Abstract
In this paper, I ask how – and whether – the rectification of injury at which corrective justice aims is possible, and by whom it must be performed. I split the injury up into components of harm and wrong, and consider their rectification separately. First, I show that pecuniary compensation for the harm is practically plausible, because money acts as a mediator between the damaged interest and other interests. I then argue that this is also a morally plausible approach, because it does not claim too much for compensation: neither can all harms be compensated, nor can it be said when compensation is paid that the status quo ante has been restored. I argue that there is no conceptual reason for any particular agent paying this compensation. I then turn to the wrong, and reject three proposed methods of rectification. The first aims to rectify the wrong by rectifying the harm; the second deploys punitive damages; the third, punishment. After undermining each proposal, I argue that the wrong can only be rectified by a full apology, which I disaggregate into the admission of causal and moral responsibility, repudiation of the act, reform, and, in some cases, disgorgement and reparations, which I define as a good faith effort to share the burden of the victim’s harm. I argue, further, that only the injurer herself can make a full apology, and it is not something that can be coerced by other members of society. As such, whether rectification of the wrong can be a matter of corrective justice is left an open question.
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Notes
I discuss the other two elements in Lazar (2006).
This can also mean setting the victim as he would have been now had the injury not occurred; if anything, this is less practically plausible, because it depends on indeterminate counterfactuals. I do not, however, explore this contrast further here.
I defend this conception of injury in Lazar (2006).
Goodin (1991) calls these means-replacing, and ends-displacing forms of compensation. Constraints of space prevent me discussing Robert Nozick’s (1974, Chap. 4) influential account of compensation, though his description of full compensation as rendering the victim indifferent between {harm, compensation} and {no harm, no compensation} is equivalent to my account, provided (a) the victim’s indifference between the two sets does not make them qualitatively, as well as quantitatively equivalent, (b) we are not restricted to the victim’s subjective assessment of his interests alone, and (c) we recognise that for some harms no compensation is sufficient.
Griffin (1986, p. 85), grounds and develops the concept of discontinuity, a task too complex to be assayed here, where I rely on its intuitive plausibility.
This is true even in the most simple cases of restitution: if A steals x from B, and subsequently returns it, he still cannot remove the setback to B’s interests of the initial theft, or the harmful experience of being the victim of a theft.
The exchange value is the same; obviously the use value of the holdings is different for the two parties, otherwise they would not exchange at all.
I look in greater depth at the distinction drawn by Weinrib between “normative” and “factual” gain and loss in Lazar (2006).
Evidently there is greater disrespect involved in intentionally injuring someone than in negligently doing so, and more in negligence than in mere carelessness. Even carelessness, however, does impute insufficient respect for the victim’s equal status: had it been properly acknowledged, the injurer would not have been careless.
Feinberg’s terminology is different from mine; he uses ‘reparations’ where I use ‘compensation’, and gives the latter a special meaning. I have adapted the paraphrase accordingly.
In the classic defence of retributivism in criminal justice, Hegel (1991, Sect. 101R) stresses the need for this equality.
As Honoré (1995) notes, when defending such a principle. Of course, if we do not defend the retributive principle then disproportionality between harm and wrong is not a problem.
Note that the prostitute’s consent may be of dubious value, and the right he alienates might be inalienable, but neither point renders the second set coherent.
Even Hegel ridicules the lex talionis, in Hegel (1991, Sect. 101R).
See ‘The Expressive Function of Punishment’ in Feinberg (1970).
This is not an exhaustive theory of apology: apologies may also be appropriate in other circumstances, with different content. I only consider their role in rectifying an injurious wrong.
Note that there is a difference between accepting an apology and forgiving the apologiser. Forgiveness is a complex topic, beyond the scope of this paper.
To reject an apology is simply to challenge that it is in some way incomplete. Incomplete apologies are a familiar feature of everyday experience: we all know what it means to say (or be told) “Really apologise”, or “Say it like you mean it”.
Smith (2005) distinguishes, unnecessarily I think, between corroborating the factual record and accepting causal responsibility. I combine the two in this category.
Gill (2000, p. 14) argues that only one of the parties concerned need believe the incident actually occurred, as though it would be reasonable to accept an apology from an offender who continues to deny that the injury actually took place. This is surely false.
Thanks to a reviewer for this Journal for suggesting the importance of explanation as a component of full apology. I think it would prove even more important were we to focus on the conditions of forgiveness, although, again, that takes us beyond the scope of this paper.
Again, Gill (2000) thinks only one of the parties must believe the act inappropriate. If the apologiser does not believe the act wrong, she must at least accept the legitimacy of the victim taking offence. This is surely a mistake: to acknowledge that the act was injurious is to recognise the rights that you violated; to deny this is to continue to impugn the victim’s moral status. “I’m sorry that you think I injured you” is not an adequate apology.
Note that this rules out apologies made solely out of self-interest, since they cannot manifest proper commitment to the relevant principles.
Reoffending will sometimes be the product of weakness of will; however, if the reoffender is reasonable and autonomous, this cannot count as an excuse. If she rejects the mantle of autonomy then she poses a different problem.
Gill (2000, p. 14) again opts for a more tentative version, suggesting that “the person to whom the apology is offered is justified in believing that the offender will try to refrain from similar offences in the future”. This is not, I think, strong enough: a person who apologises but reoffends may mean well, and merely suffer from weakness of will, but her actions still imply that, deliberately or otherwise, she does not respect B as a right-holder.
I stick to this idiosyncratic use of the term throughout.
One might authorise another to apologise on one’s behalf, but only insofar as they merely act as an agent, or messenger.
Gill (2000) argues that an apology only requires that “either the party offering the apology takes responsibility for the act, or there is some relationship between the responsible actor and the apologiser such that her taking responsibility for offering the apology is justifiable”. Again, this is not strong enough. Only insofar as we can make an argument for collective agency and collective responsibility, I contend, can we entitle one person to apologise for the action of another.
Roberts (2002) argues that argues that we cannot, in justice, demand that an individual change his behaviour, and for this reason excludes apology from the domain of justice. I disagree: courts frequently suspend sentences on condition of individuals not re-offending.
Thanks, for suggesting this second approach, to a reviewer for this Journal.
This might be a logical point: if an apology is genuine, then one would not want or seek any mitigation of the different components of apology, since each follows on from the others.
Further discussion of the role of apology in criminal justice takes me, unfortunately, beyond the scope of this paper.
References
Aristotle (2000) Nichomachean Ethics (trans. and ed. R. Crisp). Cambridge University Press, Cambridge
Bentham J (1995) The utilitarian theory of punishment. In: Gorr MJ, Harwood S (eds) Crime and punishment: philosophic explorations. Jones and Bartlett, London
Chapman B (1995) Wrongdoing, welfare, and damages: recovery for non-pecuniary loss in corrective justice. In: Owen D (ed) Philosophical foundations of tort law. Oxford University Press, Oxford
Coleman JL (1992) Risks and wrongs. Cambridge University Press, Cambridge
Feinberg J (1970) Doing and deserving: essays in the theory of responsibility. Princeton University Press, Princeton
Gaus GF (1991) Does compensation restore equality? In: Chapman JW (ed) Nomos XXXIII: compensatory justice. New York University Press, London
Gill K (2000) The moral functions of an apology. Philos Forum 31:11–27
Goodin RE (1991) Compensation and redistribution. In: Chapman JW (ed) Nomos XXXIII: compensatory justice. New York University Press, London
Gordley J (1995) Tort law in the Aristotelian tradition. In: Owen D (ed) Philosophical foundations of tort law. Oxford University Press, Oxford
Griffin J (1986) Well-being: its meaning, measurement, and moral importance. Oxford University Press, Oxford
Hegel GWF (1991) Elements of the philosophy of right, translated by H. B. Nisbet. Cambridge University Press, Cambridge
Honoré T (1995) The morality of tort law: questions and answers. In: Owen D (ed) Philosophical foundations of tort law. Oxford University Press, Oxford
Jaspers K (2000) The question of German guilt (trans. E. B. Ashton). Fordham University Press, New York
Kant I (1996) The metaphysics of morals (trans. and ed. M. Gregor). Cambridge University Press, Cambridge
Lazar S (2006) A critical analysis of corrective justice. Dissertation, University of Oxford
Nozick R (1974) Anarchy, state, and utopia. Blackwell, Oxford
Perry SR (1992) The moral foundations of tort law. Iowa Law Rev 77:449–514
Raz J (1986) The morality of freedom. Oxford University Press, Oxford
Roberts RC (2002) Justice and rectification: a taxonomy of justice. In: Roberts RC (ed) Injustice and rectification. Peter Lang, Oxford
Simons KW (1996) Deontology, negligence, tort, and crime. Boston Univ Law Rev 76:273–299
Smith N (2005) The categorical apology. J Soc Philos 36:473–496
Sunstein CR (1997) Incommensurability and kinds of valuation: some applications in law. In: Chang R (ed) Incommensurability, incomparability, and practical reason. Harvard University Press, Cambridge, Mass
Waldron J (1995) Moments of carelessness and massive loss. In: Owen D (ed) Philosophical foundations of tort law. Oxford University Press, Oxford
Weinrib EJ (1992) Corrective justice. Iowa Law Rev 77:403–425
Weinrib EJ (1995) The idea of private law. Harvard University Press, London
Wright RW (1995) Right, justice, and tort law. In: Owen D (ed) Philosophical foundations of tort law. Oxford University Press, Oxford
Acknowledgments
While researching and writing this paper I benefited from the generous support of both St Peter’s College and the Department of Politics, at the University of Oxford, and the Arts and Humanities Research Council. Thanks also to two reviewers of this Journal for their helpful comments, and especially to David Miller, whose encouragement and criticism were integral to the development of both this paper, and the project of which it is a part.
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Lazar, S.R.M. Corrective Justice and the Possibility of Rectification. Ethic Theory Moral Prac 11, 355–368 (2008). https://doi.org/10.1007/s10677-008-9108-8
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DOI: https://doi.org/10.1007/s10677-008-9108-8