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The Problem of Dependency of Corrective Justice: Corrective Entitlements and Private Transactions

Published online by Cambridge University Press:  08 February 2019

Helen Eenmaa-Dimitrieva
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Abstract

Several legal philosophers have argued that the principle of corrective justice provides the best explanation of various areas of the law—especially the law of torts. On the other hand, some philosophers of law and many economists of law have argued that the principle of corrective justice is not an independent principle of justice. I call this the problem of dependency. If the critics are right, the principle of corrective justice cannot be an explanation of a large area of our law as it claims to be.

I argue that the increasingly complex forms of the problem of dependency that the critics have proposed lose their force once we have a better understanding of the principle of corrective justice and its relationships with other principles. The principle of corrective justice does not serve a conception of distributive justice or efficiency and can provide an explanation of a large area of our law despite the criticism. It does so independently as a principle of justice that is reflected in our legal practice.

Keywords

corrective justicedistributive justicedependencyefficiencyprivate lawtort lawentitlementsprivate transactions
Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 32 , Issue 1 , February 2019 , pp. 59 - 82
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2019 

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Footnotes

This Article has benefited substantially from comments received from Scott Shapiro, Jules Coleman, Daniel Markovits, Lewis Sargentich, and Frances Kamm as well as the discussions at the Harvard Graduate Legal Philosophy Colloquium and Yale Doctoral Scholarship Conference on Law and Responsibility. I am grateful to Leora Katz, Helmut Ortner, Eric Brunstad, Gustavo Ribeiro, Catarina Barbieri, María Guadalupe Martínez, Aparna Chandra, and Daniel Maggen for invaluable questions and conversations about the foundations of this paper.

References

1. Coleman, Jules L, “The Costs of The Costs of Accidents” (2005) 64:1 Md L Rev 337 at 352.Google Scholar

2. Coleman, Jules L, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory (Oxford University Press, 2001) at 32Google Scholar [Coleman, The Practice of Principle].

3. I have defined the principle of corrective justice in a similar manner in an article on the problem of emptiness of corrective justice.

4. For example, Richard Posner has suggested that corrective justice may serve the principle of efficiency, since the former appears to leave open what counts as a wrong, and the wrongs that give rise to a duty of repair may simply be failures to take cost-justified precautions.

5. Gardner, John, “What is Tort Law For? Part 1: The Place of Corrective Justice” (2011) 30:1 Law & Phil 1 at 17.CrossRefGoogle Scholar It is also possible to understand DJ in a different manner, which is according to treatment-based conceptions.

6. Keating, Gregory C, “Is Tort a Remedial Institution?” (2010) University of Southern California Law School Law and Economics Working Paper Series Paper 117 1 at 10, online: http://law.bepress.com/usclwps-lewps/art117.Google Scholar

7. It is also possible to understand DJ in a different manner, which is according to treatment-based conceptions. In this work, we shall be mostly discussing DJ with the help of holdings-based conceptions, while acknowledging that this is not the only way to view DJ.

8. Coleman, Jules, Scott, Hershovitz & Gabriel, Mendlow, “Theories of the Common Law of Torts” in Zalta, EN, ed, The Stanford Encyclopedia of Philosophy (2015).Google Scholar

9. Ibid.

10. Ibid.

11. Coleman, The Practice of Principle, supra note 2.

12. Coleman, Jules L, Risks and Wrongs (Oxford University Press, 2002) at 350-54CrossRefGoogle Scholar [Coleman, Risks and Wrongs].

13. Perry, Stephen R, “On the Relationship between Corrective and Distributive Justice” in Jeremy Horder, ed, Oxford Essays in Jurisprudence Fourth Series (Oxford University Press, 2000) 237 at 261.Google Scholar

14. Coleman, Risks and Wrongs, supra note 12. Perry, supra note 13 at 260

15. Perry, supra note 13 at 261.

16. James Gordley, “Equality in Exchange” (1981) 69:6 Cal L Rev 1587. Perry, supra note 13 at 260.

17. Perry, supra note 13 at 260.

18. Coleman, Hershovitz & Mendlow, supra note 8. Perry, supra note 13 at 239.

19. Perry, supra note 13 at 258-59.

20. Peter Benson, “The Basis of Corrective Justice and Its Relation to Distributive Justice” (1992) 77:2 Iowa L Rev 515 at 530. Dennis Klimchuk, “On the Autonomy of Corrective Justice” (2003) 23:1 Oxford J Legal Stud 49 at 55.

21. Benson, supra note 20 at 530-31.

22. Ernest J Weinrib, The Idea of Private Law (Oxford University Press, 1995) at 79. Klimchuk, supra note 20 at 55.

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24. Perry, supra note 13 at 254.

25. Ibid at 259.

26. Ibid at 237.

27. Ibid at 262.

28. Ibid at 257.

29. Ibid at 261.

30. Ibid at 263.

31. Benson, supra note 20 at 529-49. Weinrib, supra note 22 at 451-52. Perry, supra note 13 at 240.

32. Perry, supra note 13. (Notice that Rawls in contrast, would consider equal liberty a matter of DJ as well. See John Rawls, A Theory of Justice (Harvard University Press, 1999) at 53.)

33. Perry, supra note 13 at 259.

34. Klimchuk, supra note 20 at 61.

35. Benson, supra note 20 at 543.

36. Perry, supra note 13 at 254.

37. Joseph Raz, “Autonomy, Toleration, and the Harm Principle” in Ruth Gavinson, ed, Issues in Contemporary Legal Philosophy: The Influence of H.L.A. Hart (Clarendon Press, 1987) 313 at 327.

38. Perry, supra note 13 at 256-57.It is important to notice that Perry defines harm as interference with personal autonomy, and assumes that there is this exclusive relationship between the two—harm is interference with personal autonomy and interference with personal autonomy is harm. Raz only suggested a reason why personal injury would constitute harm, i.e., that it interferes with personal autonomy, but did not maintain that this is the only kind of harm (i.e., the kind that interferes with personal autonomy) or that there may not be other kinds of interferences with personal autonomy than harm. For the sake of Perry’s argument, we might need to assume that his assumption of mutual exclusivity of harm and interference with personal autonomy is justified.

39. Raz, supra note 37. Perry, supra note 13 at 256.

40. Perry, supra note 13 at 257.

41. Ibid.

42. Ibid at 256-57.

43. Corrective justice, of course, neither reduces to nor is fully explainable in terms of DJ, where the latter is understood as a patterned conception of resource distribution. However, the possibility of a dependency relationship is still open if we view DJ based on a non-patterned conception.

44. Klimchuk, supra note 20 at 58.

45. Ibid.

46. See, e.g., Kagan, Shelly, Normative Ethics (Westview Press, 1997).Google Scholar

47. Hooker, Brad, “Rule Consequentialism” in Zalta, EN, ed, The Stanford Encyclopedia of Philosophy (2015).Google Scholar

48. Perry, supra note 13 at 259.

49. Klimchuk, supra note 20 at 49.

50. Ibid at 61.

51. Ibid.

52. Coleman, Jules L, “Second Thoughts and Other First Impressions” in Bix, Brian, ed, Analyzing Law: New Essays in Legal Theory (Oxford University Press, 1998) 257Google Scholar [Coleman, “Second Thoughts”]; Gauthier, David, Morals by Agreement (Oxford University Press, 1986).Google Scholar

53. Coleman, supra note 52 at 316-17.

54. Ibid.

55. Ibid at 317.

56. Ibid.

57. Ibid.

58. Ibid. David Gauthier characterizes such a perfectly competitive market as a morally free zone. Gauthier, supra note 52 at 84-85.

59. Jody S Kraus & Jules L Coleman, “Morality and the Theory of Rational Choice” (1987) 97:4 Ethics 715 at 721.

60. Coleman, “Second Thoughts”, supra note 52 at 317-18.

61. Ibid at 317-18.

62. Coleman, “Second Thoughts”, supra note 52 at 319. Kraus & Coleman, supra note 59.

63. Coleman, “Second Thoughts”, supra note 52 at 319.

64. Ibid at 319-20.

65. Ibid at 321.

66. Ibid at 320.

67. . Ibid.

68. Ibid.

69. Ibid.

70. Ibid.

71. Perry, supra note 13 at 263.

72. Klimchuk, supra note 20 at 61.