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Quantum Physics in Private Law

Published online by Cambridge University Press:  09 June 2015

Avner Levin
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IzhakEnglard argues that Ernest Weinrib's idea of coherence in private law, based solely on corrective justice, must be modified to include distributive justice in order to better fit legal practice. Englard proposes complementarity, a framework accommodating mutually exclusive scientific concepts, as a basis for private law’s coherence, based on an analogy between the concepts of light and justice. This analogy is insufficient as an epistemological basis common to science and law upon which complementarity can be applied as Englard suggests. Despite Englard's failure complementarity may yet be applicable to law, based on an epistemological 'problem of observation' that science and law share.

Type
Discussion
Information
Canadian Journal of Law & Jurisprudence , Volume 14 , Issue 2 , July 2001 , pp. 249 - 260
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2001

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References

1. Englard, Izhak, The Philosophy of Tort Law (Brookfield, VT: Dartmouth Publishing, 1993) 55, 85-90 Google Scholar [hereinafter Englard]; Weinrib, Ernest, The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995)Google Scholar [hereinafter Weinrib]. Englard discussed Weinrib's theory based on articles that were later incorporated into The Idea of Private Law. For a complete list of these, see Weinrib, ix.

2. As developed mainly in Calabresi, Guido, The Costs of Accidents (New Haven, CT: Yale University Press, 1970)Google Scholar [hereinafter Calabresi] and Posner, Richard, Economic Analysis of Law. 3rd ed. (Toronto: Brown, 1986)Google Scholar. [hereinafter Posner].

3. Weinrib, supra note 1 at 9 (footnote omitted).

4. Ibid. at 10.

5. Ibid. at 11.

6. Ibid. at 12.

7. Ibid. at 11-14.

8. Ibid. at 14-16.

9. Ibid. at 16.

10. Ibid.

11. Ibid. at 16-18.

12. Ibid. at 18.

13. Ibid. at 19.

14. Ibid.

15. Ibid. at 43-44.

16. Ibid. at 43.

17. Aristotle, , Nicomachean Ethics, trans. Ostwald, Martin (New York: Bobbs-Merrill, 1962) Book V at 117 [hereinafter Aristotle].Google Scholar

18. Ibid. at 120.

19. Ibid. at 122.

20. Ibid.

21. Ibid. at 119-120.

22. The contentious issue, of which Aristotle of course was aware, is how initial ratios between the sides are to be determined. Should they involve considerations of wealth, merit, status or some other standard? Whatever the standard may be, it does not change the manner in which distributive justice is applied. Ibid. at 118-119.

23. Weinrib at 71.

24. Ibid.

25. Ibid. at 72-75.

26. Ibid. at 76.

27. Ibid. at 74.

28. See generally Posner.

29. Englard at 32-33.

30. See generally Calabresi.

31. Englard has termed Calabresi's approach, consequently, as ‘radically functional’. See Englard at 32.

32. Such as the famous Learned Hand formula.

33. Englard at 42.

34. Weinrib, I should note, is not concerned by legal practice turning against his idea of private law, since his theory is prescriptive, in the sense that it is a program for the improvement and refinement of private law. Weinrib at 16.

35. Englard at 85-90.

36. Take one of Englard's own examples, Commercial Standard Insurance v. Bank of America, (121 Cat. Rep. 91 (1976)) where the court addresses different corrective and distributive considerations within one paragraph (on page 95) with no attempt to separate them or account for their contradiction.

37. See Priest, George, “Satisfying the Multiple Goals of Tort Law” (1988) 22 Val. U. L. Rev. 643.Google Scholar

38. Indeed, one could argue that a ‘strict’ instrumentalist, one who insists that law is nothing more than a tool for achieving social goals, must necessarily reject complementarity. For complementarity shows law to have (as do all other attempts to understand law in a coherent manner) intrinsic value other than the value of being an instrument in the service of more important social goals.

39. This term has no legal connotations here.

40. Bohr's understanding of complementarity, upon which I elaborate below, is largely developed in two articles. The first is Bohr, Niels, “Discussion with Einstein” in Schilpp, Paul, ed., Albert Einstein: Philosopher-Scientist (LaSalle, IL: Open Court, 1949)Google Scholar. The second is Bohr, Niels, “Causality and Complementarity” in Bohr, Niels, Essays 1958-1962 on Atomic Physics and Human Knowledge (New York: Interscience Publishers, 1963).Google Scholar

41. Although not necessarily the way in which scientific research is conducted. See, for example, Kuhn, Thomas, The Structure of Scientific Revolutions, 2nd ed. (Chicago: University of Chicago Press, 1970).Google Scholar

42. See also Folse, Henry, The Philosophy of Niels Bohr (New York: Elsevier Science Publishing, 1985) at 67-70.Google Scholar

43. For more on how Bohr came to this conclusion see Murdoch, Dugald, Niels Bohr's Philosophy of Physics (New York: Cambridge University Press, 1987) at 34-56.CrossRefGoogle Scholar

44. Bohr himself tried to expand the ‘epistemological lesson’ of complementarity, as he called it, to other disciplines such as biology and psychology. See Bohr, Niels, “Discussion with Einstein” in Schilpp, Paul, ed., supra note 40 at 224, 236.Google Scholar

45. Englard at 64-65.