Vol. 11 No. 5 (May 2001) pp. 257-260.

EQUALITY, RESPONSIBILITY, AND THE LAW by Arthur Ripstein. Cambridge:Cambridge University Press, 1999. 307 pp. Cloth $64.95. ISBN: 0-521-58452-3.

Reviewed by Kenneth Einar Himma, Department of Philosophy, University of Washington.

In EQUALITY, RESPONSIBILITY, AND THE LAW, Arthur Ripstein justifies the content of tort and criminal law on the strength of the view that such content reflects what fair terms of interaction require in the way of allocating instances of misfortune in criminal and civil disputes. Ripstein's theory attempts to show how fair terms of interaction take equality, responsibility, and reciprocity into account in allocating misfortunes and how tort and criminal law define such terms.

In the first part of the book, Ripstein considers the issue of how to allocate misfortunes that arise when parties fail to exercise appropriate care. Chapter 2 examines two libertarian approaches. Ripstein rejects the voluntarist view that any loss not resulting from intentional force or fraud should be left with the plaintiff because this view allows "each person to unilaterally set the terms of interaction with others" (p. 31); for whether a person is liable for a loss depends on what she knows and intended with respect to her behavior. Ripstein rejects the causalist view that losses should be allocated to whomever is causally responsible because both parties to a negligence dispute are ALWAYS causally responsible; had the plaintiff stayed home, she wouldn't have slipped on a banana peel carelessly left on the floor by the defendant.

In Chapter 3, Ripstein develops the idea that liability for the unintended consequences of one's behavior should be theoretically grounded in terms that assign risk and injury ownership on the basis of fault. An adequate theory of liability must distinguish those third-party risks for which the actor is liable (i.e. those the agent owns) from those for which the actor isn't liable in a fair and principled way. This requires that the interests of liberty and security be balanced in a way that respects the equality of all the parties.

On Ripstein's view, only a system of negligence liability that allocates ownership of risks in terms of fault satisfies this constraint. Theories that allocate risk ownership by comparing the cost of precautions to the cost of injuries fail insofar as they allow a defendant to take fewer precautions to protect less affluent potential plaintiffs than to protect more affluent potential plaintiffs (who stand to lose greater income if injured). In contrast, the fault system distinguishes those risks the agent owns from those the agent doesn't in terms that respect the "interests that ALL have in both liberty and security" (p. 55; emphasis added). The fault system, thus, respects the equality of the parties by evaluating liability in terms of the reasonable person who "moderates his or her actions in light of the legitimate claims of others" (p. 56).

In Chapter 4, Ripstein considers Stephen Perry's influential attempt to ground the foreseeability requirement for negligence liability in a general theory of moral responsibility. On this view, the

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foreseeability of injury is a necessary condition for negligence liability because "an agent is only morally responsible for things that he or she can foresee" (p. 95). Ripstein argues that Perry's view cannot be reconciled with the fact that tort law holds agents liable, not for consequences they actually have foreseen, but for consequences that could have been foreseen by a reasonable person: "A person's agency is expressed in her ACTUAL exercise of her capacities. That she, or some other, hypothetical person might have expressed them differently does not change what of her was expressed in the deed" (p. 100). On Ripstein's view, foreseeability matters, not because it is a general condition of agency, but because it is reasonable and hence required by fair terms of interaction.

The second part of the book attempts to determine what fair terms of interaction require in the way of criminal principles and practices. In Chapter 5, Ripstein offers a distinction between behavior that is criminal and behavior that is merely tortuous. At the most general level, Ripstein sketches the distinction in terms of the difference between TAKING a risk and CHOOSING a risk. Whereas negligence merely involves the failure to satisfy public standards of reasonableness, criminal acts are "those acts in which one person SEEKS to substitute private rationality for public standards of reasonableness" (p. 134; emphasis added).

Conceiving of the relation between negligence and criminality in this way enables Ripstein to plausibly characterize crimes as "torts with something added." What crimes add to torts, on Ripstein's view, has nothing to do with the gravity of the consequences, for "[a] carelessly discarded cigarette may have the same consequences as deliberate arson" (p. 148). Rather, what crimes add to torts is insult to injury; a criminal act denies the significance of the victim's rights by trading them away to the criminal's advantage. Thus, punishment is needed, on Ripstein's view, to vindicate the victim's rights: "shift[ing] only the factual costs of crime back to the criminal would leave the criminal's claim to subject the other's rights to his own will, and so the victim's rights would be as the criminal claims them to be" (p. 149).

This characterization contributes to Ripstein's defense of the traditional practice of punishing unsuccessful attempts less severely than successful attempts in the following way. As has often been observed, unsuccessful attempts seem no less culpable than successful attempts inasmuch as what distinguishes the two is purely a matter of luck. Ripstein points out in Chapter 7 that unsuccessful attempts merit punishment because, like any other culpable act, they involve "the substitution of private rationality for public reasonableness" (p. 233). But Ripstein argues that they deserve less punishment than successful attempts because "there is no wrong to right, and so the normal basis for punishment is absent" (p. 242). On Ripstein's view, a culpable act wrongs the victim only if it succeeds in violating some right.

The remaining chapters are also concerned with fleshing out Ripstein's analysis in response to various challenges to traditional legal practice. Chapter 6, for example, is concerned to consider the extent to which mistakes of law and fact ought to insulate a criminal defendant from liability; on Ripstein's view, only reasonable mistakes of fact should serve to insulate a person from criminal liability. Chapter 8 is concerned with defending traditional practice against Evgeny Pashukanis's Marxist critique of "the legal form." Chapter 9 extends the general approach to

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address problems that arise in the context of distributive justice.

Ripstein is widely regarded as a rising star in legal theory, and this book makes it easy to see why. Like the economic theorists, Ripstein offers what can plausibly be characterized as a unified theory of substantive law. (Indeed, after reading the book, it is not difficult to see how Ripstein's approach could plausibly be extended to explain and justify contract law.) But Ripstein employs the reductivist strategy to surprising advantage, avoiding the conspicuous difficulties that plague economic theories of law. Unlike many economic theorists, Ripstein negotiates the challenging terrain that separates conceptual, descriptive, and normative theories with impressive ease and self-assurance. The result is a theory that is both provocative and plausible.

Even so, Ripstein leaves a good bit of room for rival theories. For example, while Ripstein's analysis would certainly succeed, if sound, in justifying the current practice of punishing unsuccessful attempts less severely than successful attempts, the claim that only the latter violate the victim's rights is somewhat unnatural. It is true, of course, that we do not say that an unsuccessful murder attempt violates the victim's right to life; common usage seems to entail that the right to life is violated only if the victim dies as a result of a culpable act. But insofar as the right to life, as a conceptual matter, is constituted by a set of obligations that bind other persons, it seems reasonable to think that one person's right to life obligates other persons, among other things, not to shoot at him or her. If this is so, then an unsuccessful murder attempt breaches an obligation that constitutes part of the right to life and hence gives rise to a wrong that needs to be righted.

Indeed, the subjectivist can go further and argue that since the success of an attempt depends on matters beyond the agent's control, it is the murder attempt itself (i.e., without regard to its success) that give rises to the only wrong that arises under the right to life. Thus construed, the right to life obligates a person not to intentionally or knowingly engage in behaviors that have a high risk of ending a person's life; an unsuccessful attempt is as much a breach of this obligation as a successful attempt. But if all this is correct, then it is unjust to punish unsuccessful attempts less severely than successful attempts because such a practice is based on a distinction that is morally arbitrary.

Similarly, Ripstein leaves an appreciable opening for Perry to defend his view that the foreseeability requirement for negligence liability arises out of a general conception of moral agency. Whether or not any particular person counts as a moral agent depends on whether she instantiates two morally significant capacities: (p. 1) some threshold ability to understand the difference between right and wrong and (p. 2) some threshold ability to control her behavior. Insofar as moral agency is defined in terms of having these threshold abilities, it makes sense to think of the exercise of moral agency as defined not only by what the agent does with these capacities, but also by what the agent doesn't do with them. Failure to exercise these capacities when they are morally required, as occurs when a moral agent fails to anticipate what is foreseeable BY SOMEONE WHO HAS THESE REQUISITE CAPACITIES, is itself an expression of moral agency for which the agent is legitimately held accountable.

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Arthur Ripstein's EQUALITY, RESPONSIBILITY, AND THE LAW is a well written, well argued defense of traditional principles of criminal and civil law that is must reading for anyone wanting to understand the underlying structure of our legal practices. It represents an important contribution to the literature.