Purely Formal Wrongs

Speaker

Professor Liam Murphy (New York University)

Abstract:

The internal normative structure of most areas of private law is a matter of rights and obligations. As we are often reminded, it is a relational or bilateral affair. The obligations are directed and so correlate with the rights; breach of a private-law obligation violates someone’s private-law right. And of course, if you violate my right, you wrong me. Private law remedies aim to undo, so far as possible, the wrong done to the right-holder by the breach of obligation. Pretty much everyone can agree with this—even, as I argue, economic analysts of law.

But theorists of private law disagree about the significance of this internal normative structure. If we are trying to make best sense of private law, must our interpretation reflect the internal normative structure? Many theorists assume that it must. But this position is rarely defended and is, I argue, entirely unmotivated if our aim is to make the best case we can for having these legal orders in the first place. The legal obligations, rights, and wrongs of private law can be seen as mirroring real moral obligations, rights, and wrongs only if there is good independent reason to believe that they exist. As there is not, we must regard the internal normative orders of private law as instruments for the promotion of entirely distinct goals.

There is no tension here. We are familiar with the idea of legal rules that are formal in the sense that they do not state their own rationales. A formal rule in this sense is applied for the sake of some goal that it does not state. The entire deontological internal structure of private law needs to be understood as formal in this sense. And so civil wrongs, private law wrongs, are purely formal. Morally speaking, they are not wrongs at all.

About the speaker:

Liam Murphy is Herbert Peterfreund Professor of Law and Professor of Philosophy at New York University. He works in legal, moral, and political philosophy and the application of these inquiries to law, legal institutions, and legal theory. Subjects of his publications range from abstract questions of moral philosophy (for example, the book Moral Demands in Nonideal Theory, 2000) to concrete issues of legal and economic policy (such as the book The Myth of Ownership: Taxes and Justice, 2002, co-authored with Thomas Nagel). A central theme in all Murphy’s work is that legal, moral, and political theory cannot be pursued independently of one another; they are, in fact, different dimensions of a single subject. This theme is evident in his most recent book What Makes Law (2014), which locates the traditional philosophical issue of the grounds of law (the factors that determine the content of the law in force) within broader issues of political theory. Murphy’s current project expands on his recent Frankfurt Lectures at the Goethe University, Frankfurt: “Private Law and Public Illusion.” This research examines contract, property, and tax law from a practice-based or instrumentalist perspective; it argues that the widespread belief that these domains of law must answer to natural moral rights and obligations is a fundamental theoretical mistake that has a crippling effect on our public political discourse. Murphy has been awarded fellowships at Columbia’s Society of Fellows in the Humanities, Harvard’s Society of Fellows, and the National Humanities Center. He has been an associate editor and is now a member of the editorial board of Philosophy & Public Affairs. Murphy was vice dean of NYU School of Law from 2007 to 2010.

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