“O que você já tem”: propriedade e responsabilidade civil em Arthur Ripstein

Abstract

The general objective of this research is to analyze the consistency between the theories of property and torts developed by Arthur Ripstein. The work goes through the books Force and Freedom (2009) and Private Wrongs (2016); as well as performs a test of the objections raised by the critics. This test of (in)consistency occurs from four hypothesis. First, that the property theory on which Ripstein is anchored is sufficient to produce a scenario in which individuals act within reciprocal limits. Second, that by presupposing the right to the body and property, Ripstein's theory of torts manages to be sufficient to guarantee that such rights are exercised independently. Third, that by considering property rights as given and justified in independence between individuals, the basic rationale fails to address the distribution of property and indicates that some instrumentalism seems to be necessary. Fourth, that Ripstein manages to provide a theory entirely founded on the idea of freedom as independence. All hypotheses were refuted, except for the first part of the third hypothesis outlined. In this work, I defend my thesis that Ripstein is unable to provide a theory entirely based on freedom and, more than that, that by failing to explain the contours and limits of omnilateral authorization, it is not possible to assess what can be demanded regarding collective decisions on the distribution of property, as well as how this impacts protection through tort law. Thus, even trying to detach torts from property in the third stage of the idea of independence, the inaccuracies of this third stage reverberate in Ripsteinian theory of torts. These issues contribute to the fact that, in the end, there is a partial consistency between the theory of property developed by Arthur Ripstein in Force and Freedom and his theory of torts proposed in Private Wrongs.