The preceding chapters have illustrated the significance of corrective justice for various legal contexts: for the grounds of liability, for the relationship between right and remedy, for legal education, for the comparative understanding of private law, and for the compatibility of corrective justice with state support for the poor. The aim has been to show, through the concrete treatment of a variety of issues, how corrective justice illuminates the structure and content of private law. The chapters have thereby set out a broad conception of corrective justice.
The ideas presented here stand in contrast to the rather modest role that others have ascribed to corrective justice. For example, Richard Craswell, writing from the perspective of economic analysis, has asserted that “[w]hile corrective justice theory can give us a way of talking about what to do when the relevant baseline is infringed, it cannot tell us what baseline ought to be selected as relevant.”1 The attraction of this view for proponents of economic analysis is that it allows the baseline to be set by considerations of efficiency, while reducing corrective justice to the task of rectifying violations of those baselines.2 However, one does not have to be an economic analyst to regard corrective justice as having solely a remedial function. John Gardner, who has evinced little sympathy for economic analysis, has taken the view that corrective justice involves the allocation of something back to the plaintiff; the consequence of this is that corrective justice deals not with the norms that govern a transaction but only with restoring the situation antecedent to the norm’s violation.3
Common to these views is the limited scope that they postulate for corrective justice. Corrective justice performs a certain operation: correcting the consequences of a transaction that has gone askew. However, the basis on which it performs this operation—what it means for the transaction to go askew—is independent of the operation. In contrast, the argument in this book is that the phenomenon of liability, being correlatively structured, would not coherently correct the injustice between the parties unless the reasons for considering something an injustice were also correlatively structured. The correlativity of the correction presupposes correlativity in the basis for the law’s performing this correction. We can term the notion that corrective justice covers both the correction and the basis of liability the “juridical conception,” because it exhibits the structure that informs the phenomenon of liability in all its aspects, from how the law conceives of injustice as between the parties to how the law corrects that injustice by awarding a remedy. This is in contrast to what might be termed the “remedial conception,” the notion that corrective justice covers only the correction effected through the remedy.
The claim inherent in the juridical conception, that both the operation of the remedy and the normative character of the bases of liability fall under a single conception of justice, is substantive, not terminological. The point of this claim is not to stipulate the proper usage of the words “corrective justice,” but to exhibit the complex of ideas that yields a comprehensive and coherent understanding of the private law relationship. To be sure, the juridical conception and the remedial conception each make terminological assumptions about the words “corrective justice.” While both regard corrective justice as the form of justice that deals with corrections rather than distributions, they differ in their appreciation of the role of correction within that form. The remedial conception takes corrective justice to be about the operation that corrects and nothing else. The juridical conception takes corrective justice to be about the system of norms within which the operation that corrects makes sense. The task of theory is to determine not which of these conceptions involves a superior terminological practice (by consulting a lexicon, for example, or surveying linguistic usage) but which of them sheds greater light on the normative character of private law.
Gardner’s criticism of the juridical conception illustrates the futility of confusing terminology with argument. Drawing on Nozick’s long-ignored terminology, Gardner regards distributive and corrective justice as distinguishing not between different structures of coherent justification but between different subject matters. Norms of distributive justice regulate the allocation of goods among persons, whereas norms of corrective justice regulate the allocation of goods back from one person to another. In his view, norms of either sort of justice are not necessarily just; whether a norm is just depends on soundness of the particular norm, not on its being a norm of justice.4 Adapting a famous dictum, one might say that Gardner holds that the existence of a norm of justice is one thing, its merit or demerit another.
The result of characterizing corrective justice in this way is that corrective justice has nothing to do with the coherence of the reasons for liability. Presumably, coherence would count toward soundness, but that would be a consideration independent of or additional to corrective justice, not a consideration of corrective justice itself. Even an unsound reason for allocating something back to the plaintiff is for Gardner a reason of corrective justice. Furthermore, corrective justice has nothing to do with matching the reason for the norm breached by the defendant with the correlative structure of liability. The norm can be a distributive one that allocated a certain good to the plaintiff, and yet triggered the allocation of that good back to the plaintiff as a matter of corrective justice. Indeed for Gardner, the tort that leads to the allocation of the good back to the plaintiff is generally not an injustice at all—the tortious act is itself generally neither an allocation nor an allocation back—but is the violation of other sorts of moral norms.5
This leads Gardner to make the following criticism of the juridical conception. The juridical conception includes the norms of private law within corrective justice, because the reasons supporting the bases of liability have to be correlatively structured if a correlatively structured finding of liability is to function as a coherent correction of injustice. Gardner objects to this, on the ground that if the norms are part of corrective justice, they must be correcting something else, and so on in infinite regress.6 The norms, in other words, are not corrective because they do not correct anything. Nor does a person correct anything by acting in accordance with them.