Gardner on Corrective Justice Comment on From Personal Life to Private Law

2019 ◽  
Vol 19 (1) ◽  
pp. 21-33
Author(s):  
Linda Radzik
Keyword(s):  
Personal Life ◽  
Corrective Justice ◽  
Private Law

scholarly journals DUTIES AND LIABILITIES IN PRIVATE LAW

Legal Theory ◽  
2006 ◽  
Vol 12 (2) ◽  
pp. 137-156
Author(s):  
Peter Jaffey
Keyword(s):  
Strict Liability ◽  
Corrective Justice ◽  
Private Law ◽  
Liability Claims

Private law is generally formulated in terms of right–duty relations, and accordingly, private-law claims are understood to arise from breaches of duty, or wrongs. Some claims are not easy to explain on this basis because the claim arises from an act that the defendant was justified in doing. The violation/infringement distinction seems to offer an explanation of such claims, but it is argued that the explanation is illusory. Claims of this sort are best understood as based not on a primary right–duty relation at all but on a “primary liability” or “right–liability” relation. A primary-liability claim is not a claim arising from the breach of a strict-liability duty. The recognition of primary-liability claims does not involve skepticism about duties or rules or legal relations and it is consistent with the analysis of private law in terms of corrective justice.

Private Law Exceptionalism? Part II: A Basic Difficulty with the Argument from Formal Equality

2018 ◽  
Vol 31 (1) ◽  
pp. 5-32
Author(s):  
Avihay Dorfman
Keyword(s):  
Corrective Justice ◽  
Private Law ◽  
Logical Space ◽  
Substantive Equality ◽  
Formal Equality ◽  
Justice Theories

Contemporary discussions of private law theory often assume that parties in a private law interaction can relate as equals if, and only if, equality is cast in terms of formal equality (sometimes called transactional equality). I devote these pages to refute this conceptual view, showing that it does not draw correctly the map of the logical space in which conceptions of private law equality are located. Negatively, I argue that the formal conception of equality, most comprehensively defended by certain influential corrective justice theories, does not exhaust this space. Affirmatively, I argue that this space provides room for at least one more conception which I call ‘substantive equality’.

Private liability without wrongdoing

2021 ◽  
Author(s):  
Rebecca Stone
Keyword(s):  
Essential Role ◽  
Legal Liability ◽  
Corrective Justice ◽  
Private Law ◽  
Political Morality ◽  
The Poor ◽  
Poor Person ◽  
Distribution Of Resources ◽  
The Rich ◽  
Prior Relationship

Rights-based theories of private law tend to be wrongs based and defendant focused. But many private law wrongs do not seem like genuine wrongs, at least when the background distribution of resources is unjust. A very poor person, for example, may be held legally liable for breaching a one-sided contract with a very rich person. When such a contract reflects and reproduces existing injustice, it is hard to view the poor person’s breach of such a contract as a genuine wrong against the rich person. Conversely, some obvious moral wrongs do not generate legal liability. There is, for example, no private law duty of rescue in the absence of a prior relationship in many situations in which most would agree that there is a moral duty of rescue. Thus, private legal liability seems not to track moral wrongdoing in significant respects, raising the question what instead justifies such liability. Instead of justifying private liability in terms of the defendant’s wrongdoing, as corrective justice and civil recourse theorists do, we should seek a justification in terms of the plaintiff’s moral permission to enforce her apparent rights. Switching our gaze from the defendant’s wrongdoing to the plaintiff’s moral permission to enforce her rights will not be normatively consequential if the plaintiff’s moral permission arises when and only when the defendant has wronged her. But, I argue, background injustice can drive a wedge between genuine wrongdoing and the plaintiff’s moral permission. Thus, by reconceptualizing private liability in terms of a plaintiff’s moral permission to enforce her apparent rights, private law may be justified by the essential role it plays in constituting non-ideal political morality.

The Idea of Redressive Justice

2020 ◽  
pp. 21-53
Author(s):  
Andrew S. Gold
Keyword(s):  
Third Parties ◽  
Corrective Justice ◽  
Private Law ◽  
The Right

Chapter 2 introduces the idea of redressive justice, while also distinguishing leading theories of corrective justice. As the chapter develops, there is a distinctive kind of justice involved when right holders undo wrongful transactions they have suffered—that is, when they engage in acts of redress—or when third parties undo such transactions on the right holder’s behalf. The authorship of a remedy matters, in part because a wrongdoer’s obligation to undo a wrong is not symmetrical with a right holder’s privilege (if it exists) to undo that same wrong. Authorship also matters because the moral ledger of the parties involved will vary depending on which party undoes a wrong. This chapter argues that much of private law is best explained in light of the justice in redress.

Correlativity and its Logic: Asymmetry not Equality in the Law

2019 ◽  
Vol 32 (1) ◽  
pp. 83-108
Author(s):  
Andrew Halpin
Keyword(s):  
Human Rights ◽  
Social Relationships ◽  
Corrective Justice ◽  
Legal Rights ◽  
Private Law ◽  
The Core ◽  
The Law ◽  
Instrumental View

This article provides a scheme of intelligibility for correlativity, recognising its importance for analytical and normative aspects of legal relations. It considers a variety of types of normative correlativity, investigates the logic of correlativity, and distinguishes three forms of correlation involving legal rights. It undertakes careful re-examination of Aristotelian texts to reveal neglected or misrepresented insights, restores certain Hohfeldian distinctions, and argues for a more complicated relationship between correlativity and reciprocity than previously acknowledged. Specific sections employ the scheme to provide critiques of Weinrib’s use of correlativity in his understanding of private law as corrective justice, and Zylberman’s amalgam of reciprocal correlativity in his non-instrumental view of human rights. A brief concluding section notes the deep asymmetry of law and suggests an understanding of corrective justice based on asymmetry rather than equality. More speculatively, it raises doubts about the core conviction of Kantian thinking on legal and social relationships.

Troubled Foundations for Private Law

2008 ◽  
Vol 21 (2) ◽  
pp. 459-476
Author(s):  
Stephen A. Smith
Keyword(s):  
Distributive Justice ◽  
Human Life ◽  
Civil Law ◽  
Corrective Justice ◽  
Property Law ◽  
Private Law ◽  
Wide Range ◽  
Commutative Justice ◽  
The Law ◽  
Historical Comparative

In The Foundations of Private Law James Gordley argues that the modern private law in common and civil law jurisdictions is best explained on the basis of a neo-Aristotelian theory first developed by a group of 16th century Spanish thinkers known as the ‘late scholastics’. The concepts of distributive and commutative justice that, according to Gordley, lay at core of the scholastics’ theory and that explain, respectively, modern property law and the law of obligations (contract, tort, unjust enrichment), though ignored and disparaged for much of the 19th and 20th centuries, are today familiar to most private law scholars (thanks in part to Gordley’s earlier work). Yet Gordley’s understanding of these concepts and, in particular, of their relationship both to one another and to the apex idea of ‘living a distinctively human life’ is unique, setting his account apart not just from utilitarian and other ‘modern’ accounts of private law, but also from other neo-Aristotelian theories (e.g., those of Ernest Weinrib or Jules Coleman). In Gordley’s presentation, commutative (or ‘corrective’) justice is derived from distributive justice and distributive justice is derived from the idea of the distinctively human life. Confidently traversing a wide range of historical, comparative and theoretical materials, the book’s argument is at once ambitious, learned, and elegantly presented. But as a theoretical account of the foundations of the modern private law it is unpersuasive. The book’s own account of property law suggests that in practice the idea of distributive justice does little, if any, work in explaining the rules we actually have. Nor is it clear how, if at all, distributive justice flows from the allegedly foundational idea of the ’distinctively human life’. As for commutative justice, it is not clear why, if is derived from distributive justice in the way Gordley believes, the courts should care about it. Finally, but perhaps most significantly, Gordley’s conception of commutative justice is unable to account for central features of the law of obligations.

Introduction

2018 ◽  
Author(s):  
John Gardner
Keyword(s):  
Personal Life ◽  
Private Law ◽  
Unjust Enrichment ◽  
The Law ◽  
Monist View

This introductory chapter clarifies the definitions of ‘personal life’ and ‘private law’ as undertaken by this book. Roughly, ‘personal life’ refers to what people do (as well as what they think, believe, want, etc.) apart from the law. The chapter discusses a ‘monist’ view that what private law would have us do is best understood by reflecting on what we should be doing, quite apart from private law, which entails reflection on the reasons why we should be doing it. As to ‘private law’, this chapter and the book as a whole primarily refer to the law of torts and the law of contract. This definition excludes a few similar but unrelated concepts such as unjust enrichment, breach of trust, and breach of confidence.

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