Tort Law

Ernest J. Weinrib

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351760768
• Edition: 1
• Topic: Scienze sociali
• Subtopic: Sociologia

This title was first published in 2002. The first series of The International Library of Essays in Law and Legal Theory has established itself as a major research resource. The rapid growth of theoretically interesting scholarly work in law has increased a demand for a Second Series which includes significant recent work and also gives an opportunity to include additional areas of law. The new series follows the successful pattern established in the first of reproducing entire essays with the original page numbers as an aid to comprehensive research and accurate referencing. Volume editors have selected not only the most influential essays but those which they consider will be of greatest continuing importance. Each volume has an introduction which explains the context and the significance of the essays chosen.

[1]

Corrective Justice

Ernest J. Weinrib^*

Introduction

At private law the sufferers of wrongful harm can recover compensation from those who have wronged them. Such litigation reflects deeply embedded intuitions about justice and personal responsibility. Yet among legal scholars, the nature of private law remains controversial. Some see private law as a mode of public regulation, others as the embodiment of economic efficiency, others as an opportunity for distributive justice, others as a way of attaining justice between the parties, and still others as the repository of our most persistent illusions about the autonomy of law from politics.

The earliest elucidation of private law is Aristotle’s treatment of what he called “corrective justice.”¹ By Aristotle’s day, the rectification of injury through the recognition and enforcement of one party’s claim against the other was a familiar phenomenon. Aristotle, however, was the first to point to the distinctive features of this process: its bipolar structure, its constrained standards of relevance, and its relationship to adjudication. In the history of legal philosophy, private law was Aristotle’s discovery.

The term “corrective justice” still figures prominently in the modern legal literature, especially (though not exclusively) as a counterweight to instrumental conceptions of private law.² However, academic lawyers have paid scant attention to the specific nature and implications of Aristotle’s account. This is unfortunate. Even after more than two millennia, Aristotle provides the clearest exposition of the distinctive structure of private law relationships.

This Article deals with what is both significant and problematic in Aristoüe’s presentation. I begin by recapitulating Aristotle’s position in a way that makes its formalism salient. In response to modern criticism of Aristotle, I argue that Aristotle’s formalism is by no means empty, despite its abstracdon from particular prescriptions. Because Aristotle’s attention to structure enables us to appreciate the distinctive coherence of private law relationships, his account constitutes a decisive contribution to the theory of private law.

Despite his achievement, however, Aristotle’s exposition, like all great pioneer efforts, is seriously incomplete. Aristotle presents corrective justice as a transactional equality, but he does not tell us what the equality is an equality of. This omission is crucial, even if understandable. It is crucial because corrective justice remains opaque to the extent that the equality that lies at its heart is unexplained. The omission is understandable, however, since the very formalism of corrective justice presupposes a formal equality that has become the object of serious reflection only in the last few centuries. Indeed, the measure of Aristotle’s achievement is that his relentless striving to make sense of legal relationships led him to a correct understanding of private law that defied explication in terms of his own ethics.

One purpose of this Article is to fill the lacuna in Aristotle’s account by connecting corrective justice to the legal philosophies of Kant and Hegel. If my argument is correct, the equality of corrective justice is the abstract equality of free purposive beings under the Kantian and Hegelian concepts of right. On this interpretation, the bipolar structure of corrective justice represents a regime of correlative right and duty, with the disturbance of equality in Aristotle’s account being the defendant’s wrongful infringement of the plaintiffs rights. Aristotle’s account of corrective justice thus coalesces with the great modern philosophies of natural right in a single approach to the understanding of private law.

I. Aristotle's Account of Justice

A. Justice as Mean

To a modern reader, the most remarkable feature of Aristotle's account is that he presents corrective and distributive justice as different mathematical operations. Justice, both corrective and distributive, involves the achievement of to isont which in Greek signifies both fairness and equality. In Aristotle's account, fairness as a norm is inseparable from equality as a mathematical function.

Aristotle's conception of corrective and distributive justice as mathematical operations arises out of his general treatment of ethics. For Aristotle, ethics is the study of virtues considered as excellences of character. Just as nothing felicitously can be added to or taken from an excellent work, so excellence of character involves the absence of both excess and deficiency.³ Aristotle analyzes virtues as intermediate states, or means, which lie between vices that are deficiencies or excesses relative to that mean. Courage, for instance, lies between the deficiency of cowardice and the excess of recklessness. Similarly, temperance lies between profligacy and insensibility, generosity between prodigality and stinginess, gendeness between irascibility and apathy, wittiness between buffoonery and boorishness, and so on.

Aristotle begins his account of justice by asking how justice fits into the analysis of virtue as a mean.⁴ The difficulty is that justice has a different orientation than other virtues. While other virtues are excellences of character internal to the virtuous person, jusüce is directed “towards another” (pros allori).⁵ Its reference is not internal but external; it looks not to the perfection of one’s moral being but to the terms of one’s interaction with others.⁶ Whereas virtue is one’s own good, “justice seems to be the good of someone else.”⁷ Given this external focus, how is justice a mean?

One answer is that the external focus changes nothing. Even virtues that are primarily concerned with character have external effects. To use Aristotle’s examples, the coward who deserts in battle and the rake who commits adultery⁸ not only evince defects of character but cause harm to others. The virtues come within the purview of justice once they are regarded from an interpersonal point of view.⁹ Justice so conceived is virtue practised toward others. Because adding the external perspective of justice does not change the nature of virtue, the analysis in terms of means is unaffected. Here, justice is coextensive with virtue.

This, however, is not the entire answer. Aristotle recognizes that not all issues of justice involve external effects of character. The other- directedness of justice figures also in controversies concerning one’s holdings—wealth, honor, and security are Aristotle’s examples.¹⁰ An excess or deficiency in one’s holdings can be unjust quite apart from any vice of character.¹¹ Indeed, being deprived of one’s due is not the exhibition of a dispositional vice at all, but the suffering of a wrong.

When expressed in terms of mean, excess, and deficiency, judgments about vices differ from judgments about unjust holdings. Judgments about vices invoke a spectrum of a single person’s attributes. A reckless person, for instance, exhibits too much (and a coward too little) of the emotion which, if exhibited in proper measure, would make that very person courageous. Excess or deficiency in holdings, however, is interpersonal. The holdings of any one person can be termed “excessive” only through comparison with the holdings of another. So whereas the excess and deficiency of vice is compared to a dispositional mean, the excess or deficiency of an unjust holding reflects the holdings or the actions of others.

Accordingly, if justice in holdings is to be conceived as a mean, that mean must refer not to a person considered singly, but to a relationship between different persons. Aristotle identifies equality as the mean of justice.¹² Equality is a relational concept, because something is equal, not to itself, but only to something else.¹³ Aristotle remarks that “justice is a kind of mean, not in the same way that the other virtues are, but because it belongs to the middle, whereas injustice belongs to the extremes.”¹⁴ Just action lies between the doing and the suffering of injustice, as an equality intermediate to the excess and deficiency on either side of it. To do injustice is to have, compared to the victim of injustice, too much of what is beneficial or too little of what is harmful. Conversely, to suffer injustice is to have too much of what is harmful or too little of what is beneficial.

Justice in holdings is a mean not between vices, but between an excess or deficiency against a baseline of equality. To have just holdings is to have neither too much nor too little in comparison with others. Because it relates one thing to another, equality reflects the purely external orientation of justice in holdings.

Thus, although Aristotle sees both justice in holdings and the justice that is co-extensive with virtue as other-directed, he draws a crucial distinction between them. In the justice that is co-extensive with virtue, equality plays no role: the external standpoint is merely grafted onto a virtue already intelligible in terms of a single person. In contrast, equality is the defining feature of justice in holdings, because justice in holdings is intrinsically other-directed. Thus, the intelligibility of justice in holdings lies in grasping the nature of the relationship between the interacting parties.

Aristotle’s account of justice in holdings assimilates three ideas: justice, equality, and the mean. Aristotle encapsulates the function of these ideas in his remark that “qua mean, it is between certain things (these are the more and the less); qua equal, it links two; qua just, it applies to certain persons.”¹⁵ The last member of this triptych defines the domain of justice: because justice is other-directed and therefore relational, the just applies to a plurality of persons, rather than to a person considered singly. The middle member sums up the formal principle that organizes this domain: because equality involves an ordering of (at least) two terms, it can represent the structure of just relationships. The first member distinguishes justice from injustice: justice is a mean that lies intermediate to the injustices that consist in having more or having less than one’s equal share.

Aristotle’s identification of justice in holdings with equality does not imply that everyone’s holdings ought to be the same in quantity or value. His point is formal. Like equality, justice in holdings orders the relationship between distinct entities; like equality, justice in holdings is disturbed by excess or shortfall. In maintaining that in every just arrangement the parties are equals, Aristotle is not committed to any particular criterion of equality or to any particular set of holdings.

B. Distributive and Corrective Justice

The idea of equality allows Aristotle to describe justice in holdings as mathematical operations. Justice functions for holdings as equality functions for mathematical terms. In mathematics, equality relates one term to another through an equal sign. The specific arrangement of the terms on either side of an equal sign, however, depends on the mathematical operation being performed. Just as different mathematical operations link various elements in different ways, so justice in holdings has different ways of ordering the relations among persons. Aristotle calls these different modes of ordering the “forms”¹⁶ of justice.

Justice in holdings assumes two contrasting forms: distributive justice and corrective justice. Each of these forms regulates holdings through a different mathematical operation. Injustice consists in having more or less than the equal allotment due under one or the other of these mathematical operations.

In introducing the two forms of justice, Aristotle remarks that distributive justice occurs “in distributions” and corrective justice occurs “in transactions.”¹⁷ “Distributions” and “transactions” are general terms that refer to all the particular manifestations of the two forms of justice. A transaction is an interaction regulated in conformity to corrective justice. Similarly, a distribution is an arrangement that has the structure of distributive justice. Distributive and corrective justice are “in” distributions and transactions as the modes of ordering implicit in legal arrangements.

Distributive justice divides a benefit or burden in accordance with some criterion. An exercise of distributive justice consists of three elements: the benefit or burden being distributed, the persons among whom it is distributed, and the criterion according to which it is distributed. The criterion...