Abstract
This chapter introduces the notions, first developed by Aristotle, of distributive and corrective justice. I connect the distinction between those notions with a view referred to as “monism” in political philosophy and contract law.” Monists reject the distinction between distributive and corrective justice. The chapter discusses the basic tenets of two monist positions. On the one hand, those holding “the distributive approach” hold the view that there is no such thing as “private ordering”; on the other hand, libertarians argue that there is never anything else. This introductory discussion is a preliminary basis for the discussion in the following two chapters, where two monist accounts of the foundations of contract law are discussed.
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- 1.
John Gardner, “The Purity and Priority of Private Law” (1996), 46 U. Toronto L. J. 459 at 468.
- 2.
Peter Benson, “The Basis of Corrective Justice and Its Relation to Distributive Justice” (1992), 77 Iowa L. Rev. 515 at 535.
- 3.
Aquinas, for example, describes distributive justice as “the order of the whole towards the parts, to which corresponds that which belongs to the community in relation to each single person,” that is, the relationship between the whole and the part, and corrective justice as the “order of one part to another.” See Thomas Aquinas, Summa Theologica, trans., Fathers of the Dominican English Province(Westminster: Christian Classics, 1981), vol. 3, II-II, Q. 61, Art. 1.
- 4.
Gardner, supranote 1.
- 5.
Ibid.
- 6.
For an explanation of Kelsen’s objections, see Ernest Weinrib, The Idea of Private Law(Cambridge: Harvard University Press, 1995), 66–68.
- 7.
Nicomachean Ethics, cited in James Gordley, “Equality in Exchange” (1981), 69 Cal. L. Rev. 1587 at 1589.
- 8.
Here I’m following James Gordley’s reading of Aristotle. Ibid.
- 9.
Benson, supranote 2 at 535.
- 10.
Gordley, supranote 7.
- 11.
Benson, supranote 2 at 536.
- 12.
Though how I behave with regards to the others may be important in several ways: for example, if our distributive scheme were based upon the principle of assigning claims “to each according to how she relates to other individuals.”
- 13.
Robert Nozick famously referred to these theories of distributive justice as “patterned theories.” I will address Nozick’s claims on distributive justice later in this book. See Robert Nozick, Anarchy, State, and Utopia(New York: Basic Books, 1974) and my analysis inChap. 4of this book.
- 14.
John Rawls described these theories as “ideal social process views” of distributive justice. These kinds of theories focus on the institutional structure and on the regulations that are necessary to preserve background justice over time. They do not look at the way in which people interact with each other. By contrast, “ideal historic process views” of justice focus on how the principles of justice constrain transactions made by individuals. I’ll come back to this distinction when discussing the libertarian position later on in this chapter. See Rawls, Justice as Fairness– A Restatement(Cambridge: The Belknap Press of the Harvard University Press, 2001), 52–54.
- 15.
Ibid.
- 16.
Arthur Ripstein, Equality, Responsibility, and the Law(Cambridge: Cambridge University Press, 1999), 273–274. I’ll discuss Rawls’ theory of distributive justice in more detail inChap. 5.
- 17.
Aristotle and various scholars that have discussed corrective justice use the term “transaction” to make reference to interpersonal interactions.
- 18.
Gardner, supranote 1 at 467.
- 19.
Ernest Weinrib, “Corrective Justice in a Nutshell” (2002), 52 U. Toronto L. J. 349.
- 20.
Weinrib, supranote 6 at 62.
- 21.
Aristotle, 1985. Nicomachean Ethics,trans., Terence Irwin (Indianapolis/Cambridge: Hackett Publishing Co., 1985), 1132a5.
- 22.
See Stephen Perry, “On the Relationship Between Corrective and Distributive Justice,” in Oxford Essays in Jurisprudence, Fourth Series, ed. Jeremy Horder (Oxford: Oxford University Press, 2000), 237.
- 23.
In fact, interpersonal relations may take three different forms. Besides consensual interactions through contract, there are also involuntary interactions, dealt with by tort law, and cases of one person acting on behalf of another. An example of this last category is the relationship between parents and their children whose consent to being conceived is, obviously, never sought. Because of that, and as in other relationships based on trust, when they make decisions regarding their children, parents may only act to benefit them. This point was made by Kant in his Doctrine of Right. I say more about these different categories inChap. 6.
- 24.
Weinrib, supranote 19 at 352.
- 25.
As Rawls puts it, “[t]he difference principle…applies to the announced system of public law and statutes and not to particular transactions or distributions, nor to the decisions of individuals and associations, but rather to the institutional background against which these transactions and decisions take place.” See John Rawls, Political Liberalism(New York: Columbia University Press, 1992), 283.
- 26.
Liam Murphy, “Institutions and the Demands of Justice” (1998), 27 Phil. & Pub. Aff. 251.
- 27.
Idemat 253.
- 28.
See Thomas Nagel, Equality and Partiality(New York: Oxford University Press, 1991), chap. 6.
- 29.
Murphy, supranote 26 at 258.
- 30.
Idemat 260–261.
- 31.
Anthony Kronman, (1980) 89 Yale L.J. 472. More recently, a similar view has been advanced by K. A. Kordana and D. H. Tabachnik, “Rawls and Contract Law” (2005), 73 George Washington L. Rev. 598 and “On Belling the Cat: Rawls and Corrective Justice” (2006), 92 Virginia. L. Rev. 1279.
- 32.
This is Peter Benson’s formulation. See Peter Benson, “The Basis of Corrective Justice and Its Relation to Distributive Justice” (1992), 77 Iowa L. Rev. 515 at 518.
- 33.
John Rawls, A Theory of Justice, rev. ed. (Cambridge: Harvard University Press, 1999).
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Hevia, M. (2013). Setting the Scene: Distributive Justice, Corrective Justice, and Monism in Political Philosophy and Contract Law. In: Reasonableness and Responsibility: A Theory of Contract Law. Law and Philosophy Library, vol 101. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4605-3_2
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