Conceptual Change in the Emergence of Tort Law

Becoming Responsible: Conceptual Change in the Emergence of Tort Law A Dissertation SUBMITTED TO THE FACULTY OF UNIVERSITY OF MINNESOTA BY Caleb Goltz IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY Dr. Joan Tronto, Adviser December 2015 © Caleb Goltz 2015 Acknowledgements During the course of this project, many people have helped in many ways. The initial framing of the project began under the direction of Nancy Luxon, and her early input shaped the structure of this project. Joan Tronto served as a patient adviser, providing graceful guidance all along the way. Elizabeth Beaumont stuck with this project from conception to completion, and provided an invaluable legal perspective on the project. JB Shank generously kept an eye on my historical accounts, and shared his love for the Fenlands. Graduate colleagues at the University of Minnesota also shaped this project and provided support along the way. Members of the Whirling Dervishes Dissertation Writing Group – Josh Anderson, Jen Gagnon, Andrew Wiley, Sema Binay, and Dara McCracken – read and commented on early drafts of several chapters. Adam Dahl, Garnet Kindervater, and Chase Hobbs-Morgan listened to me pitching early versions of these ideas with patience and enthusiasm. The fieldwork for this project was funded by a 2011 Hella Mears Graduate Fellowship from the Center for German and European Studies at the University of Minnesota. Writing during the 2012-2013 academic year was funded by a Marbury- Efimenco Fellowship from the Department of Political Science at the University of Minnesota. I am very grateful for those research funds. My colleagues in the Political Science Department at Hartwick College have been tremendous as I have slowly finished the writing process. Laurel Elder, Jim Buthman, Amy Forster Rothbart, and Mary Vanderlaan have been better colleagues than anyone could reasonably request. Finally, I would like to thank my parents, Kendall and Becky, for teaching me to love reading and the life of the mind. Most of all I thank my wife, Erin, who has seen this project from start to finish with patience and grace. i Table of Contents List of Figures …………………………………………………………………….. iii Introduction ……………………………………………………………………….. 1 Chapter 1: Ordinary Responsibility ………………………………………………. 39 Chapter 2: Sacred Irresponsibility ………………………………………………... 85 Chapter 3: Forces of Irregularity ………………………………………………… 122 Chapter 4: The Legalization of Foresight ……………………………………….. 159 Conclusion ………………………………………………………………………. 196 Bibliography ……………………………………………………………………... 209 Appendix ………………………………………………………………………… 219 ii List of Figures Figure 1: Cressey Dymock, Farmstead Plan (1652) .….……………………………. 137 Figure 2: Cressey Dymock, Sketch (1651) ...………………………………………... 139 iii Introduction This project is an examination of the dynamics by which standards of responsibility changed in seventeenth century England, and it argues that our current models of responsibility are partial in the sense that they focus on elements of responsibility that remain fixed, while overlooking the significant role conceptual change plays in determining the sorts of behaviors that can be expected of citizens. The conceptual framework within which claims to responsibility are made both limits and motivates new forms of responsibility, as well as the sorts of citizens that people are able to become. Understanding the processes by which responsibility has previously changed is important today as we often find our efforts to hold people responsible frustrated, and our abilities to address emergent wrongs stymied. Today, in moments of outrage, we often want to hold the guilty responsible, or at least see them held responsible. For those who live in a country with a representative government, it seems that the practices of responsibility ought to in some way represent the aspirations of the citizenry. Yet, our most serious efforts to hold people responsible often either fail or feel inadequate, and as a result the language of responsibility can feel like trite moralizing in a tough-minded world. The problem is not a lack of executive power rendering our attempts at responsibility inadequate. Rather, if we understand practices of responsibility as part of a larger “politically emancipatory” project that frees 1 citizens through participation, a failure of responsibility looks like a failure of that larger project of political emancipation.1 Coming to terms with the mismatch between our desires for responsibility and our successes and failures in holding people responsible is an important part of giving an account of our political place in modernity since practices of responsibility touch on many of our most pressing problems. Robert Putnam has recently renewed his long- running argument that a breakdown of responsibility between people and between generations is at the heart of American inequality. The beginning of a solution to class and generational inequality, he argues, is to, “acknowledge our responsibility to [poor] children. For America’s poor kids do belong to us and we to them. They are our kids.”2 Taking responsibility for inequality within our communities is both spatial and temporal: those kids live over there and represent a future that is coming into being. Yet, when confronted with the task of making responsibilities binding, especially through the legal system across space and time, we are often confounded by uncertainty, complexity, and the limitations of the legal form to control other forms of governance, like global economic pressures. In assessing the process of assigning responsibility after the 2008 financial crisis, former Federal Reserve Chair Alan Greenspan cautioned that our natural “inbred sense of justice in seeking to punish wrongdoers” was bound to be unfulfilled. 1 Margaret Urban Walker, Moral Contexts, (Lanham, MD: Rowman and Littlefield, 2003), pg. 104. 2 Robert Putnam, Our Kids: The American Dream in Crisis, (New York: Simon and Schuster, 2015), pg. 261. 2 “Revenge may be soul satisfying,” he argued, “but it is rarely economically productive.”3 We inhabit a world that both requires responsibility and disables some forms of it, revealing that our aspirations and practices of responsibility are fissured. Our practices of responsibility are fissured because we want them to be at once participatory, democratic, and egalitarian, but also to have the force of law when appropriate. To some degree this diversity of socially held expectations and aspirations is fulfilled by formally and informally putting responsibility on a continuum and vesting the authority of enforcement in people ranging from parents to police: practices of holding people responsible range from a stern glance to a death sentence. The deal we have made in modernity is that everyone gets to participate in stern glances, very few participate in death sentences, and many of our daily actions fall somewhere in a contested middle of who has authority to assign responsibility, how, and why. For every Putnam who would like a broad and inclusive discussion about mutual obligation, there is a Greenspan insisting that the task be left to experts lest the delicate balance of our moral and material economies be disrupted. The contest over who participates, how, and on what terms in the assignment of responsibility is an essential part of our practices of responsibility. Some scholars argue that there is or ought to be a positive relationship between political inclusion and participation in practices of responsibility. Yet, by examining the emergence of modern standards of responsibility during the seventeenth century in England, the link between responsibility and emancipation seems oppositional. Even as the English were engaged in popular revolution, there was a simultaneous 3 Alan Greenspan, The Map and the Territory 2.0: Risk, Human Nature, and the Future of Forecasting, (New York: Penguin, 2013), pg. 237. 3 counterrevolution undercutting popular participation in formal practices of responsibility. Even as representation increased, traditional popular mechanisms of responsibility were repressed and lost authority. The democratization of the English state also included the centralization of the authority to hold people responsible in the hands of state agents, so that the relationship between democratization and popular participation in practices of responsibility is negative rather than positive. Which is not at all to say that the forces of popular participation in practices of responsibility were indifferent. They just lost. And while this is a story of how the state centralized the authority to define, assign, and punish irresponsibility, it is also a story of how traditional actors and agents of responsibility were defeated. I am not the first to notice the counterrevolutionary forces of modernity that attached themselves to democratization. Scholars ranging from James Tully, to Stephen Holmes, to Michael Hardt and Antonio Negri have all differently made the case that the early modern project of democratization was accompanied by new forms of power and governance that constricted the horizon of political possibilities by centralizing juridical power in the hands of experts.4 I build on their insights here, showing how the legal form of holding citizens responsible for harm developed in a similar manner that drained power from local and traditional offices and put that power in the hands of national agents of the Crown. 4 James Tully, An Approach to Political Philosophy: Locke in Contexts (Cambridge:

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