1. See, e.g., Miller v. Jackson, [1977] Q.B. 966 (C.A.); Boomer v. Atlantic Cement Co., 257 N.E.2d 870 (N.Y.S.C. 1970).

2. See Restatement (Second) of Contracts (St. Paul: American Law Institute Publishers, 1981), sec. 90; Walton Stores (Interstate) Ltd. v. Maher, 62 A.L.J.R. 110 (H.C. 1988).

3. See, e.g., Greenman v. Yuba Power Products, Inc., 377 P.2d 897 (Cal. S.C. 1963); Escola v. Coca-Cola Bottling Co., 150 P.2d 436 (Cal. S.C. 1944); Restatement (Second) of Torts (St. Paul: American Law Institute Publishers, 1965), sec. 402A. This evolution is traced in George Priest, "The Invention of Enterprise Liability: A Critical History of the Intellectual Foundations of Modern Tort Law," 14 J. Leg. Stud. 461 (1985); see also William Prosser, "The Assault Upon the Citadel (Strict Liability to the Consumer)," 69 Yale L. J. 1099 (1960).

4. R. v. Caldwell, [1981] 1 All E.R. 961 (H.L.).

5. See Richard Posner, The Economic Analysis of Law, 4th ed. (Boston: Little, Brown, 1992).

6. For a pioneering example, see Roscoe Pound, "A Survey of Social Interests," 57 Harv. L. Rev . 1 (1943).

7. For essays representative of this tendency, see David Kairys, ed., The Politics of Law: A Progressive Critique, 2d ed. (New York: Pantheon Books, 1990) Contemporary feminist jurisprudence has been greatly influenced by the psychological research of Carol Gilligan into contrasting male and female moral orientations; see In a Different Voice: Psychological Theory and Women's Development (Cambridge: Harvard University Press, 1982); C. Menkel-Meadow, "Portia in a Different Voice: Speculating on Women's Lawyering Process," 1 Berkeley Women's L. J. 39 (1987); R. West, "Jurisprudence and Gender," 55 Univ. Chic. L. Rev. 1 (1988).

8. Ferdinand Tönnies, Community and Society, trans. Charles Loomis (New York: Harper & Row, 1963).

9. 12 Coke's Rep. 63, 64-65; 77 E.R. 1342, 1343.

10. See Bagg's Case, 11 Coke's Rep. 93b, 77 E.R. 1271. For an excellent commentary on the conflict between common-law theory and political sovereignty, see Gerald Postema, Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986). See also J. A. G. Pocock, The Ancient Constitution and the Feudal Law (New York: Norton, 1967), 30-69, and Patrick Callaghan, The Origin and Evolution of Adjudicative Supremacy (unpublished LL.M. thesis, University of Toronto, 1993).

11. 198 U.S. 45 (1905).

12. See R. Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977), 82-86.

13. The reorientation of the common law toward collective ends is most advanced in the United States, where it has generated a controversial expansion of liability; see Peter Huber, Liability: The Legal Revolution and Its Consequences (New York: Basic Books, 1988); Peter Schuck, "Introduction: The Context of the Controversy," in Schuck, ed., Tort Law and the Public Interest (New York: Norton, 1991), 17-43.

14. See R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299; Proudman v. Dayman, 67 C.L.R. 536 (Aust. H.C. 1941).

15. See Restatement (Second) of Contracts, sec. 90.

16. For a forthright expression of this tendency, see Anne Bottomley and Joanne Conaghan, "Feminist Theory and Legal Strategy," 20 J. aw and Society 1 (1993): "[T]he strength of feminist jurisprudence is tested not by claims to internal coherence but rather by an ability to deliver."

17. In an early edition of his major work on the common law, Richard Posner wrote that it is "essential that the defendant be made to pay damages and that they be equal to the plaintiff's loss. But that the damages are paid to the plaintiff is, from an economic standpoint, a detail"; The Economic Analysis of Law, 2d ed. (Boston: Little, Brown, 1977), 143. Posner explains this "detail" as a bounty paid to the plaintiff to induce him to enforce efficiency-promoting public standards as well as to discourage him from taking wasteful precautions. However, this fails to explain why the plaintiff receives recompense for his loss rather than the amount needed to entice him into public service or the amount needed to make him prefer the loss to the safety expenditure; see Ernest Weinrib, "Understanding Tort Law," 23 Valparaiso Univ. L. Rev. 485, 508-509 (1989).

18. See, e.g., Joseph Singer, "The Player and the Cards: Nihilism and Legal Theory," 94 Yale L. J. 1, 34-35, 51-52 (1984); Frank Michelman, "Justification (and Justifiability) of Law in a Contradictory World," in J. R. Pennock and J. W. Chapman, eds., Nomos, vol. 28: Justification (New York: New York University Press, 1986), 82-87. Cf. Richard Rorty, Consequences of Pragmatism (Minneapolis: University of Minnesota Press, 1982), 164-165; Richard Bernstein, Beyond Objectivism and Relativism: Science, Hermeneutics, and Praxis (Oxford: Blackwell, 1983), 51-79; Thomas Kuhn, The Structure of Scientific Revolutions, 2d ed. (Chicago: University of Chicago Press, 1970), 199-200.

19. Bernstein admits that the idea of good arguments in moral conversation presupposes a community based on shared principles of right, and yet this is just what is lacking in periods of paradigm conflict; see Beyond Objectivism and Relativism, 157-158, 230.

20. Ronald Dworkin, Law's Empire (Cambridge: Belknap Press, 1986); George Fletcher, "Fairness and Utility in Tort Theory," 85 Harv. L. Rev. 537 (1972); Richard Posner, Economic Analysis of Law, above n. 5; Ernest Weinrib, The Idea of Private Law (Cambridge: Harvard University Press, 1995); Ernest Weinrib, "Legal Formalism: On the Immanent Rationality of Law," 97 Yale L. J. 949 (1988).

21. Dworkin, Law's Empire, 78 ff.

22. Richard Posner, The Problems of Jurisprudence (Cambridge: Harvard University Press, 1990), 460.

23. Weinrib, "Legal Formalism," 973.

24. Roberto Unger, The Critical Legal Studies Movement (Cambridge: Harvard University Press, 1986), l.

25. See Duncan Kennedy, "The Structure of Blackstone's Commentaries," 28 Buffalo L. Rev. 205, 210 (1979).

26. Unger, Critical legal Studies, 22-27.

27. G. W. F. Hegel, "Differenz des Fichte;schen und Schelling'schen Systems der Philosophic," in Hegel, Jenaer Kritische Schriften (I), ed. Hans Brockard and Hartmut Buchner (Hamburg: Felix Meiner, 1979), 10.

28. Id., 12.

29. Posner dismisses such an account in a sentence; see problems of Jurispru dence, 329: "The ethics of Kant are too abstract, however, to guide the design of legal doctrines." Posner's dogmatism—his inability to criticize an opponent without presupposing the validity of his own perspective—is also revealed in his response to rights theory in general. His strategy is to reduce the idea of a right to some other instrumentalist (e.g., sociobiological) discourse; see id., 331-332.

30. Hegel's Philosophy of Right, trans. T. M. Knox (Oxford: Oxford University Press, 1967), par. 211.

31. For a criticism of such approaches, see Weinrib, "Legal Formalism," 955-957.

32. G. W. F. Hegel, Phänomenologie des Geistes (Hamburg: Felix Meiner, 1952), 45 (my translation).

33. See Weinrib, "Legal Formalism," 995-999.

34. Id., at 975.

35. See Wayne Sumner, The Moral Foundations of Rights (Oxford: Oxford University Press, 1987), 175—198.

36. John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), 298-308.

37. The reader will no doubt think here of Bentham's polemic against Black-stone; see Jeremy Bentham, A Fragment on Government and An Introduction to the Principles of Morals and Legislation (Oxford: Blackwell, 1967), 3-112.

38. The Laws of Plato, trans. T. Pangle (New York: Basic Books, 1980), 865d-867b, 872d-873a.

39. Id., 860d-863a, 870d-871c.

40. See G. W. F. Hegel, Natural Law, trans. T. M. Knox (Philadelphia: University of Pennsylvania Press, 1975), 93 ff.

41. Id., at 93.

42. See, e.g., Ernest Weinrib, "Right and Advantage in Private Law," in D. Cornell, M. Rosenfeld, and D. Carlson, eds., Hegel and Legal Theory (New York: Routledge, 1991), 258-284; Peter Benson, "Abstract Right and the Possibility of a Nondistributive Conception of Contract: Hegel and Contemporary Contract Theory," 10 Cardozo L. Rev. 1077 (1989).

43. See Alexandre Kojève, Introduction to the Reading of Hegel, ed. Allan Bloom (New York: Basic Books, 1969), 19.

44. Here I have tried to describe a generic notion of friendship broad enough to include the three species Aristotle discusses, namely, friendships based on mutual pleasure, mutual advantage, and mutual admiration of excellence; see Nicomachean Ethics, VIII, 1155b-1157b.

45. The Complete Writings of Thucydides: The Peloponnesian War, trans. R. Crawley (New York: Modern Library, 1934), 104.

46. G. W. F. Hegel, Phenomenology of Spirit, trans. A. V. Miller (Oxford: Oxford University Press, 1977), 279-289.

47. My use of this phrase should not be confused with that of Richard Bern-stein in Beyond Objectivism and Relativism, 159, 230. Bernstein uses the phrase to designate a community with shared ethical norms, one within which meaningful argument can take place regarding the meaning and application of those norms in concrete situations. I use the phrase to designate (a) the relation of mutual recognition between community and the atomistic self and (b) the diverse instantiations of this relation in the bonds of mutual respect and concern between persons that form the matrix of valid rights.

48. Examples are Ernest Weinrib, "Right and Advantage in Private Law"; Peter Benson, "The Priority of Abstract Right and Constructivism in Hegel's Legal Philosophy," in Cornell, Rosenfeld, and Carlson, eds., Hegel and Legal Theory, 174-204.

49. Thus, Charles Taylor devotes two pages (428-429) to abstract right in his otherwise excellent Hegel (Cambridge: Cambridge University Press, 1975) and does not discuss it at all in Hegel and Modern Society (Cambridge: Cambridge University Press, 1979). He reads Hegel as seeking a reconciliation between modern individual autonomy and classical communitarianism, but he then gives an undia-lectical twist to this harmony when he sees it as rejecting atomism and as constituting a "larger life" in which individuals are "immersed" (Hegel, 374). Taylor cannot seem mentally to encompass a harmony of communitarianism and atomism; but this is not surprising, since he regards Hegel's ontology as "near incredible" (Hegel and Modern Society, 135). For other examples of a one-sidedly communitar-lan reading of Hegel, see Allen Wood, Hegel's Ethical Thought (Cambridge: Cambridge University Press, 1990), 101-104, 195-208, 258-259; Steven Smith, Hegel's Critique of Liberalism (Chicago: University of Chicago Press, 1989), 127-131, 136-145, 232-246; Seyla Benhabib, "Obligation, Contract, and Exchange: On the Significance of Hegel's Abstract Right," in Z. A. Pelczynski, ed., The State and Civil Society: Studies in Hegel's Political Philosophy (Cambridge: Cambridge University Press, 1984), 159-177.

50. Domestications of Hegel's philosophy abound in the Anglo-American literature on him. Usually this takes the form of extracting Hegel's statements from the framework of his dialectical logic to make them palatable to a contemporary audience. An extreme example is offered by Z. A. Pelczynski's introduction to Hegel's Political Writings, trans. T. M. Knox (Oxford: Clarendon Press, 1964), where Hegel appears as a thinker whose "theory of the modem state . . . is not radically different in approach, method of argument, and level of theorizing from the political theory of Hobbes, Locke, Montesquieu, or Rousseau" (135). More recently, Mark Tunick has offered us a "rehabilitated" Hegel whose wisdom can be "appropriated" by reading him as a good Rortyan pragmatist who dissolves knowledge into interpretation, for whom "laws of right merely describe the customs and practices we share as an ethical community" and for whom an institution is justified if it "shapes us, becomes a part of ourselves"; see Hegel's Political Philosophy (Princeton: Princeton University Press, 1992), 4, 14, 17, 32, 103.

51. Emil Fackenheim, The Religious Dimension in Hegel's Thought (Boston: Beacon Press, 1967), 83.

52. Hegel, Phenomenology, 48-57.