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Published online by Cambridge University Press: 23 January 2015
This paper examines judge Richard A. Posner’s “The Concept of Corrective Justice in Recent Theories of Tort Law,” as well as a restatement 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.
1 Richard A. Posner, “The Concept of Corrective Justice in Recent Theories of Tort Law,” The Journal of Legal Studies 10 (1981): 187–88. Judge Posner restates this position, substantially unchanged, in The Problems of Jurisprudence (Cambridge: Harvard University Press, 1990), pp. 313–52.
2 The history of the war between Posner and various other tort theorists, especially Richard A. Epstein, is a long and, contrary to the notation above, rather intriguing one in which the current paper is but a skirmish. It begins with Epstein’s “A Theory of Strict Liability,” The Journal of Legal Studies 2 (1973). We do not take issue with Posner’s critique of Epstein, or of the other tort theorists he discusses, and we refer the interested reader to his analysis.
3 Posner, “Corrective Justice,” p. 187.
4 Posner sometimes seems to want to advance a broader idea of corrective justice; other times he seems to keep the discussion strictly to Aristotle. As the basic rhetorical structure of his argument assumes that he is always talking about Aristotle, that is the position we critique.
5 One need only look at Aristotle’s discussion of liberality to be convinced of this point. See Nicomachean Ethics (hereafter NE), Bk. IV, in Introduction to Aristotle, ed. McKeon (Chicago: University of Chicago Press, 1947). See also NE, Bk. V, chap. 2.
6 Aristotle recognized that the worth of goods, and thus the worth of money, which is that by which we indicate and equate their relative worths, was subject to the vicissitudes of demand, and was moreover a worth which we could alter as we saw fit. NE, Bk. V, chap. 5. He would not have based justice—a concept essential to the health and goodness of the state and thus to each man in it—on a relative ground. Moreover, he speaks of the unjust man as precisely he who concerns himself with material wealth. NE, p. 1129b. However, we do not want to give the impression that Posner is explicitly arguing for the obviously untenable notion that Aristotle was advancing an economic theory of law. That Posner may be implicitly arguing such a position, however, or that he may be compelled by his argument down this unhappy road, is the subject of this paper.
7 Posner, “Corrective Justice,” p. 190.
8 NE, Bk. V, chap. 8.
9 NE, p. 1132a10.
10 As Posner notes, Aristotle is unclear on this point. We are not sure what restored equality is on his account—whether it is a return to the original situation prior to the unjust act, or some median between the resulting states? But, for purposes of this argument, the particulars of the method of reestablishing equality are beside the point. What we are interested in is the method itself—seeking equality through redistribution of wealth—and the relationship between the method and the occasion of wrongdoing.
11 NE, p. 1130a.
12 Recalling, of course, the famous argument advanced by Plato as one of the central theses of his Republic. See Bk. 1. (Plato, Republic, Bk. 1, trans. Paul Shorey, in The Collected Dialogues of Plato, ed. Edith Hamilton and Huntington Czirns [Princeton University Press].)
13 Posner suggests that Aristotle may have allowed for corrective justice for the purposes of deterrence, (“Corrective Justice,” p. 203), but we can see no grounds for this suggestion, either in his discussion or the relevant passages in Aristotle.
14 Posner, “Corrective Justice,” p. 195.
15 Ibid., p. 194.
16 Ibid., p. 200.
17 Ibid., p. 201.
18 Ibid., p. 202.
19 It is worth noting that Posner’s idea of intention—a narrow, modern idea of the deliberate, consciously willed act—is significantly different from the notion that Aristotle has in mind. Although Aristotle’s idea of the will is perhaps the most “modern” of the Ancients, still he conceives of intention as being determined by action. For Aristotle, one cannot both be a good housebuilder and yet build a poor house, unless one has intended the latter. We might say “mistakes happen,” and yet, for Aristotle, such mistakes are at some level intentional mistakes. One easily sees how this broadens Aristotle’s notion of deliberate wrongdoing well beyond the scope of Posner’s usage of the term.
20 To repeat a point, Posner seems to recognize the fact that his account differs significantly from Aristotle’s on the issue of intentionality, but is strangely untroubled by it. “Not only was his [Aristotle’s] substantive concept of wrongful conduct too narrow from an economic standpoint, because limited to deliberate wrongs, but it is not clear whether his idea of corrective justice required that the victim of wrongful conduct be correctly (from an economic standpoint) compensated” (p. 204). Given this, in addition to the points already made, it is very difficult to understand why Posner is so insistent on claiming that Aristotle’s ideas are an important element of his own.
21 Posner, “Corrective Justice,” p. 201.
22 Ibid., p. 206.
23 Ibid., p. 188.
