INDIVIDUAL RESPONSIBILITY

In the previous section, we saw that the default vertical approach articulates a conception of freedom that treats individuals as abstract wills, shorn of the mate­rial background within which freedom can be exercised and made meaningful.

The separation of law from socio-economic history on which late 19th century juris­prudence came to insist programmatically - when jurisprudence came to ignore socio-economic baseline questions dogmatically... made it plausible to look upon public law relations as vertical power relations (between superiors and inferiors) and upon private law relations as horizontal relations (between equals).^[79]

As the above quote indicates, much like the conception of freedom, this concep­tion of equality and responsibility depends upon separating law from the material (socio-economic) bases that form the environment within which indi­viduals act.^[80] And once this background is taken out of the equation - or, to put it more precisely, rendered non-normative - it can be argued that because individuals within the private sphere are operating within the same plane, the correct characterisation of their relationship is not that of a rights holder and a duty bearer. Rather, it is of two contracting parties who are responsible for setting the terms of their relationship, characterised by the legal concept of the contract.

This third axis of the default vertical approach is also indicated in the Civil Rights Cases, where the majority judgment drew a direct comparison between the legislative interference wrought by the Civil Rights Act and potential legisla­tive interference with the power to contract.^[81] As Ira Nerken points out in her analysis of the judgment, the majority viewed civil rights violations in the ‘private sphere’ as ‘discrete, isolated, individual transactions, the outcome of which was determined by the individual circumstances’.^[82] The majority’s suggestion to the victims of discrimination - that they take up their grievance with the local state authorities^[83] - further indicates that it considered the set of individual transac­tions that the Civil Rights Act sought to take cognisance of and proscribe as ‘a bargain between equal citizens in a neutral state’.^[84] Nerken makes the additional important point - one that I shall return to in chapters four and five - that a corollary of this set of assumptions involving freely contracting citizens who must be held responsible for the bargain they make is ‘an atomization of social problems’.^[85] In other words, instead of treating private discrimination as an instance of institutional racism, the majority viewed it as a set of isolated events, detached from its institutional background.

While the link between the default vertical approach and the concept of indi­vidual responsibility was only implicit in the Civil Rights Cases, it was spelt out with much greater clarity in Virginia v Rives,^[86] one of the three state action cases that preceded the Civil Rights Cases. Elaborating upon the interpretation of the Fourteenth Amendment, the concurring opinion in Rives noted that:

The denial of rights or the inability to enforce them, to which the section refers is, in my opinion, such as arises from legislative action of the State, as, for example, an act excluding colored persons from being witnesses, making contracts, acquiring property, and the like.

Just as the Civil Rights Cases majority drew a distinction between ‘impair­ment’ (caused by the state, subject to the bill of rights) and ‘invasion’ (caused by private parties, unconstrained by the bill of rights), with the right itself remaining ostensibly intact in case of an ‘invasion’, Rives also sought refuge in terminology. When the state acted, it was a ‘denial’ of rights, and the bill of rights was immediately attracted. On the other hand, the acts of non-state parties constituted mere ‘obstacles’, which were of no constitutional concern.

But the terminology again is revealing. A denial of rights immediately suggests moral culpability and the need for a remedy. An ‘obstacle’, on the other hand, suggests a natural impediment that, as Rives notes, individuals take responsibility for negotiating past or around. This ‘naturalness’, and therefore normative insignificance, of certain kinds of inequalities was made particu­larly clear in Coppage v Kansas,^[88] a judgment delivered during the peak of the Lochner era (which represented the high-water mark of the supremacy of the freedom of contract in US jurisprudence). Striking down a law that restrained an employer from inserting a clause in the employment contract prohibiting the employee from joining a labour union, the Supreme Court noted that:

[I]t is from the nature of things impossible to uphold freedom of contract and the right of private property without at the same time recognising as legitimate those inequalities of fortune that are the necessary result of the exercise of those rights. (emphasis added)^[89]

The link between the concept of individual responsibility (‘freedom of contract’) and the treatment of the background socio-economic context as non-normative (‘inequalities of fortune’) was thus made clear. As Van der Walt points out, the dichotomy was between the propositions that ‘any tolerance of hierarchies in public life must be subjected to express and conscious justification...

Furthermore, this way of thinking was not limited to the doctrinal jurispru­dence of the USA. In his study of the evolution of private law in the Western legal world, Gongalo de Almeida Ribeiro makes the following observation about the prevailing legal philosophy on the European continent, at around the same time that cases such as Rives were being decided:

Within a rightful legal order, persons waive their rights at their discretion, enter contracts that oblige them before other persons, and are liable to right their wrong­doings - in the eyes of the law they are abstract wills, universally free and equal. Savigny and his followers held this theory to be immanent in a major division of the legal order they called ‘patrimonial law’, comprising the law of obligations and prop­erty law - that is, human relations over commodified goods. The nineteenth century jurists contrasted this patrimonial law, essentially universal, with both public law, a normative order that expresses the particularities of a people, and family law, a realm of private relations between unequal and mutually dependent persons (husband/wife, father/child, and master/servant). (emphasis added)^[91]

As with sovereignty and freedom, this third axis of the default vertical approach is congruent with a dominant intellectual current of the time, as well as the evolving material social relations. The mechanism of the contract was viewed as freeing individuals from (feudal) hierarchies that were symbolised by predetermined status.^[92] Henry Maine’s influential book, Ancient Law, written in 1861 - just a few years before Rives and the Civil Rights Cases were decided - became particularly famous for arguing that the development of society resulted in a shift from ‘status’ to ‘contract’: private law was characterised by its oblivious­ness towards individual status, and by treating parties as equal, autonomous agents.^[93] And this was achieved through the central, structuring legal device of the contract.

Maine was far from the only person to make this point: in his critique of political economy, Karl Marx - to whom I shall return later in this book - noted that ‘the exchange of exchange values is the productive, real basis of all equality and freedom’.^[94] In his analysis of this passage, Marcel Van Der Linden notes that:

If person A and person B want to do business because A offers a commodity for which B is prepared to pay money, then A and B must recognise each other as contracting parties with equal negotiating rights, as owners of private property, each with their own independent will. Freedom and equality of negotiating status are therefore struc­tural elements in the exchange process between commodity owners.^[95]

Writing in the same tradition, a few decades after Marx, Evgeny Pashukanis argued that the ‘general structure of bourgeois law, including its system of rights and its pretence of formal equality, represents a formalisation of the social relations of capitalist society’.^[96] Interestingly, interpreters of Pashukanis have argued - in language strikingly similar to that deployed by Nerken (see above) - that, in essence, his commodity-form theory of law argues that the capitalist exchange economy and a legal regime that treats individuals as ‘“atomized” legal personalities’^[97] are co-constitutive. We can therefore see the link between the idea of (atomised) individual responsibility, the legal device of the contract and the emerging capitalist economy in the backdrop of which both the above concepts evolved.

Indeed - and to deepen the argument further - this development was reflected within the evolution of contract law itself. In response to an emerging market economy, the nineteenth century saw the triumph of the ‘will’ theory of contract, which consciously rejected material differences between contracting parties and assumed equality in all normative respects.^[98] As Horwitz puts the point:

Substantive justice, according to the earlier view [of contract law], existed in order to prevent men from using the legal system in order to exploit each other.

Consequently, and moving beyond the realm of contract, in a broader sense, the dominant intellectual view was that:

the principle of equal freedom, which prevented the rule of some members of society over others and permitted obligations between citizens solely on a voluntary basis, provided protection against private exploitation or domination. In this way, everyone had the opportunity to pursue their own advantage, and no one could be compelled to engage in transactions to their own detriment. Thus, voluntary agreement - what­ever form it might take - engendered no injustice. (emphasis added)^[100]

Thus, as Gongalo de Almeida Ribeiro notes, there was a ‘structural homology between the will theory and the picture of the exchange economy, particularly with respect to the abstract conception of the person common to both’.^[101] Consequently, to the extent that the private sphere was composed of autonomous individuals contracting on a voluntary basis, everyone could be held responsible for the outcomes of these freely bargained-for contracts. The domain of the private sphere could thus remain insulated from the application of rights.^[102]

VI.