The point of liability is to undo the injustice that the plaintiff suffers at the defendant’s hand. Over the last several decades the importance of this simple and obvious idea—what Aristotle termed “corrective justice”—has been increasingly recognized. This chapter articulates its structure and content.
Among English-speaking scholars, the recent history of corrective justice has been one of eclipse and rediscovery. Formulated by Aristotle in antiquity, nurtured by the scholastic tradition in the Middle Ages, and then reworked by modern philosophers of natural right, corrective justice had long been a staple of legal theory. However, by the second half of the twentieth century, instrumental conceptions of law had largely supplanted it. Having been displaced by policy analysis and its concomitant intellectual disciplines, the characteristic concepts and underlying assumptions of corrective justice were no longer part of the common intellectual inheritance of academic lawyers. In the late twentieth century interest in corrective justice revived, primarily through the emergence of tort theory out of the clash between economic analysis and its opponents.1 Because corrective justice focuses on the normative relationship between the parties, it readily appealed to theorists who viewed tort law as a repository of moral reasoning about responsibility for injury rather than as a device for promoting economic goals.
The organizing idea of corrective justice is that of correlativity. Under this idea, liability reflects the conclusion that the defendant and the plaintiff have respectively done and suffered the same injustice. Correlativity structures this injustice: the elements of liability can be explicated only in terms of concepts whose normative force applies simultaneously to both parties. Liability thus involves a conception of fairness that recognizes the equal normative status of the two parties and treats their normative positions as mirror images of each other.
Corrective justice is exposed to two potential misconceptions. The first misconception is that corrective justice is a substantive rather than a structural principle. A substantive principle directly presents a proposed content for legal doctrine. This content may have a limited scope that comprehends certain bases of liability but not others. Viewed as a substantive principle, corrective justice might be thought, for instance, to illuminate only particular doctrines of tort law but neither tort liability generally nor other bases of liability such as contract law or unjust enrichment. In contrast, a structural principle refers to a pattern of argument to which the content (whatever it is) of private law should conform. Viewed as structural principle, corrective justice applies throughout the whole law of obligations, on the grounds that correlativity is built into the very structure of liability as a normative phenomenon directly linking plaintiff and defendant. The second misconception is that corrective justice is so abstract an idea that it contributes little to the specification of the content of private law, or that it is concerned only with the remedial mechanism through which wrongs, whatever they are, are corrected. This ignores the close connection between corrective justice and a robust conception of rights. These rights and the duties correlative to them constitute the content of private law across the various bases of liability.
In this chapter I address both of these potential misconceptions. In response to the first, I examine the normative significance of correlativity as a pervasive feature of liability. In response to the second, I trace the conceptual relationship between the correlativity of corrective justice and liability as a regime of rights. In particular, I focus on the idea of personality as the abstraction through which the nature of these rights is understood.
I thereby present a juridical conception of corrective justice. The conception is juridical in the sense that it reflects, though at an abstract level, the justifications internal to liability in private law, treating them as normative in their own terms rather than as the disguised surrogates for extrinsically justifiable social goals. The juridical conception views the determination of liability as a distinctive domain of practical reason that subjects the interaction between the plaintiff and the defendant to a coherent ordering that is fair to both of them. Because legal argument attests to the law’s self-reflective engagement with its own fairness and coherence, the principles and concepts already present to private law can provisionally be regarded as constituents of that ordering. Thus, in its endeavor to exhibit the normative ideas interior to a fair and coherent regime of liability, the juridical conception of corrective justice draws on the law’s own efforts.
Fundamental though it is, correlativity is not the only component of the juridical conception of corrective justice. That conception also features a distinct notion of the person that philosophers in the natural right tradition have termed “personality.” Personality in this context is not a psychological but a normative idea: it refers not to the pattern of an individual’s behavioral characteristics, but to a presupposition about imputability and entitlement that is implicit in the rights and duties of private law. This presupposition is that, as participants in a regime of liability, the parties are viewed as purposive beings who are not under duties to act for any purposes in particular, no matter how meritorious. This capacity for purposive action underlies the rights and duties that are its juridical manifestations. In not requiring action for any particular purpose, personality reflects the structure of the law of obligations as a system of negative duties of non-interference with the rights of others. This does not mean that so circumscribed a notion of duty is exhaustive of one’s obligations in all moral contexts. Rather, personality encapsulates a normative standpoint that is indigenous to private law.
In the juridical conception of corrective justice, correlativity and personality are complementary ideas. They are the mutually entailed parts of a single conception but they highlight different aspects of it. Just as correlativity is the most abstract representation of the terms on which the parties interact in private law, so personality is the most abstract representation of the parties themselves as interacting beings. And just as correlativity exhibits the structure of the justifications that pertain to private law, so personality articulates the presupposition that informs the content of those justifications. Correlativity and personality pass over the same theoretical ground from different directions.
Accordingly, one would have expected that the increasing academic recognition of correlativity would be accompanied by a similar recognition of personality. That, however, has not occurred. This is because of the apprehension that personality, with its roots in the natural rights philosophies of Kant and Hegel, implies both a philosophical claim about the truth of Kant’s or Hegel’s conception of rational agency2 and a methodological claim that the theory of private law is derived from a more comprehensive philosophical program. They reject personality because they reject what they take to be these further implications.
In this chapter I point out that these further implications do not follow from the presence of personality within the juridical conception of corrective justice. Personality articulates at the high level of abstraction what is implicit in private law as a regime of rights and their correlative negative duties. Personality’s status within the juridical conception is no different from that of correlativity. With respect to both personality and correlativity, the juridical conception operates by working back from the principles and concepts of private law to the most general ideas latent within them. Thus the juridical conception regards corrective justice neither as deriving from nor as implying the philosophical truth of Kant’s or Hegel’s conception of rational agency. Of course, this does not exclude reference to Kantian and Hegelian texts and ideas as a source of insight about the nature of private law when understood as corrective justice. Nor does it exclude the possibilities of deriving corrective justice from, or establishing the truth of, rational agency; consideration of those possibilities, however, would require philosophical argument that lies beyond the bounds of the theory of private law and does not affect it. What the juridical conception of corrective justice asserts is merely that correlativity and personality are implicit in private law as complementary ideas, so that accepting one of them is inconsistent with rejecting the other.
2. The complementary abstractions
The juridical conception of corrective justice is the centerpiece of a theory of liability. The object of the theory is to understand liability as a distinct and familiar normative practice, in which the law assesses and responds to the claim that a plaintiff makes against a defendant. Considered as a normative practice, liability includes both the legal consequences that a court might impose and the grounds that justify those legal consequences.
Within this practice justification has a pervasive role. The rules, concepts, and principles that figure in the assessment of the plaintiff’s claim are the ingredients and the products of a justificatory process. Moreover, the institutions of liability are designed for the presentation of these justifications and for giving effect to the conclusions that may be drawn from them. Consequently, the normative significance of a finding of liability depends on the cogency of the justifications that support it.
The juridical conception of corrective justice takes the justificatory ambitions of this practice seriously by focusing on its internal normative dimension. The juridical conception repudiates the idea that the justifications that figure in private law derive from goals that are desirable independently of the role that they can coherently play in a liability regime. Instead, its eye remains fixed on the practice itself, on the institutional structure through which it unfolds, and on the reasoning through which it expresses its distinctive mode of justification. The juridical conception of corrective justice thus honors the law’s reasoning as a good faith attempt—sometimes successful and sometimes not—to make the exercise of official power the product of an internally coherent ensemble of justificatory considerations.
The aim of the juridical conception is to disclose the structure and the normative presuppositions of the law’s internal processes of justification. It takes the doctrinal and institutional features that are characteristic of a regime of liability, and asks what must be presupposed about them and about their interconnection if the law is to be (as it claims) a coherent justificatory enterprise. The answer lies in identifying the most abstract unifying conceptions implicit in the doctrinal and institutional arrangements of private law. Thus the juridical conception of corrective justice purports to bring to the surface ideas that are latent in liability as a normative practice.
Within the juridical conception the movement of thought is from the particulars of liability to its most abstract characterization, thus carrying to its extreme the tendency to abstract that marks legal thinking. Although the events that give rise to a legal relationship are particular, the law treats these events in terms of categories. The particularities of the events are legally relevant only inasmuch as they instantiate a category applicable to the legal relationship to which they give rise. Just as legal thinking views particulars in the light of these categories, so the juridical conception of corrective justice abstracts further from these categories to the barest and most general ideas underlying the law’s construction of the parties’ relationship.
The juridical conception of corrective justice gives voice to the internal structure of a liability regime by presenting its doctrinal and institutional features as the specifications of its most pervasive and general characteristics. If these characteristics can be understood as expressing a set of unifying and complementary ideas, the liability regime will be seen as coherent to the extent of its participation in those ideas. When presented abstractly, these ideas afford an uncluttered view of the nature of liability, because they pertain to liability as such without being confined to any particular doctrine. Their very abstractness brings into view the systematic connections that might obtain among the considerations adduced to support the manifold features of liability. Moreover, they provide a critical perspective internal to the law, because justifications that do not fit within these unifying ideas are problematic from the standpoint of liability itself.
These ideas emerge from the notion that liability is justified when a certain kind of connection obtains between the parties. This description of liability indicates that a theory of liability must comprehend two general features. The first is the nature of the connection between the parties: what is it that allows the law to single out two specific parties from all the people in the world and link them as plaintiff and defendant? The second is the nature of the parties: in view of the diversity of human interests and characteristics, what conception of the parties is normatively capable of serving as the basis of the defendant’s liability to the plaintiff? The unifying ideas implicit in liability are the answers, formulated in the most abstract terms, to these two questions.
The conceptions of the parties and of the connection between them are mutually complementary. In dealing with liability, we are interested in the parties only because of the normative connection between them; and we are interested in that connection only because the parties are normatively capable of association in terms of liability. Accordingly, the parties must be conceptualized in a way that makes liability the necessary mode of connecting them; and the connection between the parties must be conceptualized in a way that makes necessary a certain construal of what, from the standpoint of liability, is normatively significant about them. These two unifying ideas are thus the same idea presented under different aspects. Indeed, if they were not the same idea, the legal phenomenon to which they apply would have to be understood not as a unity but as a pluralism of at least two independent ideas. This conclusion would defeat the aspirations of the juridical conception by indicating that liability—and the justificatory considerations that underlie it—was incapable of being understood as an internally coherent whole.
In the juridical conception of corrective justice, the two complementary ideas are correlativity and personality. Correlativity, which was first highlighted in Aristotle’s account of corrective justice,3 is the abstract formulation of the connection that exists between the parties in a regime of liability. Personality, which was most fully articulated in the philosophical tradition of natural right that culminated in Kant and Hegel,4 presents in similarly abstract terms what is normatively significant about the interacting parties for purposes of liability. Although the two ideas are ultimately congruent, they start from different aspects of liability. Correlativity abstracts from the institutional framework of the plaintiff–defendant lawsuit and inquires into the structure of the justifications that coherently fit into this institutional framework. Personality abstracts from the doctrinal framework of rights and duties in order to exhibit the content of private law justification in its most general form; it then extends its attention to the institutions that give coherent effect to that doctrinal framework. Together, correlativity and personality are the interlocking foundation stones of a theory of liability.
Aristotle presents corrective and distributive justice as two contrasting forms of justice. Corrective justice, which deals with voluntary and involuntary transactions (today’s contracts and torts), focuses on whether one party has done and the other has suffered a transactional injustice. Distributive justice deals with the distribution of whatever is divisible (Aristotle mentions honors and goods) among the participants in a political community. For Aristotle, justice in both these forms relates one person to another according to a conception of equality or fairness (the Greek to ison connotes both). Injustice arises in the absence of equality, when one person has too much or too little relative to another.
The two forms differ, however, in the way they construe equality. Distributive justice divides a benefit or burden in accordance with some criterion that compares the participants’ merit relative to one another. Distributive justice therefore embodies a proportional equality, in which all participants in the distribution receive their shares according to their respective merits under the criterion in question.
Corrective justice, in contrast, features the maintenance and restoration of the notional equality with which the parties enter the transaction. This equality consists in persons having what lawfully belongs to them. Injustice occurs when, relative to this baseline, one party realizes a gain and the other a corresponding loss. The law corrects this injustice when it re-establishes the initial equality by depriving one party of the gain and restoring it to the other party. Aristotle likens the parties’ initial positions to two equal lines.5 The injustice upsets that equality by adding to one line a segment detached from the other. The correction removes that segment from the lengthened line and returns it to the shortened one. The result is a restoration of the original equality of the two lines.
As its name indicates, corrective justice has a rectificatory function. By correcting the injustice that the defendant has inflicted on the plaintiff, corrective justice asserts a connection between the remedy and the wrong. From the perspective of corrective justice, a court does not treat the situation being adjudicated as a morally neutral given and then ask what is the best course for the future, all things considered. Rather, because the court aims to correct the injustice done by one party to the other, the remedy responds to the injustice and endeavors, so far as possible, to undo it.
Aristotle’s account makes it clear that this rectification operates correlatively on both parties. A remedy directed to only one of the parties does not conform to corrective justice. For the court merely to take away the defendant’s wrongful gain does not suffice, because then the plaintiff is still left suffering a wrongful loss. Nor does it suffice for the court merely to replenish the plaintiff’s loss, for then the defendant will be left holding his or her wrongful gain. The remedy consists in simultaneously removing the defendant’s excess and making good the plaintiff’s deficiency. Justice is thereby achieved for both parties through a single operation in which the plaintiff recovers precisely what the defendant is made to surrender.
From these two features of the corrective justice remedy—that it responds to the injustice and is correlatively structured—a third follows. A correlatively structured remedy responds to and undoes an injustice only if that injustice is itself correlatively structured. In bringing an action against the defendant the plaintiff is asserting that they are connected as doer and sufferer of the same injustice. As is evidenced by the judgment’s simultaneous correction of both sides of the injustice, what the defendant has done and what the defendant has suffered are not independent items. Rather, they are the active and passive poles of the same injustice, so that what the defendant has done counts as an injustice only because of what the plaintiff has suffered, and vice versa. The law then rectifies this injustice by reversing its active and passive poles, so that the doer of injustice becomes the sufferer of the law’s remedy. Only because the injustice is the same from both sides does the remedy treat the parties as correlatively situated. Thus throughout the transaction, from the occurrence of the injustice to its rectification, each party’s position is normatively significant only through the position of the other, which is the mirror image of it.
The idea that correlativity informs the injustice, as well as its rectification, is a central insight of the juridical conception of corrective justice. This insight points to the kind of justifications that are appropriate for determinations of liability. To think of something as an injustice is not to refer to a brute event but to make a normative ascription. The correlativity of the injustice is, therefore, the correlativity of the normative considerations that underlie that ascription. Because the defendant, if liable, has committed the same injustice that the plaintiff has suffered, the reason the plaintiff wins ought to be the same as the reason the defendant loses. Thus in specifying the nature of the injustice, the only normative factors to be considered significant are those that apply equally to both parties. A factor that applies to only one of the parties—for example, the defendant’s having a deep pocket or being in a position to distribute losses broadly—is an inappropriate justification for liability because it is inconsistent with the correlative nature of the liability. Accordingly corrective justice not only rectifies injustice in transactions; by structuring the justificatory considerations relevant to transactions, it is also regulative of the notion of injustice that is applicable to them.
Thus, correlativity is the structural idea that underlies the most obvious and general feature of liability, that the liability of the defendant is always a liability to the plaintiff. Liability consists in a legal relationship between two parties each of whose position is intelligible only in the light of the other’s. In holding the defendant liable to the plaintiff, the court is making not two separate judgments (one that awards something to the plaintiff and the other that coincidentally takes the same from the defendant), but a single judgment that embraces both parties in their interrelationship. The defendant cannot be thought of as liable without reference to a plaintiff in whose favor such liability runs. Similarly, the plaintiff’s entitlement exists only in and through the defendant’s correlative obligation. The court’s finding of liability is the response to an injustice that, accordingly, has the same correlative shape as liability itself.