Form and function in the theory of private law

• Author: Ernest J. Weinrib
• Position: Professor of Law and Special Lecturer in Classics, University of Toronto, Canada
• Pages: 345-365

FOR M A ND FU NCT ION IN THE TH EOR Y O F P RIVA TE

LAW

Ern est J. Weinrib*

Priv ate law is a fam iliar practice, its institutional structure well

established and its fundamental concepts w ell k nown. Yet its nature

remains a ma tter o f controversy among legal theorists. In this lecture

I want to outline w hat I consider to be the basic divid e within this

controversy. The dominant view sees private law as a legal apparatus

that serves certain independently justifiab le functions. Theorists from

within this view differ in their sp ecification of the relevant functions

(some fav our wealth maximization, others the promo tion o f social

solidarity, oth ers cheapest cost-avoidance, others compensa tion, and

so on) and they also differ in the tradeo ff to be ma de b etween these

func tions, but they rega rd analysis in terms o f indep enden tly

justifiable func tion as inescapable . The alternative view, which I

favour, focuses instead on the form of the relationship be tween the

parties. The idea o f form is seen as a way of elucid ating the

imm anently rationa l structure of private law, and private law is

rega rded as intelligible to the extent that it can be u nder stood as a

man ifestation o f that structure. This contrast b etwe en form and

function provides the theme o f my remarks.

An incid ent at which I was present may briefly illu strate the

functionalist approach. Several years ago Richard P osner, a pioneer

Profe ssor of Law and Special Lecturer in Classics, University of Toronto,

Canada . This paper was deli vered as the Fifth Anthony Bland Memorial

Lecture at the Law Faculty, University of the West Indies, Cave Hill Campu s,

Barbados, West Indies.

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346 Caribbea n Law Review

in the ec ono mic analysis of law, g ave a paper a t a Law and

Econ omic s Workshop at the University o f Toronto. On this occasion

his pap er pu rported to show how intent fits into the econ omic

conce ption o f tort la w as a regime of cost-justified preca ution s.

Dra win g on the ide a tha t precautions sh ould be taken when the cost

o f t he precautions is less than the gravity of the p rosp ective harm

discounted by its probability, he argued that intentional harm is harm

tha t has a high pro bability o f occurring, and that the conne ction o f

intent to probability allows the intentional torts to be analysed in

eco no mic terms. Seen in this light, the law’s treatment of intent

serv es the func tion of promo ting economic efficiency.

In the question period after the paper, P osner was asked about the

following situation. Suppose the defendant, wishing to shoot the

plaintiff , fires at him from a distance so great and with skill so poor

tha t injury is highly improbable. I f the defendan t nonetheless

succeeds in hitting the plaintiff, has intentional harm occurred? The

point of the question w as to drive a wedge between the ideas o f intent

and pro bability that Posner had laboured to bring together. In the

questione r’s hypothetical, the probability o f harm is low, a nd y et tort

law's notion o f intent—the e xecuting o f a purpose for the production

of a tortious conseq uenc e- is undeniably present. Th e point o f the

que stio n was, o f course, immediately appa rent to Posner, After a

shor t but embarrassing silence he responded, “Well, I guess no theory

explains eve ryth ing.”

This response is worth contemplating: what precisely had Posner's

theo ry of intent failed to explain? From the tact that Posner

subsequen tly published his paper without adverting to the difficulty