A. Introduction

The focus of my present critique is not the grand scheme of corrective justice, but rather the place of the formal conception of equality in this scheme. Before I take up this reconstructive task it will be apt to specify what I mean by ‘corrective justice.’ The clarification is in order since recent literature runs together (at least) two different conceptions of corrective justice: a narrow and a comprehensive one. Corrective justice in the narrow, more literal sense is familiar from the writings of Gardner, Keating, and, at times, Coleman. ^{Footnote 11} For them, corrective justice is principally a theory that focuses on cost-allocation through regulating the reversal of a prior occurrence of a wrongful transaction. ^{Footnote 12} It purports to justify the correction of injustice wherein the injustice itself is not (and even cannot be ^{Footnote 13} ) one of corrective (in)justice. Roughly speaking, this approach places the conceptual and normative focus on the remedial aspects of private law and negligence law, in particular. ^{Footnote 14}

By contrast, corrective justice in the broader sense (as used especially by modern Kantians such as Weinrib, Ripstein, Hegelians such as Benson, but also, at least sometimes, by pragmatists such as Coleman) articulates an account of the structure and content of private right, by which I mean the basic features of the morality of the law that governs interactions between persons. ^{Footnote 15} This is not to say that this approach ignores allocative questions—it does not. ^{Footnote 16} In fact, the introduction of Aristotle’s distinction between arithmetic and geometric models of equality in mathematics by Weinrib might give the wrong impression that Weinrib’s corrective justice concerns itself with the remedial aspects of private law exclusively (and his emphasis on the phenomenon of liability further reinforces this impression). Once again, Weinrib’s corrective justice does not focus exclusively on the correction of injustices (by rules of remedies whose function may resonate with the arithmetic logic of subtraction and addition). Indeed, more fundamental to his approach is the specification of the substantive rights and duties and, by implication, the determination of what could count as wrongful transaction. Repair, then, comes last and least since it is the normative upshot of the two prior stages: That of identifying the basic substantive rights and the standards by which to assess whether they were violated.

The following discussion of formal equality in private law will track the broader sense of corrective justice (but my critical conclusions are relevant to the narrower sense of corrective justice as well). Indeed, the ideal of formal equality figures not merely at the stage of rectifying wrongful losses, but rather already in determining the content of the substantive rights and duties private individuals owe one another in private law. Put differently, the justice of private law is important not only for tackling injustices by way of subtraction and addition, but rather for setting the normative baseline of primary rights and duties against which to determine what counts as injustice and what counts as correcting it.

B. The Structure of the Argument from Corrective Justice

Here is a reconstruction of the overall argument from corrective justice with a particular emphasis on the place it designates to the formal conception of equality.

1. 1. Premise: Private law has to meet the demands of justice (as opposed, say, to welfare or virtue ethics) by giving effect to a defensible notion of equality; ^{Footnote 17}

2. 2. Observation: The structure of private law interactions is necessarily bipolar; ^{Footnote 18}

3. 3. The Exceptionality Thesis: A certain formal conception of equality is the only conception capable of fitting #2; ^{Footnote 19}

4. 4. Conclusion: If #3 obtains, and certain other conditions concerning the state’s responsibility to provide for background justice obtain, private law can meet #1. ^{Footnote 20}

As I mentioned above, my critique focuses on the Exceptionality Thesis. I accept as true the Premise (#1). I also accept for the purpose of the present argument a modest version of the Observation (#2). That is, some corrective justice theorists have argued that the bipolar structure of private law powers, rights, and duties are not merely necessary for these norms to count as private law norms. Instead, these norms are often presented (by both corrective justice and civil recourse theorists) as a distinctive feature of private law. ^{Footnote 21} This is, as I show elsewhere, a mistake that can (perhaps) be traced to the tendency of corrective justice and civil recourse theorists to draw inferences about private law’s exceptional structure by reference to a comparison between criminal law and private law (or tort law). ^{Footnote 22} But once one enlarges the public-private law comparison to include other paradigmatic instances of public law, such as constitutional rights law, the argument that the bipolar structure of private law is distinctive fails. The bipolar structure of powers, rights, and duties is not a feature of private law in particular. Rather, it is a juridical form of establishing normative relations, private and non-private law relations. ^{Footnote 23}

The Exceptionality Thesis, then, takes up one implication of identifying private law’s structure as bipolar: Its equality. ^{Footnote 24} Because it has this structure, Weinrib argues that any plausible conception of equality in private law must be able to distinguish the equality considerations that pertain to the participants in a private-law interaction from those that apply generally to each and every member of society. Accordingly, the formal analysis of corrective justice frames the question as what it is for the parties in a private-law interaction to relate as equals. ^{Footnote 25}

At this point, the corrective justice approach could have provided a conceptually modest answer to the question of relating as equals. That is, the (Kantian) theory of corrective justice develops one (arguably, attractive) interpretation of what it means to relate as equals in the context of private law. The interpretation would read along these lines: Parties relate as equals when their private-law terms of interactions treat them as formally equals. To treat these parties as formally equals means, among other things, to conceive of them as equally constituting their respective capacities for choice, to the exclusion of differentiating factors such as powers, vulnerabilities, needs, and virtues. ^{Footnote 26} And a subsequent stage of this argument would owe us an explanation as to why this interpretation is normatively superior to other competing interpretations.

However, this is not how the corrective justice account presents the nature of the argument from formal equality. It seems that it opts for a more ambitious claim, namely, that this formal conception of equality is not merely an (attractive) interpretation of the notion of relating as equals, but rather the only interpretation available in the light of the bipolar structure of private law. ^{Footnote 27} This is just another way to describe the Exceptionality Thesis (on which more below).

Hence, the ambition to cast the formal conception of equality as uniquely appropriate to private law depends for its success on two conditions: First, that pursuing distributive equality in private law is in some sense incoherent; and second, that there is no other conception of equality (i.e., other than the formal and distributive ones) that can be made consistent with the bipolar structure of private law.

In what follows, I shall defend the first condition. However, I also seek to show that the second condition is not met. I argue that the Exceptionality Thesis fails because there can be a non-formal conception of equality, the egalitarian ambition of which is non-distributive. I also wish to show that some such conception implicitly figures in some important areas of private law. This third conception of equality, substantive equality as I shall call it, reveals how the argument from formal equality should be characterized—a plausible interpretation of the notion of relating as equals, but certainly not an exclusive one. By implication, it makes private law far less exceptional (vis-à-vis non-private law) than the corrective justice’s Exceptionality Thesis suggests. It does not mean that private law cannot be exceptional in other ways, but given my arguments in these pages and in an article preceding the current one ^{Footnote 28} it is not clear what else can render private law exceptional in the eyes of corrective justice theory.

C. Why Rule Out Distributive Equality in Private Law? The Structural Difficulty

Before I take up the structural difficulty with making distributive equality private law’s conception of equality let me note that it is not the only difficulty with marrying distributive equality with private law. Another genuine difficulty is an institutional one. Because it often governs occasional interactions, private law will typically fail to redistribute resources regularly and systematically across all members of society. ^{Footnote 29} However, the more fundamental difficulty is structural, rather than institutional. That is, terms of interpersonal interactions grounded in equality in the overall distribution of resources in society necessarily eliminate the relational form of the rights and the duties that, according to corrective justice theorists, characterize the private law. That is, a commitment to redistribute resources across society makes it the case that private law rights and duties find their grounds not between the interacting right-holder and duty-holder in particular, but rather among all members of society, including of course those who take no part in this interaction. For instance, suppose that private law would rely on assessment of individual merit (of whatever kind) for the purpose of deciding both the content of the relevant primary rights, the protection they deserve, and the appropriate remedy for their breach. In doing so, private law will shift the focus to the ‘relationship’ that holds between each party to the interaction, taken separately, and society. The relevant merit will fail to single out the interacting parties as a source of concern and of value quite apart from the comparison of merit across society. ‘Private law’ would then become a nominal description of a legal framework, the real function of which is to achieve better conformity with equality in holdings across society. Indeed, repudiating formal equality and embracing distributive equality instead represents a break away from, rather than a shift within, private law. ^{Footnote 30}

This thesis has recently been put under philosophical pressure by tort theorists (such as John Gardner and Hanoch Sheinman) who have sought to debunk the dichotomy between corrective and distributive justice. The critique at issue does not address the Exceptionality Thesis directly, but rather seeks to refute the broader argument made by the Kantian articulation of corrective justice, namely, that the justice of private law cannot coherently meet the demands of both corrective and distributive justice. However, it may carry important implications for the Exceptionality Thesis. To mention just one, private law equality need not be, and perhaps must not be, indifferent to the redistributive consequences of its operation. Thus, a court contemplating the affirmation of a new tort cause of action must account for the broader consequences of its decision on future victims, risk-creators, and other participants in the practice of tort law. Now, the debunking argument is that tort law (and, perhaps, private law more generally) must face some considerations of distributive justice as they arise inevitably in the course of pursuing corrective justice. ^{Footnote 31}

However, this attempt at refuting the corrective/distributive justice distinction fails; by implication, it does not pose a threat to the Exceptionality Thesis. The source of the difficulty with the debunking attempt in question is that it is not inconsistent with corrective justice’s ambition to exclude considerations of distributive justice from the private law. Here is why.

The basic insight developed by both Gardner and Sheinman comes from their insistence on evaluating the justness of tort law, in part, by reference to the opportunities and effects this law creates (or eliminates) for the entire class of participants in the tort practice. To be sure, both Gardner and Sheinman (not to mention corrective justice theorists such as Weinrib and Ripstein) are reluctant to commit tort law to robust redistribution of resources or opportunities along Dworkinian or Rawlsian lines. ^{Footnote 32} Rather, both theorists mainly focus on opportunities and effects that arise in connection with the availability of a cause of action in tort and with the remedial apparatus that courts facilitate. For this reason, Gardner contrasts (what seems to be the corrective justice orthodoxy) doing “justice between parties” with his observation that “doing justice between the parties … cannot but entail consideration of whether the plaintiff belongs to a class of people who should enjoy a right to proceed in tort against the defendant.” And he concludes: “no judge may rule in favor of any plaintiff except by locating the plaintiff within a class of imaginable plaintiffs who would, according to the judge, be entitled to the same ruling.” ^{Footnote 33}

It seems to me that Gardner is correct on this last point, but is there a genuine disagreement between Gardner/Sheinman and corrective justice theorists (such as Weinrib and Ripstein)? I think not. It does not seem right that Gardner’s way of characterizing the judge’s mode of reasoning must be inconsistent with at least the spirit of the theory of corrective justice. This may come as a surprise since corrective justice theorists (as just noted) are reluctant to admit the relevance of considerations of distributive justice to the explanation and evaluation of tort law. But these theorists simply understand the character and scope of ‘distributive justice’ in qualitatively different ways than both Gardner and Sheinman do. Evidence for this can be discerned from the importance of systematicity in leading accounts of tort law as corrective justice. For instance, at one point Weinrib notes the court’s “omnilateral authority” to extend “the significance of the decision beyond the specific (private law) dispute.” ^{Footnote 34} This observation potentially preempts much of the criticism made by Gardner’s insistence ^{Footnote 35} on the distributive aspect of correcting injustices through tort law. Accordingly, it may be said that the ‘distributive justice’ considerations under discussion arising in the course of correcting injustices are endogenous, rather than exogenous, to a practice of corrective justice properly so called. ^{Footnote 36} The Exceptionality Thesis can therefore survive the Gardner/Sheinman broader line of attack on the dichotomy between corrective and distributive justice.

However, and this is the important point, it does not survive the argument that there can be a non-formal conception of equality and that it suits the bipolar structure of private law. Or so I shall argue.

A. Substantive Equality vs. Formal Equality

For the sake of exposition only, I shall outline the main implications of the formal conception of equality for private law by reference to a distinction between voluntary and involuntary interactions. On an influential version of the formal conception in question, voluntary interactions are governed by a principle of independence. ^{Footnote 45} Gaining access to my property, having an entitlement to my services, or entering into a joint venture with me depends on my consent (at the very least). Anything short of that amounts to an attempt to denying my independence by converting my person or property into a mere means of yours. For this reason, the terms of a voluntary interaction must be determined (or otherwise accepted) by the party whose basic entitlements to exercise choice over her person and property are at stake. Involuntary interactions are typically accidental and so turns far less on consent. ^{Footnote 46} Nonetheless, they, too, are governed by a principle of independence, according to which the terms of such interactions must reflect the formal equal independence of each interacting party, taken severally. By implication, they cannot be determined by your (or my) judgment concerning what respect to my (or your) person and property requires. ^{Footnote 47} Nor can they be fixed by reference to your (or my) substandard competence. ^{Footnote 48} Incorporating such subjective factors into the terms of an involuntary interaction violates formal equality because it gives one party to the interaction the standing unilaterally to determine some of these terms. Thus, in order to be consistent with formal equality, the terms of involuntary interactions must be determined objectively in the negative sense that they must refrain from taking into account the idiosyncrasies of the particular person’s condition whose conduct is being assessed. ^{Footnote 49}

The formal conception under discussion presupposes a rather thin conception of the person as free and equal agent. In particular, a private individual is free in virtue of her capacity for choice, which is to say the capacity to set and pursue ends by deploying one’s person and property. Private individuals are equal in virtue of having this capacity (to a sufficient degree). Accordingly, for any set of terms of an interaction between private individuals to count as fair, the ability of one participant to set and pursue her ends using her means must be consistent with a like ability on the part of the other participant(s). ^{Footnote 50} In conceptualizing the person in these terms, corrective justice theory insists on insulating the interacting individuals from their actual particularities. This is why proponents of corrective justice’s formal equality use such terms as “abstract equality of free purposive beings,” ^{Footnote 51} “noumenal selves” ^{Footnote 52} and “generic personality” ^{Footnote 53} to express formal equality’s ambitious claim: That “the conceptual structure of private right can only be made to apply to particulars if it is applied in the same way for everyone.” ^{Footnote 54}

Substantive equality, as I said a moment ago, picks out a thicker conception of the person. It is substantive in the sense that it does not ignore (at least not entirely) the differences between persons: Substantive equality takes difference seriously by supposing that people can relate as genuinely equals only insofar as their different situations are brought to bear (in the appropriate sense) on the legal determination of the terms of their interactions. ^{Footnote 55} For instance, the typical power imbalance between an employer and an employee can be deemed irrelevant from the point of view of formal equality. Indeed, proponents of the formal conception would say that in making an employment decision such as refusing to accommodate the employee’s familial commitment, the employer merely changes the context within which the employee can still set and pursue ends using her own means (she can try her luck with other private or public employers or start her own business). ^{Footnote 56} But from the perspective of substantive equality, the power imbalance cannot be overlooked in deciding the question of accommodation. ^{Footnote 57} It cannot be overlooked in other contexts of employment relations, such as the tort law context pertaining to the employer’s duty to provide a reasonably safe workplace. ^{Footnote 58} Thus, although both the formal and the substantive conceptions of equality in interactions seek to address the same question—what it is for persons to relate as equals—they differ on the conception of the person that each underwrites. Whereas formal equality equates the person with “generic personality,” substantive equality allows the relevant personal qualities, powers, and vulnerabilities to inform the conception of the person for the purpose of determining the terms of the private law interactions.

Consider, once again, a typical interaction between a work candidate and an employer and the private wrong of discrimination in this context. These two may well be formally equal by virtue of possessing the capacity for choice, but they may not be substantively equal insofar as it is permissible—morally and legally—for the employer to refuse to accommodate, to a reasonable extent, basic family or even religious commitments of the former. A refusal to accommodate means that, as between the two, the work candidate is left to bear the entire costs of care-giving or of religious devotion. But this view offends against our moral intuitions (and the modern law) concerning what it is to stand in a relationship of equality—in particular, the non-accommodating employer and the candidate do not stand in a relationship of equality if the former can dictate terms of interactions that discriminate against the employee’s special needs or vulnerabilities. ^{Footnote 59}

Note that I do not claim that the employer must owe the would-be employee a duty to accommodate all of his or her particular traits and qualities. It seems fair to assert for the limited purpose of criticizing the conceptual neglect of substantive equality that familial status and religious faith present compelling cases for the proposition that some measure of accommodation on the part of the employer is in order. (Might one not say that the goal of accommodation is to put the interacting persons in a position of formal equality? I believe not. Certainly, accommodation seeks to allow the parties to relate as equals. However, the distinction between formal and substantive equality on which my discussion centers takes up the implication of inequalities in power and vulnerability between the employer and employee at the get go stage (which is the stage in which the legal terms of the interaction are determined). The formal conception of equality does not conceive of these inequalities as a problem (insofar as they do not undermine the very capacity for choice on the part of the employee). Substantive equality, by contrast, identifies them as the basic hurdle to overcome by imposing a duty of accommodation on the employer (rather than on society or the state)).

Thus, the animating worry for the substantive conception is whether or not the interacting persons, given their powers (say, as employers) and vulnerabilities (say, as disabled pedestrians crossing a busy street or simply as potential victims of a risky act) enjoy a more or less equal importance in determining, or influencing the law’s determination of, the terms of their interaction. In the next Part I show the important extent in which contextual analysis can help to determine, in the case of a particular type of interaction, what powers and vulnerabilities may count as relevant.

Note that the point of addressing power and vulnerability imbalances as between the interacting parties is not that of correcting historical social injustices—furthermore, it is not about the overall redistribution of respect and fault across society. Rather, the point is that of treating both parties to a private-law-governed interaction as (more or less) equally important in determining, or influencing the law’s determination of, the terms of this interaction. Considerations of difference in powers and vulnerabilities guide the determination and enforcement of the rights and duties that figure in private law, regardless of whether these powers and vulnerabilities are the upshot of past and present discriminatory treatment of a certain class of people by society. Accordingly, from the perspective of substantive equality, the employer is not allowed to act on his or her unequal power advantage even when the work candidate at issue is not a member of a historically marginalized group; more generally, the employer incurs this obligation even when the candidate may be able to find equally beneficial jobs with other, more accommodating employers. ^{Footnote 60} Substantive equality, therefore, is not a scheme of state delegation of public responsibility to correct past social injustices to private individuals. Tackling power and vulnerabilities imbalances is important because even a discrete case of interacting under such circumstances can in itself, that is, independently of its cumulative consequences, be unjust. ^{Footnote 61}

B. Substantive Equality vs. Distributive Equality

One might suspect that substantive and (some versions of) distributive equality share more than just the rejection of the formal conception of equality. Substantive equality, it may be thought, is essentially a form of distributional equality. The suspicion can arise in the light of the example of workplace accommodation and, especially, the cost-internalization it requires: That our employer must make reasonable accommodation in the light of the employee’s familial status, religious faith, or physical disability. In response, I shall seek to show that this suspicion is groundless—substantive equality is not reducible to distributive equality, including substantive distributive equality (conception 2b). ^{Footnote 62}

To begin with, the suspicion at issue cannot be that substantive equality has important allocative and, therefore, distributive consequences. It surely does, but so does the formal conception of equality. Instead, the suspicion must be that substantive equality aims, at bottom, to realize distributive equality, viewed as equality in the overall distribution of resources in society. A suspicion of this sort reflects a tendency among some liberal egalitarians to cast virtually all questions of equality in distributive terms. On this approach, equality is, at bottom, a distributive value so that a theory of equality, and ultimately of justice, is primarily an account of the equalisandum, which is the kind of thing (resource, welfare, etc.) whose equal distribution is necessary (though perhaps not sufficient) to meet the demands of justice. ^{Footnote 63} However, substantive equality is no mere subset of distributive equality.

Indeed, achieving equality in the overall distribution of resources in society does not take the one-to-one relationship and the possible equality that holds between each party to the private law interaction as important in and of itself. Rather, it focuses on the different relationship between either party to the interaction and society as a whole (it has a multilateral, rather than bilateral, structure). Accordingly, whereas substantive equality concerns the terms of the relationships between individuals, distributive equality focuses on considerations of equality in the holdings of persons, taken severally. The different normative orientations just mentioned are not merely theoretical. Rather, the distributive implications of establishing substantively equal terms of interaction need not be compatible with the demands of distributive equality. Demanding the employer in particular to accommodate, to a reasonable extent, some of the personal qualities and circumstances of the employee need not pass the bar of distributive equality. Perhaps it might be better, from the point of view of distributive justice, to impose the duty of accommodation on the entire class of taxpayers, according to a criterion of desert, responsibility, or any other just method of meritorious assessment. The claim is not that distributive equality must always resist the imposition of the duty of accommodation on the employer; rather, the point is that distributive equality approaches this ‘duty’ question from the perspective of society, not from the employer-employee one.

Thus, let’s stipulate that substantive equality imposes a duty on our employer to accommodate, to a reasonable extent, the physically-disabled employee (or, for that matter, his familial commitments). Whether or not this duty can also be justified on grounds of distributive equality depends on considerations that are not relevant to the employer/employee terms of interaction only. Some of these considerations will focus on the employee’s situation: For instance, the responsibility of the employee, say, for how his disability came about—viz., whether through fault (no fault) or choice (no choice) of his own. Another relevant consideration would be the employee’s economic status—he or she can be relatively wealthy (including even in comparison to the employer’s financial situation). Another relevant consideration is the availability of adequate job alternatives provided by either public or private employers who are ordinarily willing to accommodate the likes of the employee. Other considerations will focus on the employer and on the distributive-based reasons for or against imposing a duty of accommodation on the employer in particular. ^{Footnote 64} For instance, all else being equal, hiring a physically disabled person is commonly considered morally and socially desirable—for work is consequential to social and political integration.

These and other considerations of distributive equality or fairness determine what allocation of the responsibilities and costs associated with the employee’s choice and circumstances counts as distributively just. Substantive equality, by contrast, focuses on the terms of the interaction between the employer and the employee. In particular, it focuses on what it means for the former to respect the latter—to take her seriously—by recognizing her rather than merely her generic personality or capacity for choice. It emphasizes the responsibility of the employer to make reasonable accommodation even when considerations of distributive equality will pull in other directions (as when they single out the responsibility of the public as a whole). Thus, substantive and distributional equality are simply different conceptions of equality. This difference, moreover, is institutionally manifested in the different dimensions they each currently capture: whereas the former governs the horizontal interactions between agents, the latter regulates the vertical interactions between the distributing agent, which is typically the welfare state, and its patients.

V. Does the Substantive Conception of Equality Figure, in some measure, in the Private Law?

Substantive equality, I have argued, proposes an ideal of equality irreducible to the formal or distributive conceptions of equality. Contrary to the formal conception of equality, it can work out a sufficiently thick conception of the person in defiance of the austere conception of the person as constituting a “generic personality.” And in contrast to equality in the overall distribution of resources in society, it focuses on the terms of the interaction between the right- and the duty-holder in particular. At least in theory, the existence of substantive equality refutes the conceptual ambition of the Exceptionality Thesis. It will be apt to elaborate on this conception by addressing two questions: First, how to determine what powers and vulnerabilities count in order for the parties to relate as substantively equals; second, does the substantive conception of equality figure in legal practice without collapsing to either formal or distributional equality. I address the first question in the course of responding to the second one. That is, by focusing on the doctrinal footsteps of the substantive conception in private law as we know it, I showcase how the distinction between relevant and irrelevant aspects of the parties’ respective situations does not give rise to radical indeterminacy and ad hocery. The argument going forward, therefore, further elaborates on the notion of substantive equality in private law. The discussion will be brief, since my ambition is to identify, rather than pursue, the doctrinal footprints of substantive equality in familiar areas of private law. But even this brief inquiry will be able to demonstrate that the Exceptionality Thesis is implicitly rejected by courts and that, by implication, private law can give rise to a non-distributive ideal of substantive equality.

Two last introductory remarks are in order. First, I have already introduced workplace accommodation as a possible illustration of substantive equality. At this point one may protest that workplace accommodation is better understood as a combination of private law with regulatory law; in particular, the state addresses social injustice by commandeering the support of private employers. But this is not the only way to approach the matter. A better way is to show that workplace accommodation finds its grounding in substantive equality, rather than in the employer’s responsibility to support the effort of the state to fulfill its obligation toward would-be victims of employment discrimination. ^{Footnote 65} The second point is that the cases I shall discuss capture core areas of traditional private law and, moreover, are famously associated with this law’s commitment to the formal conception of equality. ^{Footnote 66} This first piece of doctrine—the standard of reasonable care—is not only key to understanding a major area in the common law of tort law. Rather, it has also been corrective justice’s poster child for the crucial place of formal equality in private law. ^{Footnote 67} The next case is contract, and especially the discrete contractual ‘relationship’ established by self-interested strangers. This latter case figures prominently in some of the most sophisticated accounts of contract law’s commitment to formal equality. ^{Footnote 68} But as I shall seek to show, there are reasons to believe that both cases are better cast in terms of a broader commitment to the substantive conception of equality.

A. Reasonable Care and Substantive Equality: Accommodating the Tort-victim’s Disabilities

The familiar tort maxim that the tort-feasor takes her victim as she finds him is typically associated with the thin skull doctrine. ^{Footnote 69} But a modified version of this maxim—one that incorporates a requirement of foreseeability—applies far more broadly than the determination of the amount of compensation to victims with an unusually sensitive constitution: I argue that it also partially governs judgments concerning what counts as negligent creation of risk of bodily injury. ^{Footnote 70}

Consider the question of whether the standard of reasonable care ought to accommodate (in the right sense) the disabled victim when his or her life and limb are at stake. ^{Footnote 71} Suppose that a person with a disability, physical or mental, is struck by an automobile while crossing the street. The victim’s disability can be relevant to the task of determining the terms of the interaction and, ultimately, the resolution of this case in two important ways: It can partially determine whether the injurer’s conduct is negligent at all, on the one hand, and it may determine the scope of the liability that can be imposed on a negligent injurer, on the other. ^{Footnote 72}

Concerning the former, in a tort regime of negligence, the injurer can be held liable only insofar as she has failed to exercise reasonable care toward the victim. The diminished capacity of the victim can be partially constitutive of what counts as reasonable (or unreasonable) exercise of care by the injurer. For instance, any non-arbitrary attempt at identifying the ‘reasonable’ speed limit presupposes a prior judgment concerning what counts as reasonable conduct on the part of a potential victim responding to an approaching car. ^{Footnote 73} In tort law’s parlance, the method of assessing the conduct of the responding victim partially constitutes the content of the duty of care the potential injurer owes the potential victim. It will be unreasonable, say, to drive at 20 MPH under the relevant circumstances if the law supposes that the potential victim(s) will likely fail to stay off harm’s way—this is why reasonable driving next to an elementary school calls for driving at a very slow pace. Concerning the latter, even when the injurer’s conduct is utterly negligent, the diminished capacity of the victim may partially fix the scope of the injurer’s liability. This is because his or her liability can be reduced to reflect the fault of the victim. ^{Footnote 74} Hence, it matters whether or not the law ignores the disability in question for the purpose of assessing comparative negligence: ignoring the disability decreases the scope of injurer’s liability, and vice versa.

In principle, a commitment to corrective justice’s formal conception of equality calls for ignoring the disability in question. ^{Footnote 75} This is because the terms of the interaction must be determined objectively in the negative sense that it must refrain from taking into account the idiosyncrasies of the particular person whose conduct is being assessed. Incorporating such subjective factors into the terms of an involuntary interaction would give one party to the interaction the standing to determine these terms unilaterally, which is to say in violation of formal equality. ^{Footnote 76} It might be protested that accommodating the disabled plaintiff need not be inconsistent with formal equality—there is no qualitative difference between this case and the one of slowing down in the face of a ditch on the road. Both are instances of taking additional precautions and no one can claim that the latter is inconsistent with the corrective justice demands of formal equality. ^{Footnote 77} However, this argument fails, since the analogy between a disabled plaintiff and a ditch cannot do the work corrective justice theorists expect it to do. Indeed, it is one thing to say that an increase in the motorist’s amount of care due to an adverse road condition does not undermine the demands of formal equality; quite another to use a similar argument where the increase in the amount of care is due to the condition of a human agent. It is only with respect to the latter condition that the demands of formal equality can become intelligible at all. After all, the whole point of being concerned for inequality in the determination of the standard of care arises when, and only when, one person, as opposed to a ditch, gets to fix the amount of care the other party to the tort interaction would owe the former. Accordingly, the failed analogy to the permissibility of a requirement to slow down in the face of changing road conditions returns the corrective justice approach to its point of departure: The persistent impermissibility of allowing the plaintiff’s condition to fix the terms of her interaction with the defendant.

The law, however, rejects formal equality. In its stead the law adopts (subject to necessary modifications) the maxim mentioned above, requiring that the duty of care owed by the injurer to the victim should be partially influenced by the latter’s capabilities including, the conventional view to the contrary notwithstanding, some mental disabilities. ^{Footnote 78} The injurer must be responsible to take extra care—viz., incur additional responsibility—to protect the disabled person, rather than merely the non-disabled person, from the former’s dangerous activity. As Stable J. points out, it cannot be the case that “the law is quite so absurd as to say that, if a pedestrian happens to be old and slow and a little stupid, and does not possess the skill of the hypothetical pedestrian, he or she can only walk about his or her native country at his or her own risk.” ^{Footnote 79} Stable J. then observes “[o]ne must take people as one finds them.” ^{Footnote 80}

This requirement, moreover, is best understood as giving rise to an idea of substantive equality as opposed to either formal or (formal or substantive) distributive equality. ^{Footnote 81} I have already mentioned that an idea of formal equality calls for a duty of care that exempts the injurer from attending to the special circumstances of the victim. Such a non-accommodative duty would only go so far as respecting the victim in the abstract, that is, apart from her special makeup. Furthermore, it is also clear that accommodating the qualities of the victim need not be grounded in distributive equality. Indeed, the responsibility of the pedestrian concerning how his disability came about—viz., whether through fault (no fault) or choice (no choice) of his own—could matter from a distributive equality point of view. However, it makes absolutely no difference when considering the existence and the content of an accommodative duty of care in negligence law. Moreover, and more fundamentally, taking considerations of distributive equality seriously may plausibly make it the case that society as a whole, rather than either the injurer or the victim, should assume responsibility for the disability in question (including, in particular, the additional costs it imposes on the interaction between the injurer and the victim). ^{Footnote 82}

Substantive equality approaches the matter differently by asking whether the terms of the interaction established by the standard of due care (defendant- and plaintiff-care) is consistent with their ability to relate as substantively equals. This question consists in a structural and a content dimension. Structurally, the focus is on the relationship between the two rather than between each one of them and society.

The content dimension does not focus on their formal equal status. Rather, as I argued above, substantive equality takes difference seriously by supposing that people can relate as equals only insofar as their different situations are brought to bear (in the appropriate sense) on the legal determination of the terms of their interactions. Furthermore, the following analysis can defeat the worry that substantive equality’s commitment to taking difference seriously is unable to generate a definitive answer to the question of what differences should count. Indeed, the shift from generic personality to a thicker dimension of the person need not result in troubling indeterminacy or ad hocery. The relevant difference in the case at hand comes down to the vulnerability to which each is being exposed by the tort interaction—physical injury in the plaintiff’s case and impediments to the pursuit of ends in the defendant’s case. Indeed, this difference is not merely one among many possible others; rather, it is both necessary and sufficient for the purpose of justifying a rule that the amount of care owed by the injurer to the victim should be partially fixed by the latter’s disability. Other kinds of difference remain purely incidental to the interaction.

To see this, consider the following hypothetical case. A, the plaintiff, and B, the defendant, are virtually identical in all respects—both, more concretely, suffer from the same physical or mental disability. However, their otherwise identical characters and circumstances give way to an important difference in a tort interaction in which B imposes risk of bodily injury on A. B’s activity might render vulnerable the life and limb of A whereas A’s activity renders vulnerable the unimpeded pursuit of ends by B. Accordingly, determining how much care is due implicates the right of A to bodily security as well as the right of B to pursue ends by exposing his or her potential victims to some measure of risk. ^{Footnote 83}

On the substantive equality picture, a requirement to exercise additional care to accommodate the victim’s disability gives effect to the qualitative difference between two critical aspects of what makes people’s lives go well: A threshold aspect of bodily security and a freedom aspect of pursuing ends autonomously. It puts a basic egalitarian commitment in our practical lives to the task of setting terms of interaction among substantively equals. Within limits, concern for a person’s life and limb takes some priority over the free pursuit of ends. Tort law’s responsibility to determine what counts as due care can either reject or conform to this view; there is no way around this basic question of equality. Thus, tort law can disregard the difference by treating the respective vulnerabilities of the interacting parties as equally important. On the formal equality picture, disregarding the difference in vulnerabilities at issue reflects the fact that the victim and the injurer relate as equals in the generic sense of being the bearers of the capacity for choice.

Alternatively, tort law can fix the terms of the tort interaction with an eye to the difference in question. On this view, the standard of due care ought to counteract, rather than preserve, the imbalance in the respective vulnerabilities of the interacting parties. Their being the bearers of the capacity of choice is merely the beginning, rather than the conclusion, of tort law’s effort to give effect to the egalitarian commitment of relating as equals. Since the relevant difference at present concerns the parties’ vulnerabilities, to physical harm and to unimpeded pursuit of ends, respectively, there exists a compelling reason to require extra-care on the part of the risk-creator in the face of a disabled risk-taker. That is, the standard of care expected from the risk-creator must accommodate, in some measure, the disability of the victim.

Furthermore, the measure of extra-care can be rendered more intelligible by drawing on the notion of substantive equality to fix its upper boundary (the lower one, as just explained above, is set beyond the non-accommodating standard of reasonable care). To begin with, taking difference seriously need not amount to anything close to the total subordination of the tort-feasor at the hands of the potential victim. A principle of relating as substantively equals cannot correct vulnerability imbalance by reducing the former into a mere means in the service of accommodating the latter. Indeed, under the current negligence regime (which, recall, requires accommodating the victim’s disabilities) the tort-feasor is typically not obliged to forgo his or her freedom of action completely, say, to refrain from going out or engaging in all daily activities merely because of the risk his or her acting generates. ^{Footnote 84} Substantive equality, it can be said, demands accommodation, but only to an extent.

To be sure, introducing an idea of substantive equality in connection with negligence law raises concerns that cannot be addressed here. For instance, there exists any number of questions regarding the appropriate scope and extent of the accommodation to which substantive equality gives rise in different situations and contexts. ^{Footnote 85} I set these questions to one side since my present ambition has been to identify, rather than pursue, the possible existence of substantive equality in private law. In that, I have demonstrated that the Exceptionality Thesis is false not merely theoretically, but also legally—it is not implicit or explicit in the private law doctrine of reasonable care (which, recall, has been the poster child of certain corrective justice accounts). To the contrary, the doctrine at issue can plausibly be recast in terms of the substantive conception of equality.

B. Contract, Property, and Substantive Equality

The intuition that a contract interaction just is a relationship among formally equal persons is hard to resist. People who bargain at arm’s length may differ from one another in any number of ways, including in their capacities, skills, experience, and wealth among others. Accordingly, it may be thought that the only possible way for the terms of their contractual interaction to express some notion of equality at all is by resort to a formal conception of equality. However, I shall argue that it is better to understand the formal equality of the typical contractual engagement not as a freestanding normative ideal, but rather as a conditional one—that is, contractual interaction expresses the formal equality of the interacting parties but only because, and only insofar as, it occurs against the background of (more or less) substantive equality.

The seemingly tight connection between the contract form of interaction and the formal conception of equality is, to an important extent, the product of the various doctrines whose basic organizing idea is that of protecting those whose vulnerabilities to the power of the other party lie below a certain threshold. Such doctrines aim to reduce the risk that the disparities between the parties will make formal equality not just undesirable but rather morally hollow. The reduction in question can be produced by placing three different sets of constraint on the legal practice of contract—concerning the requisite personality to make contract, the scope of permissible manipulation within the contract relationship, and the limits of the contract form itself. Whereas the first can be made compatible with the demands of formal equality, the next two takes difference—and, to this extent, substantive equality—seriously. I shall take each set in turn.

First, some doctrines draw clear and rigid lines between those who possess the requisite legal personality and those who do not—for instance, infants (including grown-up children) and some mentally disadvantaged persons do not possess the legal personality to make an enforceable contractual promise. The second set of constraints consists of doctrines, such as duress, undue influence, and especially unconscionability. This set further constrains the scope of the practice of contract-making even when the participants possess the requisite legal personality and, to this extent, stand in a relationship of formal equality. The doctrines in question display hostility toward a particular transaction based on the worry that participants could not approach their bargain on an equal footing, in which case the contract runs afoul of basic demands of substantive fairness. This is especially vivid with respect to the unconscionability doctrine, according to which contract law ought to protect the vulnerable party—in many cases, the “weak, the foolish, and the thoughtless” ^{Footnote 86} —if (a) she enjoyed only formal, but not “meaningful,” choice and if (b) the terms of the contract unreasonably favor the other party. ^{Footnote 87} It is not surprising that a recurring criticism of this doctrine is that it is a form of paternalistic protection of the poor. But this charge, it is important to note, posits formal choice as the only relevant baseline against which the doctrine can be said to be inconsistent with the freedom to set and pursue ends together by way of contract-making. However, as I have suggested a moment ago, the doctrine in question can also be cast in terms of the law’s commitment on behalf of substantive equality to guard against the excesses of formal equality by preferring meaningful to formal choice. ^{Footnote 88}

Finally, and most dramatically, there exist doctrines that seek to do away with the contractual transaction as a necessary means to receive authorization to use another’s property. Unlike the preceding constraints (with the exception of unconscionability at least when applied beyond the sale of commodities in competitive markets), the one under discussion runs afoul of the demands of formal equality. ^{Footnote 89} Consider the doctrine of private necessity and, in particular, the entitlement of a severely strained owner to use another’s property to save her own property (including or excluding her person). ^{Footnote 90} Normally, securing the ex ante agreement of the latter reflects the status of the interacting parties as formally equal. However, insisting on the parties being formally equal in the face of an unexpected emergency is tantamount to empty formalism. After all, it seems implausible to ignore the disadvantageous position occupied by the strained owner relative to the other party in the interaction. To render this point more vivid, suppose that the latter is present on site, willing to let the former use her property subject to an unusually excessive amount of money. The doctrine of private necessity dissolves this inequality difficulty in a way that goes beyond the doctrines mentioned above (especially duress and unconscionability). ^{Footnote 91} Private necessity sets to one side the basic requirement to secure the consent of the owner, rendering it permissible unilaterally to use this owner’s property to save one’s own. ^{Footnote 92}

A person who needs to invade the property of another because her own property is under imminent danger of grave harm does not stand in a relationship of genuine equality to the owner of the invaded property, at least not for the purpose of engaging in a contractual transaction (again, imagine that the latter would let the former use her property in return for an enormous charge). Against this backdrop, the doctrine of private necessity beats a retreat from the contract form, and the owner’s right to exclude, not because the persons concerned are formally unequal. Rather, the reason is that although they are formally equal, this measure of equality cannot launder the relationship of substantive inequality (in bargaining powers) that exists due to the unusual circumstances. At the same time, it is important to note that the doctrine is not grounded in considerations of distributive equality. ^{Footnote 93} In particular, a partial privilege to make an unauthorized use of another’s property does not express an ideal of equality in the overall distribution of resources in society. ^{Footnote 94} After all, the law confers this privilege in complete disregard of the material well-being of the relevant parties either prior to or after the interaction. As a result, the duty to compensate for the damage occasioned by the privileged user may allow, reinforce, or even exacerbate standing inequalities in the overall distribution of resources in society.

Now, the doctrines just mentioned attempt to reduce the gap between the formal and the non-formal dimensions of equality among parties in a contract. But it may well be the case that some or even all of them currently fail to eliminate this gap, perhaps due to the over-restrictive interpretation of these doctrines by courts (unconscionability being the most obvious case in mind). However, the point I was making is structural, rather than substantive: That the various sets of doctrine in question instantiate legal buffers against the excesses of treating the parties in a contract situation as merely formally equal. In principle, these doctrines can turn what would otherwise be a freestanding ideal of formal equality into one which is conditional on its (loose) compatibility with substantive equality.

To conclude, it is appropriate to replace the Exceptionality Thesis with a more accommodating thesis—that is, that the terms of interactions of at least some, non-trivial areas of private law can be, and already are, grounded in the substantive conception of equality. Another conclusion worth mentioning is that at least with respect to the doctrinal areas just explored, courts do not run into insurmountable difficulties of indeterminacy and ad hocery in determining terms of interactions by reference to the substantive conception of equality.