Is Corrective Justice Subsidiary to Distributive Justice? Which Answer Better Captures The Meaning of Tort Law Practice?

• Author: Norman S Wilson
• Position: BA, BD, Dip Ed, MA (Ed), M Litt. LLB Candidate, Queen's University, Belfast
• Pages: 44-59

Is

CORRECTIVE

JUSTICE

SUBSIDIARY

To

DISTRIBUTIVE

JUSTICE?

WHICH

ANSWER

BETTER

CAPTURES

THE

MEANING

OF

TORT

LAW

PRACTICE?

NORMAN

S

WILSON*

'Justice,

and

only

justice,

you

shall

pursue

...

'Deut

16:

20

Introduction

The

provenance

of

the

concept

of

'justice'

dates

back

to

the ancient

world

of

Greek

philosophy.

As

with

so

many

legal

concepts,

attempts

to

define

this elusive term have

raised

thorny

and

vexed

issues

in

the

history

of

western

legal and

political philosophy.'

Not

only

is

the

definition

of

'justice'

an

essentially contested concept,

it

is

also

a

multifaceted

notion

and

there

are

diverse

ways

of

dividing

up

its

domain.

In

this

respect

the

most

well

known

and

discussed distinction

is

that

of

Aristotle's

succinct

exposition

of

'corrective

justice'

and

'distributive

justice.'

2

For

Aristotle,

distributive

justice

involves

a

so-called

'geometric

proportion'

which requires

a

good

to

be

distributed

on

the

basis

of

a

criterion

of

merit

or desert

among

a

group

of

persons

in

a

political

community.

Distributive

justice

thus

may

be

viewed

as

patterned

distributive

justice,

ie a

person receives

a

share

of

a

good

proportional

to

his/her

desert or

merit.

Broadly speaking,

distributive

justice

is

concerned

with

the

just

distribution

of

material resources,

income,

various

forms

of

wealth and

possibly other

goods

in

society.

Therefore,

a

distributive

justice

claim

is

independent

of

any

individual

action;

rather,

it

is

based

solely

on

a

person's

status

as

a

member

of

a

political community.

Conversely,

corrective or

commutative

justice

involves

rectification

between

two

parties

where

one

person

has

taken

from

the

other

or harmed

the

other.

*BA,

BD,

Dip Ed,

MA (Ed),

M

Litt.

LLB

Candidate,

Queen's

University,

Belfast.

See

Hans

Kelsen,

What is

Justice:

Justice,

Law,

and

Politics

In the

Mirror

of

Science:

Collected Essays

(University

of

California

Press,

1957),

for

a

magisterial

historical

conspectus.

2

Aristotle,

Nicomachean

Ethics

(Macmillan,

1962).

©

2007

Norman

S

Wilson

and

Dublin

University

Law

Society

2007]

Is

Corrective

Justice

Subsidian

to

Distributive

Justice?

45

Briefly

stated, corrective

justice

is

concerned

with

the

moral duty

to

repair

-the

moral duty

to

pay

compensation

whereby

A

can

come

to

owe

B

as

a

result

of

having harmed

him.

As

Richard

Wright

has

stated,

"[t]he

parties

to

the

interaction

are

considered 'arithmetically'

or

absolutely

equal

regardless

of

their

relative standard

in any

comparative

criterion such

as

wealth,

merit or

need.",

3

Aristotle

viewed

'corrective

justice'

and

'distributive

justice'

as

being

quite

distinct.

He

submitted that

the

most

important

function

of

the

state

is

the

power

of

deciding

what

is

for

the

public interest

(distributive

justice)

and

what

is

just

in

men's

dealing

with one

another (corrective

justice).

4

Two

Competing

Conceptions

in

Tort

Law

Theory

In

contemporary

legal

discourse

the crucial

issue

to be

addressed

turns

on

the

nature and

extent

of

the

relationship

between

these

two forms

of

justice.

More

specifically

with

respect

to

tort

law

theory,

is

the

distinction

between

corrective

and

distributive

justice

an

exclusive

disjunctive,

ie

are

the

two

discrete

entities antithetical, or

is

there

a

clear

interrelated

connection

between

them?

A

cursory glance

at

the

voluminous

literature

that

has

accrued

over

the last

thirty

years

in

Anglo-American

legal

academia

reveals

that, broadly speaking,

there

are

two

main categories

of

theoretical

approaches to tort

law

philosophy.

First,

there

is

what

may

be

called monistic theories,

which

include

the

economic

approaches

of

Calabresi

and

Posner

and

the

moral

non-

instrumentalist

theory

of

Ernest

J

Weinrib.

These

theories

have one

pervasive

value which

could

be

economic efficiency,

wealth

maximisation

or

corrective

justice

on

Kantian

grounds. Secondly, there

is

the

pluralist

approach

to

tort

law

theory

whereby

its

advocates

deny

the

possibility

of

reducing

tortuous liability

to

one

overriding

explanatory

goal.

This

approach tends to

be

more

pragmatic

in

outlook

where some

scholars

combine

corrective

justice

with

distributive

justice,

moral

responsibility

with

social

utility,

and

liberty

with efficiency.

As

a

result

there

are

various

shades

of

opinion

in

this

pluralism.

Some

of

the

leading

advocates in

this

category

are

Jules Coleman,

Stephen

Perry,

Arthur

Ripstein

and

Ben

Zipursky.

3

Richard

W

Wright,

"Right,

Justice

and

Tort

Law"

in

Owen

ed,

Philosophical

Foundations

of

Tort Law

(Oxford, Clarendon Press,

1995), at

167.

4

Aristotle,

"Politics

111.6",

in

Barnes

ed,

The

Complete

Works

of

Aristotle

(Princeton

University Press,

1984), at

1279a17-21.