (1964-65) 17 Stan. L. Rev. 547; and N.
Lyons, “The Internal Morality of Law” (1971-72) Procs. Arist. Soc. 105.

35See “Law And”, supra, note 31 at 1011.
36″Formalism”, supra, note 10 at 960. See also discussion at 957ff.

1989]

THE IMPORTANCE OF NOT BEING ERNEST

‘ 37 Even if it were pos-
are inadequate expressions of the underlying form.
sible to abstract to such a formal description of running, it would be silly
to criticise a particular performance of running as being “confused” or “mis-
taken”. To have any critical bite, any meaningful account of running must
refer to some purpose or context external to the act of running. At the very
least, it might be appropriate to know whether the runner is engaged in a
sprint or a marathon in order to be able to understand, criticise or improve
on a given instance of running. In law, as in running, a purely internal
inquiry trivializes not only the object of study, but also the scholarly en-
terprise that claims to be its very apotheosis.

IV. The Hidden Agenda

Weinrib, of course, is not content to offer a legal theory that can be
dismissed as an empty tautology and a hollow morality. He is adamant that
his “version of formalism … has implications for the law’s content … [and]
is therefore distinguishable from the thinner formalism of positivism, which
contrasts the formal principle of legal validity with the material content of
law and thus makes the notion of law as such indifferent to the law’s con-
tent.” 38 However, in striving to defend himself against these charges, he
commits a more debilitating series of philosophical mistakes. What he can-
not allow to enter in plain view through the front door of his formalist
edifice, he sneaks in through the back door under cover of theoretical dark-
ness. Weinrib acknowledges that the law’s content will not always be the
perfected manifestation of its indwelling form: there will always likely be a
gap between them. But, mindful of law’s inner normativity, that gap will be
ascribable to “either error or ignorance. ‘ 39 When this is combined with the
fact that law’s form is also a form of justice and that Weinrib’s legal for-
malism is meant to have normative as well as positive force, the magnitude
of Weinrib’s claim and its indefensibility become apparent. In order to
achieve political relevance, he abandons philosophical rigour and reveals
his own political agenda and leanings.

In preferring relevance to tautology, Weinrib puts his theoretical neck
on the block of Hume’s guillotine.40 He attempts to derive a valuative con-
clusion from a factual premise. Even if there were “pure forms” of legal
thought, they would contain only so much information about what is the

371bid. at 975.
38Ibid. at 954 n. 14.
39Ibid. at 959.
40See D. Hume, A Treatise ofHuman Nature, L.A. Selby-Bigge, ed. (Oxford: Clarendon Press,
1906) at 470 and M. Black, “The Gap Between ‘Is’ and ‘Should’
(1964) 73 Phil. Rev. 165.
For a thorough survey of this failing in legal theory, see S.R Sinha, “The Fission and Fusion
of Is/Ought in Legal Philosophy” (1975-76) 21 Villanova L. Rev 839.

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[Vol. 34

case and nothing about what ought to be the case. The chasm dividing the
realms of “is” and “ought” is not logically traversable without a giant leap
of faith. Moreover, this injunction lies at the heart of the Kantian scheme
of things. Although one can sympathise with the temptation to attempt such
a crossing, one cannot sanction the tendency to turn epistemology into
politics or, more accurately, to disguise uncouth ideology in the respectable
trappings of epistemological theory. As always, the illegitimate move is not
the reliance on ideology, but the unwillingness to acknowledge it. There is
no philosophical method, no matter how hard or long any theorist searches
for it, that will relieve people of the burden of choosing and taking respon-
sibility for their own value judgments.

Another difficulty with the attempt to go beyond tautology by making
legal form into a moral idea is that sooner or later the theory will run up
against the hard facts of legal change. To put it bluntly, history has a bad
habit of confounding even the most sophisticated of philosophical theories.
While it might not be necessary for all law’s content to express perfectly its
immanent form all of the time, there must be a point at which the dis-
crepancy between form and content will become so large that the form must
begin to change, if it is not to lose contact with its content. In Weinrib’s
terms, this means that, at a certain point, “error” will become insight and
“ignorance” will become knowledge.4′ But this places him in a very real
quandary. To resist this assessment, he must revise completely his critical
method or be prepared to defend the idea of “legal form” as being completely
a priori in epistemological status and derivation. Alternatively, he can keep
faith with his critical methodology and let legal form go in whatever direc-
tion its historical content takes it.

The depth of his quandary and the unattractiveness of the alternatives
are illustrated by reference to “evil” regimes of law, such as early American
slave law and Nazi German law. If Weinrib wants to condemn those legal
systems as thoroughly immoral, as he most certainly would, the only way
that he can do so and remain true to his critical methodology is by denying
their “legal” description. 42 Yet this would commit him to the absurd view
that only a regime that is just can be called legal. Moreover, it would com-
pletely negate his claim that formalism takes law’s content as given and
merely elucidates its moral intelligibility from within.

41″Formalism”, supra, note 10 at 959.
42See Stammler, “Fundamental Tendencies”, supra, note 23 at 879-903. This criticism draws
on the celebrated debate between Hart and Fuller over the disposition of the “grudge-informer”
cases. See H.L.A. Hart, “Positivism and the Separation of Law and Morals” (1957-58) 71 Harv.
L. Rev. 593 and L. Fuller, “Positivism and Fidelity to Law – A Reply to Professor Hart”
(1957-58) 71 Harv. L. Rev. 630. For an interesting sidelight on this exchange, see H.O. Pappe,
“The Validity of Judicial Decisions in the Nazi Era” (1963) 23 Mod. L. Rev. 260.

1989]

THE IMPORTANCE OF NOT BEING ERNEST

A similar point is true, although less starkly so, of Weinrib’s discussion
of contemporary tort law. In the twentieth century, the doctrinal regime for
unintentional injuries has been thoroughly transformed. On the road from
MacPherson43 to Sindel144 and beyond, tort law has become the “battle-
ground of social theory. ’45 Even if tort law once approximated the standards
of corrective justice, it is now thoroughly dominated by talk of distributive
policies and instrumental concerns. As in other areas of the law, there has
been a marked shift in emphasis from the attribution of blame to the ap-
portionment of risk; the ascription of liability is more based on a broadly
utilitarian accounting of social welfare than on a moral definition of indi-
vidual responsibility.46 Although Weinrib is not blind to these developments,
he seems unperturbed by them. For instance, he asserts that, as its product
law has refused to follow the American shift to strict liability, Anglo-
Canadian law retains “a more pristine conception of private law” that better
embodies the pure form of tort law, namely corrective justice.47 This is
controversial on a number of grounds. Only certain parts of Anglo-Canadian
tort law rely on negligence liability and, even then, its heightened demands
often amount to those of strict liability.48 Also, large areas of Anglo-Canadian
law are founded on strict liability, such as vicarious liability and the rule
in Rylands v. Fletcher, and these pre-date the introduction of negligence as
the dominant standard of tort law. It is presumably not Weinrib’s claim that
his “universally valid” theory of formalism is only applicable to contem-
porary Anglo-Canadian law and not to American nor old Anglo-Canadian
law. While American law may be in “error” or “ignorance”, it is more than
a little embarrassing for Weinrib that vast tracts of it do not amount to “tort

43MacPherson v. Buick Motor Co., 111 N.E. 1050 (Ct. App. 1916).
“Sindell v. Abbott Labs., 163 Cal. Rptr. 132 (Sup. Ct. 1980).
4sW.P. Keeton, ed., Prosser and Keeton on the Law of Torts, 5th ed. (St. Paul, Minn.: West
Publishing, 1984). For an account of this history, see G.L. Priest, “The Invention of Enterprise
Liability: A Critical History of the Intellectual Foundations of Modem Tort Law” (1985) 14
J. Leg. Stud. 461.

46For an interesting acknowledgement of this trend by an avowedly enthusiastic supporter
of natural law and Aristotelian justice, see J. Finnis, Natural Law and Natural Rights, H.L.A.
Hart, ed. (Oxford: Clarendon Press, 1980) at 178-79. See also D. Lloyd & M. Freeman, Lloyd’s
Introduction to Jurisprudence, 5th ed. (Toronto: Carswell, 1985) at 140.

47See “Insurance”, supra, note 10 at 684-85.
48In Canada, the view is that the shift from negligence to strict liability wovld be “a com-
paratively minor modification of the existing system”, Ontario Law Reform Commission,
Products Liability (1979) at 65, and “a less radical step than … Donaghue v. Stevenson itself’,
S. M. Waddams, Products Liability, 2nd ed. (Toronto: Carswell, 1982) at 260. For example, in
Buchan v. Ortho Pharmaceutical (Canada) Ltd (1984), 8 D.L.R. (4th) 373, 46 O.R. (2d) 113,
a case involving the paralysis of a young woman through the use of oral contraceptives, Holland
J. held that, where the product is inherently dangerous, “the standard of care may be so high
that it approximates to or almost becomes strict liability”; ibid. at 386. See also Grant. v.
Australian Knitting Mills (1935), [1936] A.C. 85, [1935] All E.R. 209 and Hill v. James Crowe
(Cases), Ltd (1977), [1978] 1 All E.R. 812, [1977] 2 Lloyd’s Rep. 450.

McGILL LAW JOURNAL

[Vol. 34

law”. Of course, he might simply be telling us that, just as “the only function
of tort law is to be tort law”, 49 the only function of negligence is to be
negligence and the only function of strict liability is to be strict liability. But
this would seem to be too much of a tautology even for Weinrib to
countenance.

At the heart of this criticism is Weinrib’s mistaken insistence on con-
flating the notion of law (what is law?) with the idea of law (what is just
law?). It is a recipe for sure disaster. Yet this very failure to distinguish the
distinct epistemological and teleological dimensions of law’s form seems not
only to be part of Weinrib’s formalism, but to be its primary organising
dynamic and distinctive feature. A comparison with Stammler’s work is
profitable on this issue. Stammler maintained that through all the many
experiential manifestations of law, there runs a universal thread of law. This
is a formal and universal category of thought stamping certain contents of
consciousness with the quality of “legalness”. He rejected the traditional
view that positive law was subject to natural law and recognized that positive
law was binding and inherently legal irrespective of its goodness or badness.
For him, legality was a distinct quality and existed separately from justice;
they are mutually exclusive concepts. The suggestion that there cannot be
such a thing as an unjust law is anathema to Stammler. He holds it to be
both contradictory and confusing.

Having established a notion of law which is present in all the many
ways of thinking of law, Stammler turns his back on the epistemological
problem of law – what is law? –
and turns his attention to the teleological
question – what is just law? He moves away from isolating the common
determining characteristics of legal thought and concentrates on giving in-
dividual instances of legal thought a harmonious position within the totality
of all conceivable objects of legal thought. In other words, he sought a
universal criterion by which to judge all possible categories of legal thought
and establish the “rightness” of such thought. The pure idea of law, in
contrast to the pure notion of law, is an absolutely valid method of discov-
ering whether any particular legal thought is the right means to the right
end. Consequently, any law will be fundamentally right if it fits harmoni-
ously into the unified totality of all possible legal thought.5 0

49″Insurance”, supra, note 10 at 686.
50Stammler found this idea in “the formula of a community of men willing-freely”. See The
Theory of Justice, supra, note 23 at 153. Although a formal expression of an abstract unity, it
was intended to give direction and substance to any legal system that aspired to be just.
Nevertheless, Stammler insisted that, while the idea of law is itself absolute, universal and
immutable, the particular categories of legal thought which it considers “right” will be of a
relative character, for they are the product of a constantly changing socio-historical experience.
See “Fundamental Tendencies”, supra, note 23 at 902-03.

19891

THE IMPORTANCE OF NOT BEING ERNEST

In conclusion, and in contradistinction to Weinrib, Stammler is in-
volved in two separate formal endeavours. On the one hand, he seeks to
analyze the formal nature of those elements entering into consciousness as
legal categories and, by subjecting them to critical scrutiny, to isolate those
enduring characteristics which designate such a category of thought as “le-
gal”. On the other hand, he endeavours to construct a formal method by
which to judge the rightness of any law. In returning to Kant, or at least his
critical method as opposed to his ethical system, Weinrib ignores the very
real steps forward made by Stammler. In particular, Weinrib makes the fatal
insistence that it is not necessary to distinguish the “notional” (epistemo-
logical) from the “ideal” (teleological) in the pure form of law.

V.

Incorrect Justice

In an important sense, my previous criticisms of Weinrib’s formalism
have been clearing the ground for my third and major argument against his
theory. To give his theory any chance of operational relevance and success,
Weinrib has to introduce the socio-political values that his philosophical
method is intended to banish from legal theorising. It is ironic that, to make
his “pure” theory work at all, he has to render it impure by importing
external values to his internal theory. In short, Weinrib falls back on the
same illegitimate manoeuvre as the reviled instrumentalists. Instead of re-
vealing the law’s own inner luminescence, Weinrib resorts to a hidden bat-
tery of external floodlights that are powered by a non-legal source. In so
doing, he mistakes the light for that which is to be illuminated; law’s phos-
phorescence is only the reflected radiance of his own normative lights. While
Weinrib’s pure forms of law can offer themselves as one abstract distillation
of law’s contingent content, they cannot claim an exclusive insight nor assert
hegemonic authority. The normativity of law will not be established by
looking at legal materials alone: it is a question of moral allegiance as much
as analytical accuracy.

Although Weinrib works hard to hide the normative sleight-of-hand by
which he introduces these extraneous values, the critical eye is faster than
the theoretical hand. It is when he plays the Aristotelian card of corrective
justice that the formal game is truly up. After a lengthy statement of why
law’s content secures its intelligibility by being an adequate example of the
most abstract conceptions of juridical relationships, Weinrib slides much
too quickly into the conclusion that “[t]he first description of these abstrac-
tions can be found in Aristotle’s discussion ofjustice”.51 Yet there is nothing
in the long history of law’s content or of law’s form that dictates such a
conclusion. More to the point, there is nothing in Weinrib’s arguments that

5 “‘Formalism”, supra, note 10 at 977.

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[Vol. 34

explains the appearance of this leading player in the formalist drama. His
own summary of his argument exposes the gap in his logic:

(v) The intelligibility of law therefore involves the disclosure of the relationship
between the law’s content and the forms of justice that constitute the most
inclusive justificatory structures applicable to external relations. (vi) Two dif-
ferent forms of justice can be discerned. Corrective justice constitutes the in-
ternal rationality of transactions. Distributive justice, which mediates the
relations among persons, and between persons and things, according to some
criterion, is the internal rationality of distributions. (vii) These two forms
exhibit differing structures and are not reducible one to the other…. 52

The important stage in the argument is from point (v) to (vi). Weinrib’s
“discernment” of the two different forms ofjustice and their appropriateness
to particular legal matters is nothing more than that –
his own personal
discernment of that internal justification. Weinrib allows his prior com-
mitments to determine his philosophical conclusions. It is equally plausible
that tort law’s internal rationality could be “wealth maximisation”5 3 “re-
source egalitarianism” 54 or “capitalist exploitation”. 55 There is nothing in
Weinrib’s argument that persuades that corrective justice must comprise the
internal rationality of tort law or that it is the most morally intelligible-
explanation of tort law. It is not that the Aristotelian conception of corrective
justice cannot plausibly be posited as the abiding moral dynamic of private
law, but that it can never be declared to be the only and necessary form of
law. The most we can say by way of formal generalisation about the law of
torts is that it deals with the determination of liability in situations of risk
and injury. Any attempt to go beyond this by identifying a particular mode
of determining liability (i.e. negligence as the actual embodiment of cor-
rective justice) from among the plethora of historically specific modes (in-
tention, strict liability, negligence, etc.) must forsake its claim to universal
and formal validity. Loss of generality is the price of specificity and the cost
of generality is the loss of specificity. It is only by introducing a host of
mediating values that are neither exclusively formal nor actual that “that
which was empty of meaning acquires an apparent content and this content
acquires an apparent evidence”.5 6

Even if he could patch up his theory to meet these objections, any mode
of Weinribian formalism will ultimately founder on its constitutional ina-
bility to move from purely formal categories of thought to the determinate

Harvard University Press, 1987).

52Ibid. at 1012-13.
53See W. M. Landes & R.A. Posner, The Economic Structure of Tort Law (Cambridge, Mass:
54See Dworkin, supra, note 3 at 403.
55See R.L. Abel, “Torts” in D. Kairys, ed., The Politics of Law: A Progressive Critique of
56A. Ross, On Law and Justice (Berkeley: University of California Press, 1959) at 276.

Law (New York: Pantheon Books, 1982) at 180.

1989]

THE IMPORTANCE OF NOT BEING ERNEST

solutions of actual problems. Like all formalists before him (and, no doubt,
all those after him), Weinrib is obliged to smuggle personal preference into
his theory, while passing it off as universal insight. In this, he is no better
or worse than Fiss, Dworkin or any one else. Indeed, corrective justice is
itself a contested territory of which many different normative maps have
been drawn. For instance, whereas Richard Epstein takes it to give rise to
a regime of strict liability, Jules Coleman draws from it support for a shift
to no-fault liability.57 Each can claim a plausible degree of interpretive va-
lidity for their particular exercise in legal mapping, but none of them can
claim interpretive hegemony. The acclaimed “immanent moral rationality”
of the law amounts to Weinribian politics in classical costume: politics which
are very conservative in sweep and effect. At bottom, the law’s inner lu-
minescence is only the reflected image of an external flame that is kept
ablaze by Weinribian timber.

The general difficulty is that a purely formal analysis cannot give rise
to substantive moral entitlements and still retain its claim to universal
validity. A Kantian methodology either becomes locked into a particular
socio-historical context and loses its formal status or else it drifts free of its
socio-historical context and has no relevance to the resolution of concrete
disputes. If the illusion of justice as a category of formal intelligibility is to
be maintained, the theory will have to be pitched at such a high level of
abstract formulation that it will be dumb in the face of concrete interro-
gation. If the legal form is to be capable of giving advice on actual problems,
it will be impossible to maintain the illusion of formal validity. While Wein-
rib indulges in both of these strategies at various stages in his account of
legal formalism, he seems particularly partial to the former tactic. He ele-
vates the logical form of consistency to the political status of ideal58 and,
in the process, confuses reason with justice. While they may be related, they
are not synonymous.

VI. Determining Determinacy

In contemporary jurisprudential debate, traditional legal theorists and
their critics join issue over the question of doctrinal indeterminacy. Can the
extant law give sufficient guidance and direction in particular disputes so

57See R.A. Epstein, “A Theory of Strict Liability” (1985) 2 J. Leg. Stud. 681 and J.B. Murphy
& J.L. Coleman, The Philosophy of Law: An Introduction to Jurisprudence (New Jersey: Row-
man and Allenheld, 1984). For other tort theorists who view corrective justice as consistent
with strict liability, see G.P Fletcher, “The Search for Synthesis in Tort Theory” in M. Bayles
& B. Chapman, eds, Justice, Rights and Tort Law (Boston: D. Reidel, 1983) 97; and C. Fried,
An Anatomy of Values; Problems ofPersonalandSocial Choice (Cambridge: Harvard University
Press, 1970).
58M. Cohen, Law and the Social Order, Essays in Legal Philosophy (New York: Harcourt,

Brace and Company, 1933) at 295-96.

McGILL LAW JOURNAL

[Vol. 34

that their resolution can be claimed to be that of the law and not the lawyer
or the judge? In addressing this controversial topic, care must be taken not
to exaggerate or trivialise the opposing views. The proof that the law is not
so determinate as to admit of only one single correct answer will not signal
victory for the critics. Nor will the finding that the law is not so indeter-
minate as to permit any answer at all be considered decisive for the for-
malists. 59 For instance, a showing that the status of pamphleteers in an
airport lobby may or may not be protected under a constitutional guarantee
of Free Speech will not of itself validate the critics’ position, nor will the
observation that having three children in a family could never be a con-
travention of anti-trust laws advance the “indeterminacy” debate.

The crucial question for formalists and critics alike is whether there is
a workable range of determinacy that can allow for some interpretive move-
ment, but not be so wide as to be commensurate with the existing spread
of views in the political forum. The major critique that the formalists must
rebut is that law is different from politics in that the application of legal
reasoning to particular problems will make an appreciable difference to their
resolution. If these cases had been left to the ebb and flow of ideological
exchanges, the formalists’ argument must be that the outcome would be
different. Of course, it is not necessary for it to be shown that the result will
be different in every case; only that there would be a difference in a statis-
tically significant number of cases. 60 Also, it must be possible to demonstrate
that this difference is attributable to a reliance upon legal reasoning and not
traceable to the political preference of the legal reasoner. For the formalists’
claim to pull any epistemological weight, its proponents must show that law
is a rational discipline and not merely a convenient battery of technical
rationalizations. Further, the demonstration that any particular decision is
wrong or errant will not be enough in itself to support their arguments.
There must be room for the acceptance of a difference between being a bad
judge and not being a judge at all. To put the issue slightly differently, apart
from the language in which it is couched, what might not amount to a legal
resolution of a particular dispute?

Not surprisingly, Weinrib does not claim the law can operate at a perfect
pitch of determinacy. However, he does insist, predictably, that the extent
of the law’s indeterminacy is manageable: it can be handled without ref-
erence to the political and through resort to the internal biddings of the law

U. Chi. L. Rev. 462.

59See L.B. Solum, “On the Interdeterminacy Crisis: Critiquing Critical Dogma” (1987) 54
60For a recent example of this mistake about the critic’s charge, see A.B. Rubin, “Does Law
Matter? A Judge’s Response to the Critical Legal Studies Movement” (1987) 37 J. Legal Ed.
307.

1989]

THE IMPORTANCE OF NOT BEING ERNEST

itself.6′ Adjudication consists of an exercise in justification that represents
an internal mediation of the formal relation between law’s universal gen-
eralities and its contingent particularities. In an important way, the law’s
forms of justice determine the ambit of juridical intelligibility and mark off
the boundaries of the legal and the political. As Weinrib himself sums it
up:

The very notion of determinacy relates in different ways to the generality of
the forms and to the particularity of external interaction. Formalism compre-
hends both these ways in their interrelation. The forms of justice are both
determinate and indeterminate. They are indeterminate in that they do not
predetermine exhaustively the particular results they govern. They are deter-
minate in that they establish the bounds of coherence for the particulars that
fall under them, thus making these particulars intelligible as the sorts of things
that they are. “In determining character, unity, and genericity for juridical
relationships, the forms of justice determine all that they need to, or can,
determine as forms.” 62
Pitched at this level of abstract generality, Weinrib’s approach to in-
determinacy seems sensitive and instructive. But the proof of the theoretical
pudding is in the eating. After a substantial sampling, it has to be reported
that, as Weinrib himself says of the critics’ charge of indeterminacy, there
is only air to bite on.63 And, like the proverbial pie in the sky, it does nothing
to sustain the compelling need of legal theory for determinate nourishment.
In his long discussion of Lamb,64 he is content to sanction Watkins L.J.’s
reliance on “instinctive feeling”. This judgment offers little guidance on
how the judge arrived at his decision. There are cryptic references to “the
nature of the event or act, the time it occurred, the place where it occurred,
the identity of the perpetrator and his intentions, and responsibility, if any,
for taking measures to avoid the occurrence and matters of public policy”. 65
Watkin’s judgment is more an excuse for practical reasoning than an ex-
emplar of it. Indeed, he begins his reflection with the unapologetic confession
that he finds the doctrine of remoteness of damage to be “of very consid-
erable obscurity and difficulty”. 66 His sympathy with Winston Churchill’s
feelings about mathematics echoes what will be many readers’ experience
with Weinrib’s legal formalism:

I had a feeling about [legal formalism] –
was revealed to me –
transit of Venus or the Lord Mayor’s Show –

that I saw it all. Depth beyond depth
one might see the
a quantity passing through an

the byss and the abyss. I saw –

61″Formalism”. supra, note 10 at 1008-12.
62Ibid. at 1011.
631bid. at 1009.
64Lamb v. Camden London Borough Council, [1981] Q.B. 625. [1981] 2 All ER. 408 (C.A.).
651bid. at 421.
661bid. at 419 (quoting the editor of Salnond on the Law of Torts. 17 ed. (London: Sweet &

Maxwell. 1977).

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infinity and changing its sign from plus to minus. I saw exactly how it happened
and why the tergiversation was inevitable – but it was after dinner and I let
it go. 67

Contrary to Weinrib’s view, law is not the arbiter of conflict, but the
site for its development. Legal doctrine does not conform to any simple
internal rationality nor is it reducible to a cluster of external organising
principles. There are a host of different interpretations competing for de-
scriptive and predictive superiority, but none is able to claim final victory.
Insofar as uncontested interpretation is only possible where there is a pre-
existing and shared set of values, the competing and contradictory forces
at work in forging legal doctrine foreclose the establishment of the necessary
consensus. Accordingly, legal doctrine is not a reflected embodiment of one
indwelling and sufficient theory, but is the formal site for the attempted,
but elusive, blending and reconciliation of competing theories. The tem-
porary accommodations made are more a result of political expediency than
moral purity. Although one theory may tend to dominate and infuse the
law with its guiding principles, a competing theory will constantly challenge
it and provide a debilitating set of counter-principles. At times, the tension
will precipitate doctrinal crisis; at other times, the friction will be subdued
and relatively untroubling. Yet, muted or manifest, it fuels and informs
doctrinal development. The particular trajectory charted and followed will,
at least in part, be a function of the larger historical forces that impinge on
the legal and judicial enterprise.68

Consequently, in this general sense, law is another arena for the stylised
struggle over the terms and conditions of social life. Determinacy and in-
determinacy are polarities on the plain of praxis. While theory has to try
and disentangle them, our existential condition means that we must ex-
perience and embrace them simultaneously. While we can never erase or
deny the drive to wrestle with this predicament, we must remain alive to
the evanescence of any proposed resolution. Whereas Weinribian philoso-
phy seeks closure and attempts to privilege the passing as the permanent,
a more vigorous commitment to democracy might allow a continuing and
popular engagement with the struggle for meaning. While that struggle can
never be brought to a final conclusion, its irrepressibility can be recognized
and not disguised as a truth in the service of remote philosophical ideals.

67Ibid. (quoting Winston Churchill).
68This is not to downplay the importance of these forces or the need to explore their precise
operation. However, the focus of this paper is on the doctrinal consequences of their impact.
For a general study of these wider issues, see J.A.G. Griffith, The Politics of the Judiciary, 3rd
ed. (London: Fontana, 1987) and A. C. Hutchinson, supra, note 14.

1989]

THE IMPORTANCE OF NOT BEING ERNEST

VII. A Risky Business

To demonstrate that Weinrib’s ideals do not flow inexorably from the
law does not dispense entirely with their claim on jurisprudential attention.
While this robs them of their objectivity and authority, his theory must still
be judged as another contingent proposal for making sense of the world and
the possibilities for its remaking. Consequently, I will demonstrate the po-
litical interests that drive and are served by Weinrib’s devotion to the sup-
posed virtues of corrective justice. Furthermore, I will show that an
explanatory account of tort law, based on Weinribian formalism, does not
begin to make any real sense of the existing law of negligence, the prevailing
conditions of contemporary society and its ecology of accidents. It is neither
a sound description nor worthy prescription. By imposing an individualistic
scheme of tortious justice, Weinrib denies the collective nature of risk-
creation and the potential for collective and egalitarian re-distribution of
risk-exposure. 69

Weinrib’s understanding of tort law as a device for corrective justice is
restorative and individualistic in focus and function. It looks to the im-
mediate relation of an injuring defendant and an injured plaintiff and imag-
ines them to be formally equal in their tortious transaction; it is a structural
and not a substantive inquiry. The symmetry of the relationship is to be
found in the congruence of the act of the defendant being wrongful and the
injury of the plaintiff being caused by that act. Accordingly, “[t]he function
of the court is to preserve the initial equality by transferring from one party
to the other the fixed quantity that marks the deviation from the transac-
tion’s implicit rationality. ’70 Each of these components –
formal equality,
individual immediacy, factual causation, and quantifiable loss –
deserve
to be treated separately.

For Weinrib, the need to treat the parties as antecedently equal flows
naturally from the formal basis of his legal theory. To ensure that extrinsic
factors, more appropriate to questions of distributive justice, are not taken
into account, he is adamant that the judge in a tort case must ignore “such
factors as the wealth, virtue or merit of the interacting parties”. 7 1 As an
account of legal practice, this injunction tells only half the story. While tort

69For a fuller account of these possibilities, see R.L. Abel, “A Socialist Approach to Risk”
(1982) 41 Mod. L. Rev. 695 and A.C. Hutchinson, “Beyond No-Fault” (1985) 73 Cal. L. Rev.
755.70″Formalism”, supra, note 10 at 980. This is more fully developed in “Negligence”, supra,
note 10 at 38-49 and “Wrongdoing”, supra, note 10 at 429-35.
71″Formalism”, ibid. at 997. See “Insurance”, supra, note 10 at 693. Although Weinrib insists
that he treats individuals as social beings, situated in real historical contexts, this only applies
when trying to understand them as “free-willing” persons. See “Reason”, supra, note 9 at 503-
04.

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law does not make consistent reference to all these characteristics, especially
wealth, 72 it does recognise that it would be cruelly unjust to ignore the fact
that some people, like the blind or handicapped, 73 are unable to meet the
usual standards of care and that it is appropriate to adjust the standard in
those instances. Furthermore, the law recognises that the normal damage
rules will have to be mitigated for those, like haemophiliacs and schizo-
phrenics, 74 who are more susceptible to injury. Furthermore, as Weinrib
himself recognises and relies on at other times, a defence of necessity is
available in certain circumstances. 75 Consequently, his failure to explain
these many deviations from his “formal equality” is doubly troubling. It
provides further illustration of the dissonance between law’s content and
its organising form. But, more importantly, it seems to bear witness to the
crass disregard that corrective justice shows to those who are less fortunate
in our society.

This insensitivity speaks more generally to the deficiency of a formal
standard of justice. To treat those who are substantively unequal as though
they were equal is itself a form of crude discrimination. Such a treatment
not only feeds off the underlying inequality, but actually perpetuates it in
the name of equality. While the realms of corrective and distributive justice
might be hermetically sealable in theoretical discourse, they must necessarily
interact in the practical world. What I do is conditioned by what I have
and what I have is conditioned by what I do. Even if the impact of resto-
rations through corrective justice is de minimis in particular instances, its
accumulated effect across a range of particular instances will be substantial
and regressive: the haves will have more and the have-nots will have even
less. 76 For instance, the refusal of the courts to take into account the existence
of private collateral benefits in the computation of loss works a continuing
and worsening disadvantage to the poor; the distribution of insurance is

72As a general rule, the tortfeasor’s financial resources do not lessen the standard of care
expected of the poor or increase that expected of the rich. The existence of rare exceptions,
for instance, in trespassing, e.g., British Railways Board v. Herrington, [1972] A.C. 877, [1972]
1 All E.R. 749 (H.L.) underlines the generality of the common understanding..

73See, e.g., Haley v. London Electricity Board, [1965] A.C. 778, [1964] 3 W.L.R. 479.
74See, e.g., Dulieu v. White & Sons, [1901] 2 K.B. 669 and Bishop v. Arts and Letters of

Toronto (1978), 83 D.L.R. (3d) 107, [1978] 18 O.R. (2d) 471 (H.C.).

75See “Rescue”, supra, note 10 at 273-74. Indeed, Weinrib’s whole discussion of the duty to
rescue is largely at odds with many of the points he makes about the “corrective” nature of
tort law in “Formalism”, supra, note 10 at #978-81.

76This is the standard critique made of Posner which notes his loaded assumptions and the
nature of his futile attempt to divorce questions of efficiency from the distribution of back-
ground entitlements. See C.E. Baker, “The Ideology of The Economic Analysis of Law” (1975-
76) 5 Phil. & Publ. Affs. 3 and D. Kennedy, “Cost-Benefit Analysis of Entitlement Problems:
A Critique” (1980-81) 33 Stan. L. Rev. 387.

1989]

THE IMPORTANCE OF NOT BEING ERNEST

based as much on ability to afford it as it is on common prudence. 77 When
the fact that exposure to risk is also revealed as bearing a close relation to
wealth (in that this usually affects conditions of work, location of home,
etc.),U8 the political biases of Weinrib’s scheme become evident. 79

It will be remembered that, in Aristotle’s Athens, justice was “some
sort of equality”. 80 Formal equality was applied to everyone provided that
they were not women, slaves or rank-and-file soldiers: it was fully consistent
with political privilege and social hierarchy.81 But it is not only those who
might be excluded that should raise our ire; it is those who are included in
the ambit of formal justice that should be a cause for concern. The modem
law of tort makes little distinction between human persons and corporate
persons in determining the allocation of available rights and duties. 82 While
Weinrib complains about that fact when it comes to the division of re-
sponsibility between private persons and public authorities in the rescue
situation, 83 his formal scheme of tort liability proceeds generally without
being encumbered by such niceties. Surely it is stretching things too far even
in the rarified realm of philosophic speculation to equate corporations with
“Kantian moral persons”, “noumenal selves” and “freely purposive
beings. ‘ 84 To ignore the superior potential of corporations to create and
avoid risk is to take a position of harsh indifference to the real people who
are injured and suffer.

At the root of Weinrib’s theory is a profound commitment to an in-
dividualistic understanding of the world that leaves no space for, and there-
fore gives no value to, the formative social context in which risk arises and
accidents occur. The Kantian understanding of moral personality is the

Nicolson, 1987).

77P.S. Atiyah, Accidents, Compensation, and the Law, 4th ed. (London: Weidenfeld and
78See, e.g., Sturges v. Bridgman (1879), 11 Ch. D. 852 and Halsey v. Esso Petroleum Co.,

[1961] 1 W.L.R. 683, [1961] 2 All E.R. 145 (Q.B.).

791n making this claim, I do not intend to challenge the bonafides of Weinrib in developing
this formalistic theory: I simply point out its political ramifications rather than suggest dubious
motives.

80Politics, BK.III, 1281b.
8 Ibid. at Bk.III, 1284a and Bk.I, 1253b-1255b and 1259b. Kant himself took a similarly
elitist attitude and, for instance, refused to confer full citizenship on farm labourers. See Fried-
mann, supra, note 23 at 171. Although slightly more progressive, Stammler held the prevailing
Victorian attitudes about marriage and divorce. See Stammler, A Theory of Justice, supra, note
23 at 450-56.
82See, e.g., J.G. Fleming, The Law of Torts, 7th ed. (Sydney, Australia: Law Book Co., 1986)
at 3-4.83See “Rescue”, supra, note 10 at 277-78.
84″Formalism”, supra, note 10 at 997-98.

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bedrock of the abstract individualism from which modem liberalism still
draws much of its support or, at least, inspiration.8 5 It is the idea that it is
possible and desirable for all individuals, as self-determining and free pur-
posive beings, to celebrate their formal equality in “their abstraction from
all particularity”. 86 As such, the canons of corrective and distributive justice
carry forth in the noumenal rather than the phenomenal world. The criti-
cisms made of this Kantian notion of moral personality are too numerous
and too well-known to warrant further rehearsal.87 Instead of concentrating
on its theoretical failings as a socio-philosophical or political ideal, I will
focus on the practical shortcomings in its application by Weinrib to the law
of torts.

For Weinrib, the judge is constrained to “see controversy through the
prism of bipolar argument. ‘ 8 8 Rather than lament this institutional weak-
ness, he attempts to turn it to formal advantage. In a move similar to that
of deriving form from a given content, Weinrib seems to assume the identity
and existence of a particular defendant and plaintiff and only then proceeds
to ask if their juridical relation bears the symmetrical hallmarks of formal
justice – did the defendant’s wrongdoing cause harm to the plaintiff? The
problem is, as Finnis has noted, that corrective justice is “parasitic on some
prior determination of what is to count as … a tort. ‘ 89 The pressing difficulty
is whether it is possible and desirable to extract two “persons” from their
social context and to attribute causation and wrongdoing without reference
to the wider setting of their “transaction”. For example, in an accident which
involves a car overturning after cornering fast, the ascription of cause and
responsibility will depend upon the perspective taken. From the driver’s
perspective, the accident could have been avoided by driving more carefully.
From the municipality’s perspective, the accident could have been avoided

85See, e.g., J. Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971)
at 251-57 and J. Rawls, C. Fried, A. Sen & T.C. Schelling in S.M. McMurrin, ed., Liberty,
Equality, and the Law: Selected Tanner Lectures on Moral Philosophy (Salt Lake City: Uni-
versity of Utah Press, 1987). The whole thrust of Rawls’ theory is to strip people down to their
essential moral identity and to elaborate an original position as “the point of view from which
noumenal selves see the world.” Ibid. at 255.

86″Formalism”, supra, note 10 at 997.
87See R.M. Unger, Knowledge and Politics (New York: The Free Press, 1975); A. Macintyre,
After Virtue: A Study in Moral Theory, 2d ed. (Notre Dame, Indiana: University of Notre
Dame Press, 1985); and M.J. Sandel, Liberalism and The Limits of Justice (Cambridge: Cam-
bridge University Press, 1982).

88″Formalism”, supra, note 10 at 989. Another neo-Kantian, A. Del Vecchio, makes a very
similar observation; see (1955) The Philosophy of Law 71 (“the concept of bilaterality is the
key to the vault of the juridical structure”). Although Weinrib is right to note the limited bipolar
vision of traditional courts, there is a well-documented account of the developing shift to a
more public-oriented viewpoint. See A. Chayes, “The Role of the Judge in Public Law Liti-
gation” (1976) 89 Harv. L. Rev. 1281.
89Finnis, supra, note 46 at 178-79.

1989]

THE IMPORTANCE OF NOT BEING ERNEST

by constructing a safer road surface. From the car manufacturer’s perspec-
tive, the accident could have been avoided by designing a more stable ve-
hicle. 90 The isolation of particular transacting parties will not be self-evident
but will depend upon interest and standpoint; an internal analysis is sec-
ondary to an external characterization.

A demonstration that the abstraction of the parties from their social
context is troubling is best achieved through a critical examination of the
ideas of “cause” and “loss” that ground Weinrib’s larger moral claims. In
order to get his theory of tort law off the ground, Weinrib has to show that
it is meaningful to argue that “factual causation establishes [an] indispen-
sable nexus between the parties” 91 in the sense that it can be fixed without
resort to any corrupting policy considerations that are extraneous to the
individual parties’ immediate “transaction”. If there are such factors present
in the fundamental determination of cause, his whole theory will be revealed
to stand on the proverbial stilts. Like the late nineteenth century writers,
Weinrib desperately needs a notion of objective causation if he is to keep
faith with his defence of tort law as apolitical and non-distributive. 92 As the
vast literature on the subject evidences, 93 this is far from a self-evident
proposition. Rather than being unique and dichotomous, the world of risk
and accidents is probabilistic and continuous. In the modern world of Agent
Orange, Bhopal, DES, Chernobyl, the Dalkon shield, and Three Mile Island,
the traditional “but-for” test is hopelessly inadequate. The unfathomable
interaction of different causes prevents the isolation of particular causes for
particular injuries: the best that can be achieved is a general correlation of
acts and consequences in terms of their statistical aggregation. The attri-
bution of responsibility is simply a conclusion based on a rebuttable hy-
pothesis of probabilistic generality.

Although seized upon to support all manner of economic theories, a
still valid insight of Coase’s (in)famous article is that to look for moral
guidance in the legal doctrine of causation is to look in the wrong place.94

90See R. Collingwood, ‘On the So-Called Idea of Causation” (1937-38) Procs Arist. Soc. 85

at 96.

9 “Negligence”, supra, note 10 at 38. See also “Wrongdoing”, supra, note 10 generally.
92See M. Horwitz, “The Doctrine of Objective Causation” in The Politics of Law: A Pro-

gressive Critique, supra, note 55 at 201.

93For some of the most insightful work, see H.L.A. Hart and A. M. Honore, Causation in
the Law (Oxford, Clarendon Press, 1959); D. Rosenberg, “The Causal Connection in Mass
Exposure Cases: A ‘Public Law’ Vision of the Tort System” (1984) 97 Harv. L. Rev. 849; R.B.
Lansing, “The Motherless Calf, Aborted Cow Theory of Cause” (1984-85) 15 Env. L. 1; and
Pincus, “Making Progress on the Causal Chaingang” (forthcoming in Osgoode Hall L.J.).
94R.H. Coase, “The Problem of Social Cost” (1960) 3 J. Law & Econ. 1. For a powerful
(re)reading of Coase from an unashamedly left-wing perspective, see P. Schlag, “An Appreciative
Comment on Coase’s ‘The Problem of Social Cost’: A View from the Left” [1986] Wis. L. Rev.
919.

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Reliance on a freestanding and background natural order of things is mis-
placed. In Coase’s example of the farmer and the railroad, the spark-emitting
railroad no more caused the fire than the decision of the farmer to grow
corn where he did. It is not a question of cause, but the apportionment of
responsibility for loss and its future avoidance in unfortunate situations of
competing resource use. This does not lend itself to a factual solution, but
demands difficult value judgments. The idea that people, as separate indi-
viduals, are fully in control of their own lives and that injury, with individual
care and foresight, can be eliminated from those lives is mistaken. It is a
self-serving myth that fosters the idea that an unwavering commitment to
pure reason, as embodied in law, is the route to personal safety. The reality
is that “the dream of an order that fundamentally simply protects or rep-
licates some natural pre-collective set of relations … is shattered when one
realizes that more and less expansive definitions of cause reorder relative
social power.”’95

Even the law has begun to recognise these difficulties and has started
to replace the “but-for” test with one of “increased risk”.96 However, this
legal standard for proving causation must inevitably lead to questions about
the nature and size of risk, burden of proof and the like. These are indub-
itably issues of a policy character and cannot be divined, as Weinrib might
have us suppose, from the formal, internal or factual circumstances of the
putative victim and alleged tortfeasor. Indeed, and not without irony, one
of the best articulations of that assessment comes from Weinrib himself. In
an article-length discussion of the McGhee case,97 he accepts that the re-
quirements of corrective justice not only must on occasion give way to
pressing considerations of fairness and policy, but that the causal test is
never “impervious to the considerations of policy, purpose and value”. 98
As Weinrib concludes:

The dominance of the ‘but for’ test is itself a result of the urge to banish
valuative considerations from the realm of cause in fact. This test is the most
mechanical method of handling cause in fact, and therefore it seems to be the
most suitable for excluding the considerations of policy which by their nature
are too flexible and delicate to be susceptible to an automatic form of treatment.

95M. Kelman, A Guide to CriticalLegal Studies (Cambridge, Mass: Harvard University Press,
1987) at 107 (emphasis in the original). For a detailed elaboration of how the idea of factual
causation and the belief in its realisation is tied to an individualistic world-view, see R.A.
Baruch Bush, “Between Two Worlds: The Shift from Individual to Group Responsibility in
the Law of Causation of Injury” (1986) 33 U.C.L.A. L. Rev. 1473.

96See Sindell v. Abbott Labs, 607 P. 2d 924 (1980) and Allen v. U.S., 588 E Supp. 247 ( Dist.

Crt. 1984).

97McGheev. National Coal Board (1972), [1973] 1 W.L.R. 1, [1972] 3 All E.R. 1008 (H.L.)
in which the plaintiff proved causation by showing that the defendant “materially increased
the risk of injury”; ibid. at 1017.

98″Causation”, supra, note 10 at 533.

1989]

THE IMPORTANCE OF NOT BEING ERNEST

But it is noticeable that even here the purely factual approach breaks down
on occasion, and it is necessary, whether explicitly or not, to supplement the
mechanical formula with an infusion of policy. As often in the law, the test
must be applied with reference to the purposes which the test must serve. 99

Weinrib’s idea of “loss” can be dealt with more briefly. Again, as a
foundational idea in his theory, it must be identifiable independently of any
external policy or else it will confound his formalist ambitions. To this end,
loss is defined as “the fixed quality that marks the extent of the deviation
from the transaction’s implicit rationality”.100 It will be a very rare occur-
rence in which the defendant’s gain is equivalent to the plaintiff’s loss. In
most tortious accidents, the plaintiff’s loss will far exceed the defendant’s
gain. Indeed the defendant’s gain will largely be notional in most circum-
stances; it might be the saving in ex ante accident avoidance costs. As long
as losses are thought of in terms of personal injury or simple property
damage, there seems to be little serious to worry about or, at least, the
problem seems relatively mute and manageable. However, as soon as the
law moves toward allowing recovery for financial loss, the policy-basis of
any determination as to what is a “loss” becomes clear.101 The attempt to
identify “a fixed quantity”, in terms of a departure from a given distribution
becomes even more elusive; such amounts will not be found, but only cre-
ated. The question of what is a recoverable loss is one of the most vexatious
and topical problems in contemporary Anglo-Canadian (and American?)
tort law. Is there recovery for pure economic loss? 102 Can a tort claim be
made for expectancy damages? 103 If so, when?

These are fascinating and difficult issues, but they cannot be resolved
by a purely formal reflection on the litigating parties’ juridical relation.
Weinrib presupposes an uncontroversial recognition of loss when there are
only controversial choices to be made. Answers to these questions will not
be forthcoming from a formal meditation on the immediate transaction
between plaintiff and defendant, but demand an external consideration of
the nature, worth and purpose of the transaction. Consequently, not only
can his theory not end without resort to political values, it cannot even
begin without reliance on those “impure” elements of distributive justice
that his theory is devoted to eliminating. His initial substantive premises
scuttle his formalist voyage of tort discovery before it leaves the launching
pad.

99Ibid. at 530. Whether or not Weinrib would be of a different view today does not invalidate
this critique. I believe that Weinrib was right then and that his observations remain so today.

100″Formalism”, supra, note 10 at 980.
o01Weinrib reveals as much himself, when he takes Coleman to task for favouring a very

different interpretation of corrective justice. See “Wrongdoing”, supra, note 10 at 434-35.

’02SeeJuniorBooksLtdv. Veitchi Ltd (1982), [1983] 1 A.C. 520, [1982] 3 All E.R. 201 (H.L.).
103See Ross v. Caunters, [1980] Ch. 297, [1979] 3 All E.R. 580.

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VIII. Ghost-busting

The flight to philosophical abstraction is an escape from democratic
responsibility. Despite traditional theorists’ wishes and work to the contrary,
there is no way to escape the politics of our finetude and land in an infinite
realm of pure reason that secures us against the need to make difficult and
always contestable choices. Legal theory is the opiate of the lawyering
masses. No ideology, including Weinrib’s, can be formally necessary as well
as materially adequate to relieve us of the painful responsibility of knowing
what to do. Weinrib and all legal theorists would do well to heed Kant’s
admonition that “out of the crooked timber of humanity, no straight thing
can ever be made”. 0 4 If society is to make good on itself, it must resist the
temptation to pay homage to the Kantian deities of Coherence and Reason.
Intelligibility is ours, not a gift from the gods. As Dewey put it, “A [person]
is intelligent not in virtue of having reason which grasps first and inde-
monstrable truths about fixed principles, in order to reason deductively from
them to the particulars which they govern, but in virtue of [his or her]
capacity to estimate the possibilities of the situation and to act in accordance
with [his or her] estimate.” 10 5

In a sense, this essay has merely shown what many thought already to
be obvious: that formalism was killed and buried long ago. In fact, Felix
“The Science of Transcendental Nonsense.”‘ 06
Cohen wrote its epitaph –
Although its proponents maintain that it “has always refused to stay
dead,”‘ 0 7 reincarnation is no more likely in jurisprudence than in life. Its
revival today in classical guise makes formalism no more real or convincing
than it ever was. It is little more than an apparition that preys on the troubled
mind of the contemporary lawyer which will seemingly take seriously any-
thing in order to satisfy its desire for cognitive calm. There is no need to
be fooled or intimidated by its Kantian-Aristotelian guise. Weinrib’s theory
of legal formalism is a sophisticated, but equally flawed effort to recycle the
failed theories of bygone days. While antiquity is not a weakness, it is not
a strength either. Weinrib’s hope seems to be that the modern legal mind

IO4See I. Kant, “An Idea for a Universal History from a Cosmopolitan Point of View”, in
Immanuel Kant: Philosophical Writings, E. Behler, ed. (New York: Continuum Publishing,
1986).

105J. Dewey, The Quest for Certainty (New York: Minton, Balch and Company, 1929) at 213.
106See FS. Cohen, “Transcendental Nonsense and the Functional Approach” (1935) 35

Colum. L. Rev. 809 at 821.

l07″Formalism”, supra, note 10 at 951.

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THE IMPORTANCE OF NOT BEING ERNEST

will be impressed by his subtle combination of historical nostalgia and in-
tellectual amnesia; the glory of past days will be recaptured and their in-
convenient transparency forgotten. The appropriate response to such
jurisprudential fantasizing is not an awe-induced toleration, but a defiant
and decisive act of ghost-busting. 10 8

080tto von Gierke put it quite nicely when he said that “if [the spirit of natural law] is
denied entry into the body of positive law, it flutters around the room like a ghost, and threatens
to turn into a vampire that sucks the blood from the body of Law”. 0. von Gierke, Natural
Law and the Theory of Society: 1500 to 1800, trans. E. Barker (Cambridge, Cambridge Uni-
versity Press, 1958) at 226.