It is sometimes argued that tort law is, or ought to be understood as, a system of personal responsibility and corrective justice. Moreover, it is often assumed that these notions are identical, or at least compatible. In fact, however, personal responsibility and corrective justice are very different concepts and they produce very different pictures of the law. The article demonstrates this by comparing the way in which personal responsibility and corrective justice deal with three (...) important problems: the presence of non-subjective standards in the law, the place of liability insurance, and the relationship between law and politics. (shrink)

In this paper I reconsider the relation between property and unjust enrichment and respond to a recent argument that actions in unjust enrichment cannot be actions in corrective justice. I suggest that any analysis that regards actions in unjust enrichment as embodying principles of corrective justice requires supplementation by considerations that are, at bottom, proprietary in nature. I argue that there is no incompatibility in viewing actions in unjust enrichment as actions whose grounds are broadly proprietary (...) in nature; that understanding unjust enrichment in this manner does not threaten its theoretical coherence; and that understanding unjust enrichment in this manner allows us to view actions in unjust enrichment as actions in corrective justice. (shrink)

Over the last two decades, legal scholarship has been catching up with the more than century old calls by black Americans for reparations.1 Tax scholar Boris Bittker (in)famously launched the viability of black reparations into legal scholarship with his now classic monograph, The Case for Black Reparations.2 However, it would take more than twenty years for mainstream legal scholarship to take up the robust and wide-ranging set of questions raised by the possibility of reparations for American slavery.3 In the late (...) 1990s private law scholars leapt into the debate, discussing unjust enrichment and torts-based models of black reparations.4 While these scholars made a variety of distinct arguments, collectively, their model rested on the contention that America had wrongfully expropriated the labor of generations of enslaved African Americans and the result had been systemic unjust enrichment, or a species of mass torts. Grounded in various conceptions of corrective justice, these models conceive black reparations as a set of claims that would be litigated through the courts. Over the ensuing two decades, the private law model has become somewhat of an outlier in reparations discussions, largely set aside in favor of broader, more explicitly political approaches. (shrink)

Freedom of contract and corrective justice are considered to be the basic principles governing contract law. However, many contemporary legal orders implement various policy goals into private law. The regulatory private law of the European Union is the most striking example of such a trend. This article aims at reconciling the corrective justice theory of private law and the principle of freedom of contract with the regulatory dimension of the EU law. The main argument is that (...) the meaning of the concept of harm, one that is crucial to the principle of corrective justice, should be understood broadly so that it can transform the corrective justice theory from a monistic one into a pluralistic one. (shrink)

In this paper, I ask how – and whether – the rectification of injury at which corrective justice aims is possible, and by whom it must be performed. I split the injury up into components of harm and wrong, and consider their rectification separately. First, I show that pecuniary compensation for the harm is practically plausible, because money acts as a mediator between the damaged interest and other interests. I then argue that this is also a morally plausible (...) approach, because it does not claim too much for compensation: neither can all harms be compensated, nor can it be said when compensation is paid that the status quo ante has been restored. I argue that there is no conceptual reason for any particular agent paying this compensation. I then turn to the wrong, and reject three proposed methods of rectification. The first aims to rectify the wrong by rectifying the harm; the second deploys punitive damages; the third, punishment. After undermining each proposal, I argue that the wrong can only be rectified by a full apology, which I disaggregate into the admission of causal and moral responsibility, repudiation of the act, reform, and, in some cases, disgorgement and reparations, which I define as a good faith effort to share the burden of the victim’s harm. I argue, further, that only the injurer herself can make a full apology, and it is not something that can be coerced by other members of society. As such, whether rectification of the wrong can be a matter of corrective justice is left an open question. (shrink)

Suppose the prevailing distribution of property rights is unjust as determined by the relevant conception of distributive justice. You have far more than you should have under that theory and I have far less. Then I defraud you and in doing so reallocate resources so that our holdings ex post more closely approximate what distributive justice requires. Do I have a duty to return the property to you? There are many good reasons for requiring me to return to (...) you what I have taken. One is that while you may have no right in justice to all that you own, it does not follow that I do, or that I have a right to take it. Thus, requiring me to return the property to you is a way of recognizing that I had no right to take it from you in the first place. (shrink)

A corrective justice account of a private law remedy attempts to the explain the remedy as giving back to the plaintiff something to which the plaintiff had a prior right that was breached by the defendant's receipt of that thing. It has proven challenging to explain how disgorgement for breach of contract is consistent with corrective justice. This remedy gives to the plaintiff any profit that a defendant received from a third party by breaching a contract (...) with the plaintiff. In this paper, I critique two leading attempts to show how disgorgement for breach of contract is consistent with corrective justice. I argue that these attempts fail, and I suggest that a plausible corrective justice account of disgorgement should be based on something other than the nature of the contractual rights borne by a plaintiff. I then develop an alternative account based on an analogy between disgorgement for breach of contract and disgorgement for breach of fiduciary duty. To do so, I draw on recent scholarship on the consistency of disgorgement for breach of fiduciary with corrective justice and analyze the leading judicial decision on disgorgement for breach of contract by the UK House of Lords inAttorney General v. Blake. I argue that the fiduciary-based account can provide a plausible explanation for how disgorgement effectuates corrective justice by giving back to a plaintiff something to which he had an antecedent right that the defendant violated by profiting from a breach of contract. (shrink)

Private law governs our most pervasive relationships with other people: the wrongs we do to one another, the property we own and exclude from others' use, the contracts we make and break, and the benefits realized at another's expense that we cannot justly retain. The major rules of private law are well known, but how they are organized, explained, and justified is a matter of fierce debate by lawyers, economists, and philosophers.

This paper argues against the view favored by many contemporary scholars that corrective justice in the Nicomachean Ethics is essentially compensatory and in favor of a bifunctional account according to which corrective justice aims at equalizing inequalities of both goods and evils resulting from various interactions between persons. Not only does the account defended in this paper better explain the broad array of examples Aristotle provides than does the standard interpretation, it also better fits Aristotle’s general (...) definition of what is just. In the last section, the paper argues, again against the standard interpretation, that proportional reciprocity, the kind of justice discussed in Nicomachean Ethics V.5, has two forms and is closely linked to corrective justice. Although corrective justice and proportional reciprocity are conceptually distinct and do different work in Aristotle’s political philosophy, instances of proportional reciprocity are instantiated by instances of corrective justice. This linkage, the paper concludes, helps to explain why Aristotle would assign corrective justice such a prominent place in his theory of justice. (shrink)

This article argues that corrective justice is an adequate principle of criminalization. On my interpretation, corrective justice holds that, in order for an action to count as a crime, there needs to be a plausible normative story about an offender having violated the interests of a victim in a way that disturbs their relationship as equal persons and a subsequent story about responding to crime in a way that corrects this disturbance. More specifically, I claim that (...) corrective justice is concerned with the protection of interests that persons have in owning private goods throughout standard interactions with other persons. The argument proceeds in three steps. First, I specify the subject-matter that principles of criminal law need to ground and provide an outline of the idea of corrective justice. Second, I show that corrective justice can account for the main cases of crime and the salient modes of criminal responsibility. I also argue that corrective justice can make sense of two prima facie recalcitrant types of cases. Third, and finally, I address two objections to my corrective justice theory of criminal law. The first concerns the implications corrective justice has for locating criminal law along the private/public law divide. The second objection raises the putatively problematic consequences corrective justice has for understanding the separation between criminal and civil law. (shrink)

The debate concerning solidarity and justice among states has missed the key contribution made to international affairs by corrective justice. Unlike distributive justice, which applies within states, corrective justice applies among states. It applies in particular to cooperative arrangements creating interdependence among them. Corrective justice does not require fairness in outcomes. It requires redress in cases of loss caused by unfairness. An illustration of corrective justice among states is the Eurozone’s (...) response to the financial crisis. The assistance offered to the most burdened states was not as an attempt to arrive at fair shares but an attempt to remedy the losses unfairly caused by the mistakes made by the Eurozone as a whole, when designing its basic architecture. (shrink)

This article argues that John Gardner’s theory of corrective justice in _From Personal Life to Private Law_ relies on an overly narrow account of wrongdoing, one that it too heavily influenced by law to capture the broader conception of corrective justice that is his topic. I will suggest that these problems are avoided by a reconciliation theory of corrective justice.

A review of Ernest Weinrib's _Corrective Justice_.

In this paper, I assess critically the recent debate on corrective duties across moral and legal philosophy. Two prominent positions have emerged: the Kantian rights-based view (holding that what triggers corrections is a failure to respect others' right to freedom) and the so-called continuity view (correcting means attempting to do what one was supposed to do before). Neither position, I try to show, offers a satisfactory explanation of the ground (why correct?) and content (how to correct?) of corrective (...) duties. In the final section, I suggest that it is probably better to restrict the label “corrective duties” to duties generated by interpersonal wronging. (shrink)

Courts of criminal jurisdiction commonly allow for mitigating circumstances when determining the punishment of convicted wrongdoers. This paper looks at some of the moral issues raised by mitigation, and asks in particular whether the damage that arraignment or conviction does to the good name of a previously well-reputed person may ever reasonably be considered as a circumstance justifying the imposition of a penalty lighter than is standard for the offence. It is argued that making an allowance for the loss of (...) good name is sometimes required by justice and that a number of principled and practical objections that have been raised against the practice are unconvincing. Key Words: celebrity • justice • law • mitigation • punishment • reputation. (shrink)

A few years ago, Peter Benson argued that unless claims in corrective justice are grounded on an independent, non‐distributive measure of entitlement, corrective justice collapses into distributive justice. More recently, Stephen Perry argued that the autonomy of corrective justice can be secured with something more modest, namely a free‐standing conception of harm. I argue, first, that Perry's account is closer to Benson's than we might at first think, and, second, that implicit in each (...) is a view that we ought to reject, namely that corrective justice can be autonomous only if there are rights or entitlements which the law does not confer but must, on pain of injustice, protect. In conclusion I defend the view that corrective justice takes as found the positive law's measure of those interests that merit protection in individuals' interactions with others, and explain what, on this account, is meant by holding that corrective justice is autonomous. (shrink)

I reply to Mills's critique of my effort to show the relevance of Rawls's theory of justice for thinking about and responding to racial injustices. Contrary to Mills's claims, my suggestion that the fair equality of opportunity principle can remedy socioeconomic disadvantages caused by the legacy of racial oppression is compatible with Rawls's framework, does not conflate distributive justice with corrective justice, and does not confuse racial injustice with economic injustice. I also raise doubts about Mills's (...) project to radically reconstruct contractarian political philosophy. He seeks to displace ideal theory with nonideal theory by foregrounding the realities of past racial domination. Against this approach, I argue that an ideal theory that abstracts away from these realities is not inherently ideological, useless for corrective justice, or too ideal to guide social reform. And I defend the view that ideal theory is indispensible for nonideal theorizing about racial justice. (shrink)

This paper is about the remedy of disgorgement for breach of contract. In it I argue for two conclusions. I first argue that, prima facie at least, disgorgement damages for breach of contract present something of a puzzle. But second, I argue that if we pay close attention to the notion of contractual performance, this puzzle can be resolved in a way that is consistent with principles of corrective justice. In particular, I suggest that even if a contract (...) gives the promisee a right to only the promisor's performance of the contract, such a right can sometimes entail the acquisition by the promisee of certain rights of ownership. And in situations in which such rights are acquired, the disappointed promisee is entitled to the gains realized by the promisor in breach of contract by reason of the fact that such gains are something to which the promisee has an antecedent right. (shrink)

Higher education provides crucial public and private goods. Especially in the United States, however, higher education reflects and sometimes compounds enduring inequities and inefficiencies. Higher education, critics argue, inefficiently provides a credential that is often crucial for career advancement but whose value is mainly to signal skills one already had. This paper explores the moral significance of an oversupply of higher education, especially for persons disadvantaged because of uncorrected historic injustice. I review the moral costs of credentials inflation. Focusing on (...) those who already have independent claims to reparation for historic injustice, I set out whether and how some such persons might have additional claims to repair for the increased credential demands for work. I close by considering what sorts of repair corrective justice might prescribe. (shrink)

For corrective justice, liability is the consequence of the parties' being correlatively situated as the doer and sufferer of an injustice, and the remedy is seen as undoing that injustice to the extent possible. Combining consideration of legal doctrine and private law theory, this article applies the framework of corrective justice to gain-based damages for torts. Within this framework, restitutionary damages ought to be available only insofar as they correspond to a constituent element in the injustice (...) that the defendant has done to the plaintiff. The radical proposal that allows restitutionary damages for any wrongful gain is unsatisfactory because it fails to link the damages that the plaintiff receives to the normative quality of the defendant's wrong. In contrast, dealings in another's property give rise to such damages because the idea of property includes within the owner's entitlement the potential gainsfrom the property's use or alienation. Restitutionary damages should not be seen as serving a deterrent or punitive function; such a function cannot account for why the plaintiff, of all people, is entitled to the defendant's gain. Properly understood, even situations where the plaintiff's wilfulness or calculation increases the damage award fit within the framework of corrective justice. The corrective justice approach thus repudiates the notion that restitutionary damages are occasions for the promotion of social purposes extrinsic to the juridical relationship between the parties. (shrink)

This piece discusses the account of contested territories and of corrective justice Moore offers in A Political Theory of Territory. In Chapter 6, Moore offers an occupancy account of boundary-drawing. My discussion focuses on the status of Moore's occupancy account compared to the statist and nationalist accounts it aims to replace. Specifically, I consider whether these other accounts are as unsuccessful as Moore suggests, and whether Moore's account is as distinct from these accounts as she suggests. In Chapter (...) 7, Moore offers a distinction between three different types of rights violations involved in the unjust taking of territory, and considers potential remedies for each. My discussion focuses on the arguments Moore offers to justify the presence or absence of certain remedies, in particular the right of return and the redistribution of land. I conclude that the territorial claims of historically wronged groups are too quickly dismissed, and I suggest that this is problematic from the point of view of Moore's own account. (shrink)

The task of corrective justice in Aristotle’s ethics is the rectification of harms or injuries resulting from voluntary or involuntary interactions between persons. However, the scope of this form of justice is not clear. In its widest conception it would include all harms done to a person against her will and without her fault. According to a narrower conception, instead, it is only an injury caused by an unjust or wrongful action that requires compensation. But in fact (...) Aristotle distinguishes several concepts of unjust action. As a result, the narrower conception appears in various versions which are discussed in this paper. (shrink)

This article offers arefutation of the corrective justiceinterpretation of tort law – the view that itis essentially a system of corrective justice. It introduces a distinction between primary andsecondary tort duties and claims that tort lawis best understood as the union of its primaryand secondary duties. It then advances twoindependent criticisms of the correctivejustice interpretation. The article firstargues that primary tort duties have nothingfundamentally to do with corrective justice andthat, if one understands what is meant (...) by``primary tort duties,'' one is compelledto regard this fact as a decisive objection tothe corrective justice interpretation. Second,it argues that, whatever relation thereis between secondary tort duties and correctivejustice, that relation also holds betweencorrective justice and secondary duties ofother legal branches. In sum, the concept ofcorrective justice is neither capable ofunifying tort law nor of demarcating it fromother legal branches.The article also offers a general alternativeinterpretation of tort law. Rather thanbeing essentially corrective, tort law isessentially protective. Under this picture, iftort law has a most important point, it is theprotection of legal subjects and valuablesocial interests from harm. This is theoverarching ambition that unifies primary andsecondary tort duties. It does not, however,demarcate tort law from other legal branches. (shrink)

This article offers a refutation of the corrective justice interpretation of tort law – the view that it is essentially a system of corrective justice. It introduces a distinction between primary and secondary tort duties and claims that tort law is best understood as the union of its primary and secondary duties. It then advances two independent criticisms of the corrective justice interpretation. The article first argues that primary tort duties have nothing fundamentally to (...) do with corrective justice and that, if one understands what is meant by ``primary tort duties,'' one is compelled to regard this fact as a decisive objection to the corrective justice interpretation. Second, it argues that, whatever relation there is between secondary tort duties and corrective justice, that relation also holds between corrective justice and secondary duties of other legal branches. In sum, the concept of corrective justice is neither capable of unifying tort law nor of demarcating it from other legal branches.The article also offers a general alternative interpretation of tort law. Rather than being essentially corrective, tort law is essentially protective. Under this picture, if tort law has a most important point, it is the protection of legal subjects and valuable social interests from harm. This is the overarching ambition that unifies primary and secondary tort duties. It does not, however, demarcate tort law from other legal branches. (shrink)

This paper examines judge Richard A. Posner’s “The Concept of Corrective Justice in Recent Theories of Tort Law,” as well as arestatement of that position in The Problems of Jurisprudence, and argues that Judge Posner has mistakenly claimed Aristotle’s notion of corrective justice as a significant component of the economic theory of law.

In this paper I discuss the proposal that the law of torts exists to do justice, more specifically corrective justice, between the parties to a tort case. My aims include clarifying the proposal and defending it against some objections (as well as saving it from some defences that it could do without). Gradually the paper turns to a discussion of the rationale for doing corrective justice. I defend what I call the ‘continuity thesis’ according to (...) which at least part of the rationale for doing corrective justice is to mitigate one’s wrongs, including one’s torts. I try to show how much of the law of torts this thesis helps to explain, but also what it leaves unexplained. In the process I show (what I will discuss in a later companion paper) that ‘corrective justice’ cannot be a complete answer to the question of what tort law is for. (shrink)

The fair use doctrine is at once the most significant and the most problematic qualification of the copyright owner's right to exclusivity. An affirmative defense against copyright liability, the fair use doctrine legitimates certain unauthorized reproductions of copyrighted materials that would otherwise be regarded as copyright infringements. Notwithstanding its importance, “fair use” continues to be “the most troublesome [doctrine] in the whole law of copyright.” Throughout its long history, neither courts nor legislatures have provided a useful definition of “fair use” (...) nor have they adumbrated its objectjves. Since the doctrine's inception over two and a half centuries ago, courts and legislatures have attempted to formulate, explicate, refine, and revamp the fair use doctrine. Generally, these efforts have proven unfruitful. At best, they have resulted in various formulations of how to approach fair use questions that offer courts and users of copyrighted works scant guidance on how fair use should be recognized. All this would not have been of grave concern had judges shared a common understanding of fair use or of the principles that should guide them in deciding fair use cases. The problem is that they do not. Rather, the case law reflects wdely divergent notions of the concept of fair use. The lack of consensus is best witnessed in the multiple reversals and divided courts that have become the hallmark of fair use litigation. (shrink)

This book argues that justice often governs apologies. Drawing on examples from literature, politics, and current events, Cohen presents a theory of apology as corrective offers. Many leading accounts of apology say much about what apologies do and why they are important. They stop short of exploring whether and how justice governs apologies. Cohen argues that corrective justice may require apologies as offers of reparation. Individuals, corporations, and states may then have rights or duties regarding (...) apology. Exercising rights to apology or fulfilling duties to provide them are ways of holding one another mutually accountable. By casting rights and duties of apology as justifiable to free and equal persons, the book advances conversations about how liberalism may respond to historic injustice. Apologies and Moral Repair will be of interest to scholars and advanced students in ethics, political philosophy, and social philosophy. (shrink)

In my dissertation, I argue that the enterprise of corrective justice requires answering questions about what is unjust and how we ought to set and pursue corrective justice goals. To answer these questions in a way that will allow us to correct for the persistent and entrenched injustices which result from processes of stratification in our society, I’ll put forward a two-tiered social contract theory, which will allow us to approach these questions in a way that (...) will capture the agreement we can have and allow us to structure the persistent disagreement that we cannot and ought not avoid. In the first tier—the cooperative position—the parties know only that they’re in what I’m calling the ten circumstances of cooperation—the circumstances in which modern cooperation takes place. These circumstances includes the social complexity and opacity inherent in complex cooperative arrangements which have epistemic effects on our social cognition in ways that make our view of our social arrangements at best partial, and work to obscure important features of our social reality, especially those affecting those at the bottom of our stratified social relations. This tier generates four cooperative ideals—proficient rationality, democratic equality, social understanding, and dignity—that function as a theory of justice which can gain an overlapping consensus in society but still allow for meaningful disagreement to take place. In the second tier—the corrective position—the parties have access to the circumstances of cooperation, four cooperative ideals, and a general and specific domination contract. These domination contracts model how stratified social relations operate to constrain people within social systems, including the ways that people think about those systems. I argue that the parties would affirm a principle of corrective justice as involving coalitions of differently-situated actors working together over time to dismantle unjust mechanisms, and five desiderata for applying that principle to circumstances as we confront them. They would do so because that is the only way to overcome the practical and epistemic barriers put in place by the domination contracts. (shrink)

The settlements surrounding the Exxon Valdez oil spill prove to be an interesting case of retributive and corrective justice in regard to damage to the ecology of the commons, particularly in light of the recent Deepwater Horizon spill in the Gulf of Mexico. After reviewing the harm done to the ecology of Prince William Sound by the spill, and an account of Exxon Corporation’s responsibility, I examine the details of the litigation, particularly the Supreme Court decision in this (...) matter. In the early settlement, there is a clear disproportion between damage awards to plaintiffs representing the current economic users of Prince William Sound versus the trustees for the Sound’s commons. I argue that the disproportion reveals not only a thoroughly economic understanding of ecological commons, but bias in the treatment of its current economic users, as opposed to an understanding of such ecologies as true commons shared over generations. I argue that such biases fail reasonable moral tests and do not stand up to common principles of retributive justice. I end by suggesting a legal maneuver to correct such tendencies. (shrink)

The aftermath of war is always messy and complicated. When should objects or resources that were unjustly taken in wartime be returned to the victims of misappropriation, or their heirs? This article advances two arguments that are intended to buttress claims for the restitution of property in general, and particularly claims advanced by the heirs of the original victims of misappropriation.

Contemporary Kantians suggest that the original acquisition of property is problematic for Kant’s theory of private law. Kant requires that private law obligations be consistent with the equal freedom of everyone. However, a rule of original acquisition seems to favor the acquirer’s freedom over others’: the acquirer originally obtains property in an unowned object simply by taking control of it, and thus seems to impose obligations on everyone else through her own “unilateral” action or choice. This article first addresses proposed (...) Kantian solutions to the supposed “unilateralism” problem, which involve the creation of a “civil condition” of public legal institutions to determine property rights. Such solutions make property rights a matter of distributive justice rather than corrective justice. Moreover, they cannot actually solve the unilateralism problem. But in any event, the supposed “unilateralism” problem is in fact no problem at all for Kant. This is because one person’s original acquisition does not limit others’ “freedom” in the Kantian sense of that term. In this respect Kant’s account of property is equivalent to Hegel’s, which contemporary Kantians have criticized for denying any problem of unilateralism. And both Kant and Hegel’s accounts are fully consistent with a theory that explains property as a matter of corrective, rather than distributive, justice. (shrink)

This article examines the nature of the wrongs that are inflicted on individuals and groups who have been expelled from the land that they previously occupied, and asks what they might consequently be owed as a matter of corrective justice. I argue that there are three sorts of potential wrongs involved in such expulsions: being deprived of the moral right of occupancy; being denied collective self-determination; and having one's property rights violated. Although analytically distinct, all of these wrongs (...) are likely to be perpetrated when people are expelled from their homelands. Although there is substantial literature on corrective justice dealing with such cases, most of that literature focuses on the expropriation of property only, and is therefore unlikely to grasp the full implications of the wrong done or to reveal the full extent of what might be owed to people as a matter of corrective justice. (shrink)

This article explores the justification for the defendant’s restitutionary obligation to the plaintiff consequent on an unjust enrichment. It focuses on the dominant corrective justice explanation, according to which the duty of restitution instantiates this virtue. It identifies two types of corrective justice explanation: a thin and thick version, attributed to John Gardner and Ernest Weinrib, respectively. According to the thin version, corrective justice is confined to the remedial relation between the plaintiff and the (...) defendant; it is solely concerned with the norm of justice that provides reasons to transfer back. The thick account in contrast does not restrict corrective justice to this remedial stage. Rather, it understands it as encompassing the relationship between the parties from the outset. Both accounts fail to provide a satisfactory explanation for the duty of restitution for unjust enrichment. Their failures, however, are instructive, illuminating a possible route to a more nuanced understanding of private law’s remedial obligations and their justifications. (shrink)

Over the last few decades, corrective justice has established itself as central to serious academic discussion of the normative dimension of tort liability. This article describes the consensus about corrective justice that is presently emerging, as is evident from work of the author and from recent work of other tort theorists. The framework for discussing this emerging consensus is what the article calls "the juridical conception of corrective justice." The juridical conception seeks to explicate (...) the most general ideas implicit in liability as a normative practice in which the plaintiff makes a claim against the defendant. Under the juridical conception, corrective justice is the synthesis of two complementary abstractions: correlativity and personality. Correlativity articulates at the most general level the relationship between the interacting parties as doer and sufferer of the same injustice. Personality, i.e., the idea of purposiveness regardless of one's particular purposes, similarly articulates at the most general level the conception of the interacting parties that is presupposed in a regime of rights and their correlative duties. The leitmotif of the emerging consensus is the idea of correlativity, which is now effectively accepted by all of the theorists mentioned, even by those who initially rejected it. Personality, on the other hand, has gained less support, because of the apprehension that it implies that rational agency, as elaborated by Kant or Hegel, is a philosophical truth from which tort theory can be derived. This reason for dismissing personality is insufficient. Corrective justice comes into view not by being derived from a notion of rational agency but by reflection on the most general ideas implicit in liability as a normative practice. Personality is merely the abstraction that represents the parties as the bearers of rights and their correlative duties. Like correlativity, it owes its status within corrective justice to its being implicit in the law's doctrines and institutions. Consequently, whether the Kantian or Hegelian notion of rational agency is plausible is a philosophical question that lies beyond tort theory and that does not affect the place of personality within a corrective justice approach to liability. Moreover, if correlativity and personality are indeed complementary, acceptance of the former should lead to acceptance of the latter. Such acceptance would provide the theorists who now reject it with a concept that would be serviceable for their own formulations. In any case, the consensus about the highly structured notion of correlativity indicates that the main lines of the corrective justice approach to tort law are now firmly established. Although refinements inevitably remain to be made, radical revisions are unlikely to result from further reworking the standard material of corrective justice tort theory. Scholarly attention should instead turn to the examination of the place of corrective justice within the legal order as a whole and to the expansion of the corrective justice analysis from tort law to other bases of liability. (shrink)

This paper considers the relation of corrective to distributive justice. I discuss the shortfalls of one sort of account that holds these are independent domains of justice. To support a more modest claim that these are sometimes independent domains of justice, I focus instead on the case of apologies. Apologies are sometimes among the measures specified by corrective justice. I argue that the sorts of injustices that apologies can help to correct need not always (...) be departures from ideals specified by distributive justice. Apologies and the moral relations they engage might thus be parts of a domain of justice that is neither distributive nor dependent on distributive justice. (shrink)

Introduction -- The starting point : Aristotle's classification of justice -- High scholastics -- Late scholastics -- A special theological problem : divine justice -- Jewish commentators -- Post scholastic writers -- The modern use of Aristotle's forms of justice.