Abstract
The recognition of the particular in law is crucial and any good lawyer or judge should be able to correctly establish the potential instantiation of the abstract into the particular. This is the task of the so called ‘determination’. Therefore, we require an explanation of how this can be achieved. Weinrib, in his influential book Reciprocal Freedom, elucidates the dynamic relationship of transforming the abstract into a determination through two distinct forms. First, the determination may instantiate the abstraction “under which it falls and to which it is accordingly subordinate.” The second form occurs when a particular determination is a component of a broader set of abstractions. In both scenarios, "the determinations define the abstractions, and the abstractions govern the determinations."
If we engage with particulars as acts of instantiations, it is unclear where the exercise of practical judgement will be located and how this is different from a process of theoretical deduction from general laws or abstract concepts to particulars.
There is a substantive and normative difference in our engagement with theoretical judgments and the exercise of practical deliberation and judgment, either in the forward-looking perspective, i.e., when we are trying to answer the question as a citizen or judge of "What Shall I Do?" or the backward-looking perspective, when the judge is trying to determine the correlativity relationship, i.e., the right that has been violated and the corresponding duty of the defendant.
I will argue that determination can only occur through the application of practical reason, and that this process necessitates a forward-looking deliberation that aligns with what is valuable and good, rather than solely focusing on what is right and dutiful. I will demonstrate this indirectly by arguing that the fundamental premise of Weinrib's view is 'the separation of rights and values'.
I aim to debunk this presupposition and argue, first, that judges and citizens need to grasp the values embedded in the law in our ‘doing’ and in our engagement with the law. This does not imply that we are engaging with external values, rendering the internal logic of private law unintelligible. Second, I will show that from the forward-looking perspective of the citizens and judges, there is no stark separation of rights and values.
Reciprocal Freedom is an illuminating, thought-provoking, and rich monograph. As is usual in all his writings, Weinrib shows a perceptive, nuanced, and insightful position on the nature of private law. In this new book, he invites us to rethink our assumptions concerning the stark distinction between private and public laws.