When the histories of the turbulent year just passed are finally written, perhaps some small place will be found to note that 2016 saw the culmination of decades of work in developing an analysis of tort law that sees tort law as an outworking of Immanuel Kant's Doctrine of Right (or Rechtslehre), as set out in his The Metaphysics of Morals (1797). While neither Arthur Ripstein nor Allan Beever can claim to have been first in seeing tort law this way – that palm, of course, goes to Ernest Weinrib – those who are frustrated by knowing that Weinrib's work is both important and frequently impenetrable need worry no longer. In these two books, with the exception of a few pages here and there, the Kantian view of tort law is set out impeccably clearly. Ripstein's book is the more philosophical work; Beever's book is closer to the ground, turning over case after case, hypothetical after hypothetical, to see how much of tort law can and cannot be explained in a Kantian way. Both books are indispensable. We will never get a better presentation of the Kantian view of tort law than is provided to us in these books. It is time, then, for a final reckoning: how good a guide is Kant in helping us explain tort law?

Understandably, Ripstein and Beever have slightly different ways of presenting the Kantian master idea that they see as underlying tort law. For Ripstein it is “the moral idea that no person is in charge of another” (p. 6). Tort law gives effect to this idea by preventing me from making use of what belongs to you, or damaging what belongs to you, by engaging in activities that are inconsistent with all of us enjoying the same liberty to decide how to use the things that belong to us. For Beever it is the right to be free of “coercion”, which is defined as any form of “constraint” that is “unnecessary for the provision of equal maximum freedom” (p. 25). A “constraint” is defined as an action that interferes with another's freedom (p. 24) and takes two general forms: “putting [another] person to one's purposes” or damaging “the means, rightly possessed by [another], to realise her purposes” (p. 27). We can immediately see a problem with applying these Kantian ideas to explain the current shape of tort law. Suppose that English law recognised (as it does not at the moment) an analogue of the “fair use” defence in copyright law and said that I can make use of your property if it is clearly the case that by doing so I will not interfere with your making use of the same property. So, if you are on a six week holiday in the Bahamas, I can make use of your back garden to sunbathe. In what sense can it be said that in sunbathing in your back garden, I am in charge of you, or that I am constraining you? I have, of course, put myself in charge of something that belongs to you – but how does my being in charge of something that belongs to you mean that I am in charge of you, or constraining you? Neither Beever nor Ripstein deals with this problem. Beever simply asserts that “You can constrain me by putting my property to your purposes” (p. 27) and Ripstein seems to see no distinction at all between one's body and one's property, as when he refers to “Your entitlement to set and pursue your own purposes, to use your body and property as you see fit” (p. 8).

It seems then – and in the absence of any arguments being made to fill in this gap in Ripstein and Beever's explanation of tort law – that English tort law, in not recognising something like a “fair use” defence when it comes to real or personal property, goes further than it would need to if it were truly based on Kantian foundations. Other difficulties with Kantian theories of tort law are notorious and legion. It is claimed that such theories cannot explain the occasions when defendants are held liable in tort for (1) failing to save a claimant from harm; (2) intentionally causing a claimant to suffer pure economic loss; (3) negligently causing a claimant to suffer pure economic loss; (4) inducing someone to breach his or her contract with a claimant; (5) damaging a claimant's reputation or invading his or her privacy; and (6) abusing certain public powers that have been vested in a person or authority. It is also claimed that Kantian theories of tort law cannot explain (7) how tort law could have been shaped to give effect to Kant's Doctrine of Right given the judges’ lack of philosophical sophistication. How do Ripstein and Beever deal with these problems?

Disappointingly, Beever's book only gives the law of negligence the most cursory treatment, and simply refers readers to Beever's earlier book on Rediscovering the Law of Negligence (2007). Beever does not therefore deal with problems (1) and (3) in A Theory of Tort Liability. Instead, we turn to Ripstein who – equally disappointingly – does not deal with problem (3), other than to note that the basis of liability in Hedley Byrne & Co. Ltd. v Heller & Partners Ltd. [1964] A.C. 465 cases “is the acceptance of undertaking with respect to a specific risk” (p. 99). We are left wondering how cases of negligence liability for pure economic loss which involve no such undertaking are to be explained; it seems likely that Ripstein would dispose of them all into the “wrongly decided” basket. Nor does Ripstein cope particularly well with problem (1). Ripstein seems to think (p. 61) that if I delay an ambulance which is taking you to hospital by refusing to get out of its way, I will not be held liable in tort for any harm you suffer as a result of your late arrival. This overlooks the fact – very familiar to tort lawyers – that I will owe you a positive duty of care to save you from harm if I have (even without any fault on my part) put you in danger of suffering that harm, or have interfered with someone else's saving you from that harm. Ripstein later suggests that if there is liability in this case, it is because I have a public law duty to get out of the way of the ambulance: a duty that forms part of “a system of mandatory cooperation, designed to protect people from dreadful outcomes, and so to enable them to continue to be members of society” (p. 292). But it is not clear what is the basis for so classifying the duty of care that I owe you in this situation – given that it behaves exactly like an ordinary private law duty of care – other than that its existence is not compatible with Ripstein's theory of tort law.

Turning to the economic torts and beginning with problem (2): Ripstein argues that a Kantian tort law is justified in holding a defendant liable for intentionally harming a claimant where the defendant has chosen to use the means that belong to him in a way that is intended to frustrate the claimant from using the means that belong to the claimant in the way the claimant wishes to do so: “the one thing that cannot be enjoyed consistently by everyone is the right to stop others from using their means in the way that they wish to” (p. 172). But this does not explain why intentionally causing another to suffer pure economic loss only usually gives rise to liability if independently unlawful means are used. Beever argues that the essence of the wrong in these kinds of cases is that the defendant exerts indirect control over the claimant, successfully seeking to take over the claimant's life and direct it to a “disastrous” outcome (p. 123). Again, this does not explain why the defendant needs to have used independently unlawful means to be held liable to the claimant; a point that is acknowledged by Beever when he observes that the unlawful means requirement “is not appropriately viewed as a necessary condition for the relevant kind of wrongdoing and should not be an element of the action” (p. 138). So far as problem (4) is concerned, Beever argues that “it is impossible to support a tort of inducing a breach of contract” (p. 153) and that my inducing someone to breach a contract with you should only give rise to liability if I succeeded in exercising control over the direction of your life. Ripstein takes no position on how Lumley v Gye (1854) 3 El. & Bl. 114; 118 E.R. 1083 is to be explained (p. 179, fn. 32).

Ripstein and Beever each devote an entire chapter to explaining the law of defamation, thereby addressing problem (5), at least in part. (The law of privacy is not dealt with by either writer.) For Ripstein, the law of defamation emerges out of the most basic idea that has to underlie any system of private law: “the idea that any allegation of wrongdoing must be established” (p. 191). As a result of this you have a “basic right to have no wrong attributed to you that you did not do” (p. 192). There are three difficulties with Ripstein's explanation. First, while it seems clear that if I sue you, alleging that you committed a private wrong against me, the burden should be on me to prove what I am alleging, it is unclear why I should have to prove the truth of my words if I casually, and without any intention of suing you, allege that you have committed a private wrong in relation to me. Secondly, it is not clear why, given Ripstein's starting point, he feels able to say that “The relevant conception of having done wrong … will extend to moral and even social wrongs. Others are not entitled to impute any of these wrongs to you” (p. 205). Why are they not entitled to do so? It is clear that Ripstein would want his theory to cover the imputation of these kinds of wrongs because otherwise his theory will only explain a very small part of the law of defamation. But it is not clear how Ripstein's theory can be extended to cover accusations of moral or social wrongdoing. Thirdly, a statement can be defamatory even if it does not allege that I have done anything wrong; it is enough that it would generally have the effect of causing people to “shun and avoid” me. So, saying that I have contracted leprosy is defamatory; and if I am trying to get work as a dancer, so is saying that I have two left feet. Ripstein makes the interesting argument (p. 209) that alleging that someone had a disease originally only counted as defamatory if the disease amounted to a sexually transmitted disease or leprosy as such diseases were “seen as markers of wrongdoing”, which would fit his theory. But it is clear that the current law goes well beyond what Ripstein's theory is capable of explaining, and Ripstein concedes as much (pp. 214–15). For Beever, what is wrong with defamation is that it “involves exercising control over another's life by getting third parties to think ill of that person” (p. 198). However, as Beever acknowledges (p. 206) this is only true where a defendant is trying to get third parties to think the worse of a particular claimant – and there is no such limit on liability for defamation.

Turning to problem (6), Beever is able to explain liability for malicious prosecution on the basis that the defendant in such a case will be guilty of trying to exert control over the claimant's life via the legal system; but he does not touch on misfeasance in public office. Ripstein does deal with misfeasance in public office (though not malicious prosecution), arguing that using public powers to harm a claimant can give rise to liability because the means used to harm the claimant are not meant to be used for a private purpose. The argument is, however, obscure; it is not clear how the fact that “[t]he use of public powers for private purposes is not a means that could be generally available” (p. 183) enables the claimant to say that the defendant's making him worse off using such powers amounts to a Kantian wrong.

Finally, problem (7): if tort law is based on Kantian foundations, how did it get that way? Both Ripstein and Beever argue that this is not a problem they need to address. Ripstein argues that all he is doing, in presenting a Kantian view of tort law, is articulating what is already “a central element of ordinary moral thought, and already implicit in the plaintiff's assertion of a right in bringing a defendant before a court to demand a remedy for a wrong” (p. 18). For Ripstein, then, a Kantian view of tort law takes tort law's “structures and doctrines at face value” and presents “what may seem to be a naïve view of private wrongs” (p. 23). Ripstein is not therefore seeking to offer “a historical account…that identifies the origins of particular features of tort doctrine” (p. 19). Nor is Beever, who argues that his theory of tort law is not seeking to identify what motivated the judges to decide the cases the way they did, but to provide the “best account of the normative structure of the law as that law is found in the actual jurisdictions in which we live” (p. 5). But if the Kantian account of tort law offered by Beever or Ripstein is unable to account for large areas of tort law and we find implausible the suggestion that tort law rules and doctrines could ever have been assembled with Kantian ideas in mind, the conclusion would seem to follow that some other non-Kantian account of tort law is likely to do a better job of explaining tort law's rules and doctrines. And that is my conclusion from reading these very fine and brilliantly argued books: if tort law is intelligible – and is not simply a chaotic mess of rules and doctrines – then we have to look beyond Kant to make sense of it.