The Distributive Foundation of Corrective Justice
There are two, apparently conflicting, approaches to private law theorizing. One approach – by now, dare I say, the prevailing approach – analyzes private law through the lens of its social, economic, cultural, or political meanings and ramifications. For the purposes of this Article, we may call the proponents of this approach the “social values school.” Other theorists, those who take a corrective justice approach, insist that the adjective “private” is significant and should be the starting point for any understanding of “private law.” They claim that this starting point inevitably generates a radically different understanding of private law. Organized around the Aristotelian concept of corrective justice, private law, as they envision it, is a realm with its own inner intelligibility, which appear to be isolated from the social, economic, cultural, and political realms. This Article is an attempt to evaluate the corrective justice approach to private law by concentrating on the accounts of one area in private law – the doctrine of restitution for wrongs and especially for appropriations. In Unjust Enrichment: A Study of Private Law and Public Values, I offered a theory of this body of law, which clearly belongs to the first approach to private law theory. Recently, in Restitutionary Damages as Corrective Justice, Ernest Weinrib – the most eloquent advocate of the corrective justice approach to private law – has offered a competing account. This Article confronts these accounts (briefly presented in Parts I and II, respectively) in order to address the competing approaches to private law. Part III of this Article attempts to isolate from Weinrib’s account a valuable lesson for any attempt at private law theorizing, including my own. I find persuasive the assertion that correlation between the defendant’s liability to the plaintiff’s entitlement is an indispensable component of private law. I concede that by overlooking this implication of the “private” nature of private law the social values school has too frequently blurred the distinction between private law and regulation. Moreover, I acknowledge that correlativity may require a refinement of my earlier account. In particular, I counsel caution towards any measure of recovery that vindicates not only the plaintiff’s claims to well-being and/or control, but also society’s condemnation of antisocial behavior.