This emphasis on law as a mechanism of state enforcement sits comfortably within most liberal narratives about the proper role of the law. Liberalism begins with an appreciation for the coercive capacity of the state and the need to confine it to its proper sphere. There is, of course a lively intra-liberal debate about what the proper role should be. Classical liberals and libertarians insist that the reach of the state must be sharply limited.44 Modern egalitarians, so-called “high liberals,” insist on the need for the state to act to ensure just distributive outcomes.45 Both schools of thought,
however, focus their attention on the agency of the state and view law as an instrument of that agency. Hence, the focus of the duty and the cost theories is on what the state does to those that are civilly liable. Asking a simple question reveals the problem with this approach: if I breach a contract, commit a tort, or do some other private wrong, what would the state do to me? Upon a moment’s reflection, the answer is “Nothing at all.