The Philosophical Significance of the Repo Man
It is time to consider a much neglected topic in legal thought: the philosophical significance of the repo man. Aside from providing the grist for cult movies, the repo man also poses some very basic questions about the nature of the social contract and the autonomy of private law.
The twentieth century was not kind to the idea of private law. Starting with Holmes’s “The Path of the Law” generations of American legal intellectuals have been trained to think of private law as a form of regulation basically indistinguishable from public law. To be sure, the distinctions continue as a matter of curricular convenience, but the almost universal assumption was that there is no real philosophical life in them and that in any case anyone who takes them seriously should be treated as a neo-Langdellian troglodyte. The last decade or so, however, has seen a renaissance in the philosophy of private law. Most dramatically, Ernest Weinrib has argued that private law represents a unique form of moral reasoning. Others have made less sweeping claims, while nevertheless arguing that private law possesses distinctive features that ought to give us pause about treating it as simply another species of regulation whose differences with public law are purely accidental or historical.
In his article on private law for the Oxford Handbook of Jurisprudence and the Philosophy of Law (where do they find these snappy titles?), Benjamin Zipursky argued that one of the key things that must be explained when looking at private law is the fact that it is organized around the idea of a civil cause of action. In other words, private law does not simply enforce social norms on human conduct. Rather, it gives someone who has suffered a legally cognizable wrong the right to pursue a remedy against the wrongdoer in court. Looking at the issue through the lens of classical social contract theory, Zipursky argues that in the state of nature people enjoy a natural right of self-help to extract compensation from wrong doers. The civil right of action represents an imperfect transfer of this right to the state. The state becomes the agent for deciding and enforcing legal claims, but the right to pursue (or not pursue) such claims remains with the individual. And this is where the repo man comes into the picture.
The law of private repossession is not something that most law professors think about. Rather, it gets relegated to a footnote in the class on debtor and creditor relations. Here is the basic gist of it: A person with a valid security interest in some piece of personal property has the right to take the property in the event of default on the loan that the property secures. You don’t have to get a judgment or call the sheriff in. You can sneak into someone’s car port in the dead of night, break into their unpaid-for BMW and drive it away. There are limits of course. The repo man cannot use any kind of physical violence to take the property, and he must retire in the face of opposition from the possessor of the property. Nevertheless, the repo man represents a form a pure self-help existing quite comfortably within our legal system.
Building on Zipursky’s argument, the repo man is another bit of evidence for the thesis that private law represents a Hobbsian world of self-defense and self-help which is partially — but only partially — constrained by the state. Put in another way, the repo man represents the extreme ragged edge of the social contract where the distinction — in Hobbsian terms — between Leviathan and nature becomes porous. If the criminal law represents the pole of social regulation from which the private law has been viewed for a century or more (i.e. “Private law is not private but consists of the enforcement of purely collective norms”), then the repo man represents another pole from which we might look at the core institutions of property, contract, and tort, namely the world of self-help and the war of all against all.