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Published online by Cambridge University Press: 09 June 2015
Nearly twenty-five hundred years ago, Aristotle first elucidated his theory of morality in the Nicomachean Ethics by systematically examining and analyzing the virtues which he felt were necessary for the attainment of the Good in the here and now. One of the most controversial and perhaps least understood portions of this magnum opus are those that pertain to the now famous building blocks of legal philosophy: corrective and distributive justice. These terms remain as relevant today as when they were first “discovered” in large part due to modern legal theory’s increasing tendency to rely on Aristotle’s corrective and distributive ideas as the organizing and distinguishing principles of the private and public law, respectively. If corrective justice is to define the limits and form of the private law, however, a blind reliance on Aristotle’s interpretation is mistaken. An examination of Aristotle’s corrective justice shows that his legal philosophy is incomplete and often paradoxical—asserting premises that are irreconcilable on a plain reading of Aristotelian texts. In order to demonstrate these inconsistencies, this paper will first distinguish between corrective and distributive justice. It will then examine three of the most difficult and least understood aspects of corrective justice: namely, Aristotle’s conception of equality, reciprocity, and correlativity in gain and loss.
1. This is a paraphrase of Aristotle’s famous quotation concerning his teacher Plato. Taken from A. Partington, The Oxford Dictionary of Quotations, 4th ed. (New York: Oxford University Press, 1996) at 27.
2. Aristotle, Nicomachean Ethics, trans. T. Irwin (Indianapolis, IN: Hackett Publishing, 1985) [hereinafter NE].
3. E. J. Weinrib, “The Gains and Losses of Corrective Justice” (1994) 44 Duke L.J. 277 at 281 [hereinafter GL\ See also S. R. Perry, “The Moral Foundations of Tort Law” (1992) 77 Iowa L. R. 449 at 452.
4. NE, supra note 2 at 1130b30–35 and P. Benson, “The Basis of Corrective Justice and Its Relation to Distributive Justice” (1992) 77 Iowa L. R. 515 at 515–16.
5. NE, supra note 2 at 1131b13–15.
6. Aristotle recognizes that what constitutes the proper criterion is, and remains, a source of great disagreement. See NE, supra note 2 at 1131a25 and Perry, supra note 3 at 453. In Aristotle, The Politics, trans. E. Barker (Oxford: Oxford University Press, 1946) at 1293b32–36 [hereinafter The Politics]. Aristotle concludes that the proper criterion of distributive justice is “political virtue”, viz., the capacity to contribute to the life and functioning of the polis (for a similar view see J. Barnes, ed., The Cambridge Companion to Aristotle (Cambridge: Cambridge University Press, 1995) at 222). In The Politics at 1280b39–1281a8 Aristotle concludes that for most states, the best constitution is “a fusion of democracy and oligarchy,” in which the non-desirable portions of each system are balanced off by the other.
7. NE, supra note 2 at 1130b30–35 and Benson, supra note 2 at 536.
8. NE, supra note 2 at 113lal-5 and 1132al-8.
9. Benson, supra note 4 at 515.
10. E.J. Weinrib, The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995) at 72 [hereinafter PL]. But see contra K. Marc-Wogau, “Aristotle’s Theory of Corrective Justice and Reciprocity” in K. Marc-Wogau, Philosophical Essays (Skara, Sweden: Västergötlands Tryckeri, 1967) 21 at 24. The professor argues that corrective justice is just a special case of distributive justice based on the mathematics. If it is true thatX;y= CD (where X and Y are people and C and D are their respective shares) then if X and Y are equal as Aristotle claims, then by operation of mathematics C and D must be equal as well. Although this is an interesting argument, it seems to fail on account of Aristotle’s strong claim that corrective justice and distributive justice are in fact very different and irreducible. See NE, supra note 2 at 1130b30-l 13 lalO.
11. NE, supra note 2 at 1132a5–11.
12. GL, supra note 3 at 282. This is Weinrib’s translation of NE, supra note 2 at 1132a22.
13. NE, supra note 2 at 1132b25–32 and GL, supra note 3 at 280.
14. The repair of wrongful losses is not sufficient on its own to make corrective justice a decidedly different species from distributive justice. The repair of victims’ wrongful losses might just as well be a criterion of merit under distributive justice scheme. See GL, supra note 3 at 282.
15. M. Stone, “On the Idea of Private Law” (1996) 2 Can. J. L. & Juris. 235 at 248.
16. NE, supra note 2 at 1132al-8.
17. T. Aquinas, Commentary on the Nicomachean Ethics, trans. C. Litzinger (South Bend, IN: Dumb Ox Books, 1993) vol. 1 at 411.
18. See Plato, The Republic, trans. G.M.A. Grube (Indianapolis, IN: Hackett Publishing, 1974) where he discusses the myth of the metals and the noble lie.
19. PL, supra note 10 at 57.
20. See e.g., A. Mclntyre, Whose Justice? Whose Rationality? (London: Duckworth, 1988) at 103–04; G. Fletcher, “Corrective Justice For Moderns” (1993) 106 Harv. L. Rev. 1658 at 1688, M. Hamburger, Morals and Law The Growth of Aristotle’s Legal Theory (New Haven, CT: Yale University Press, 1951) at 46 and R. Dworkin, “What is Equahty? Part 2: Equality of Resources” (1981) Phil. & Publ. Affairs 283.
21. See e.g., Benson, supra note 4 at 530 and supra note 15 at 247.
22. Example adapted from Stone, supra note 15 at 247.
23. Ibid, at 247. See also Perry, supra note 3 at 451.
24. Stone, supra note 15 at 248.
25. Benson, supra note 4 at 530.
26. Stone, supra note 15 at 247.
27. See e.g., Benson, supra note 4 at 530. But see contra Marc-Wogau, supra note 10 at 30 who states that indifference to particularities is not part of corrective justice per se but rather an explanation of the proper role and function of the judge.
28. PL, supra note 10 at 79.
29. Benson, supra note 4 at 531.
30. PL, supra note 10 at 79.
31. See NE, supra note 2 at 1132a25.
32. PL, supra note 10 at 79 and Stone, supra note 15 at 238. See also R. Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974) at 160–94.
33. See R. W. Wright, “Substantive Corrective Justice” (1992) 77 Iowa L. R. 625 at 706.
34. NE, supra note 2 at 1131a.
35. Ibid, at 1132al-10 and PL, supra note 10 at 79.
36. Wright, supra note 33 at 692 and W.J. Waluchow, “Professor Weinrib on Corrective Justice” in S. Panagiotou, ed., Justice, Law and Method in Plato and Aristotle (Edmonton, Alberta: Academic Printing & Publishing, 1987) 153 at 156.
37. Perry, supra note 3 at 455.
38. See Benson, supra note 4 at 536 where he states that both distributive and corrective justice presuppose a regime of private ownership.
39. Above description from Perry, supra note 3 at 454.
40. Ibid, at 454.
41. Benson, supra note 4 at 531.
42. Ibid, at 532.
43. As Aristotle himself claims at NE, supra note 2 at 1131a. See also Benson, supra note 4 at 516, 527.
44. PL, supra note 10 and GL, supra note 3.
45. Benson, supra note 4.
46. PL, supra note 10 at 81–98 and Benson, supra note 4 at 549–55.
47. PL, supra note 10 at 80–92.
48. Ibid, at 129 and Benson, supra note 4 at 564.
49. Benson, supra note 4 at 543, 584–89.
50. PL, supra note 10 at 82. See also G.W.F. Hegel, Elements of the Philosophy of Right, trans. T.M. Knox (London: Oxford University Press, 1996) at 38 where Hegel commands “do not infringe personality and what personality entails.”
51. PL, supra note 10 at 63.
52. Hegel, supra note 50 at 57–59 and Benson, supra note 4 at 591–95.
53. Benson, supra note 4 at 545.
54. Ibid, at 545.
55. Nozick, supra note 32 at 151–53 reaches similar conclusions.
56. PL, supra note 10 at 77.
57. S. L. Heyman, “Aristotle on Political Justice” (1992) 77 Iowa L. R. 851 at 863.
58. Ibid, at 863 and The Politics, supra note 6 at 1184a 11–20.
59. The assertion pertaining to Kant from PL, supra note 10 at 83 and the one pertaining to Hegel from Benson, supra note 4. Furthermore, when Aristotle attacked Plato’s abolition of private property his criticism was based on “the goods [the citizens] will be deprived of” rather than on the inability of free beings to embody themselves, from Stone, supra note 15 at 266 fn. 83, which quotes from The Politics, supra note 6 at 1263b22.
60. For a similar view see Perry, supra note 3 at 454.
61. Marc-Wogau, supra note 10 at 31.
62. NE, supra note 2 at 1132b24–26.
63. Ibid. at 1131a4–5.
64. Ibid. at 1133a5–15.
65. Ibid, at 1132b30–1133al.
66. See e.g., H. A. Ferchner, Über den Gerechtigkeitsbegriff des Aristoteles and K. Hilderbrand, Geschichte und System der Rechts und Staatsphilosophie, which are mentioned in Marc-Wogau, supra note 10 at 32.
67. Benson, supra note 4 at 547.
68. NE, supra note 2 at 1133a27-l 133b20.
69. T. Aquinas, Summa Thelogica, trans. Dominican Province (New York: Benziger Brothers, 1947) at 11–11 Q. 77 Art. 1.
70. See e.g., A. Trendelenburg, Historische Beitrage zur Philosophie, who is mentioned in Marc-Wogau, supra note 10 at 33.
71. Marc-Wogau, supra note 10 at 34–36.
72. See discussion of Kant and Hegel in Section III above.
73. GL, supra note 3 at 277. See also G. P. Fletcher, “Corrective Justice for Moderns” (1993) 106 Harv. L. R. 1658 at 1668.
74. NE, supra note 2 at 1132a7–10.
75. Ibid. at 1132a21.
76. Ibid. at 1132a25–31.
77. Ibid. at 1132a25, translator’s additions removed.
78. PL, supra note 10 at 63, 65.
79. NE, supra note 2 at 1132a7–15. See also GL, supra note 3 at 278 and supra note 15 at 254–55.
80. Perry, supra note 3 at 457.
81. GL, supra note 3 at 278.
82. Paragraph and examples adapted from J. L. Coleman, “Corrective Justice and Wrongful Gain” (1982) 11 J. Legal. Studies 421 at 422. For similar ideas see J. L. Coleman, “The Mixed Conception of Corrective Justice” (1992) 77 Iowa L. R. 427.
83. Situations adapted from R. Posner, “The Concept of Corrective Justice in Recent Theories of Tort Law” (1981) 10 J. Legal. Studies 187 at 204 and J. Brunet, The Ethics of Aristotle (London: Methuen & Co., 1904) at n221.
84. See NE, supra note 2 at 1132a8–15.
85. Brunet, supra note 83.
86. J. Swan, “Address on Damages” (Address to McGill Faculty of Law, 7 April 1997) [unpublished, on file with author]. This manner of justification could be interpreted as directly examining the independent merit of the parties in the transaction. Considered in this way, Swans’ approach would be in breach of Aristotle’s dictum that in corrective justice the independent nature of the parties does not matter. See NE, supra note 2 at 1132al-10.
87. See e.g., C. Fried, Contract as Promise (Cambridge, MA: Harvard University Press, 1981).
88. See e.g., I. Kant, Metaphysics of Morals, trans. Mary Gregor (Cambridge: Cambridge University Press, 1991) and Hegel, supra note 50 at 57–61.
89. This is generally the view of the common law. See e.g., P. Benson, “Abstract Right and the Possibility of a Nondistributive Conception of Contract: Hegel and Contemporary Contract Theory” (1989) 10 Cardozo L. R. 1077.
90. See e.g., Perry, supra note 3 and J. Stick, “Formalism as the Method of Maximally Coherent Classification” (1992) 77 Iowa L. R. 773 at 799–800. Professor Stick goes on to argue that the whole method of dividing the law into corrective and distributive justice is entirely too simplistic. He argues that in many fundamental ways even the concept of property cannot be understood in purely bi-polar ways. He argues that even Kant recognized the necessity of civil society and a constitution to fully understand and protect property. Similarly, he criticizes the notion of distributive justice as encompassing all of public law. He challenges the reader to explain in a rational manner how securities law, environmental law or the separation of powers can be explained completely under the rubric of distributive justice. See also A. L. Allen & M. H. Morales, “Hobbes, Formalism and Corrective Justice” (1992) 77 Iowa L. R. 713 at 720–31 who argue that Hobbes’ theory of justice which groups the categories into commutative justice (keeping one’s promises and respecting property) and distributive justice (the sovereign’s commands and distribution according to merit) is perhaps a superior way to analytically divide the problems of justice. See T. Hobbes, Leviathan or Matter, Forme, and Power of Commonwealth Ecclesiastical and Civil, M. Oakshott, ed., (New York: Collier Macmillan, 1962).
91. Perry, supra note 3 at 462. R. Epstein has also argued for this type of solution. See e.g., R. Epstein, “Defences and Subsequent Pleas in a System of Strict Liability” (1974) 3 J. Legal Stud, and R. Epstein, “Intentional Harms” (1975) 4 J. Legal Stud. 391.
92. This localized distributive justice is also based on an attack of Weinrib and the natural right philosophers. The argument is that the theory of Hegel or Kant explain why there are duties and rights and why it is that there is punishment for these wrongs, but the theories do not explain why the type of reparation has to be money and not merely an apology or imprisonment that acts equally well upon the will. See Perry, supra note 3 at 480.
93. Through the reference to fault I do not mean to suggest that an objective inquiry into if one party failed to meet the requisite duty standard and thereby infringed the rights of another would be prohibited by corrective justice because it will not. Of course an inquiry of this type could include situations of contributory negligence where party X has violated the rights of Y and party Y has distinctly violated the rights of X. In these types of situations damage awards for the two independent wrongs will be off-set or discounted and will resemble an award of damages under localized distribution scheme, but in outcome only. In substance, this corrective inquiry is distinctly different from one based on localized distributive justice which would ask, in one step, how the loss should be distributed as between X and Y. This distributive type of inquiry based on fault would be barred by a purely corrective system.
94. Ibid, at 461.
95. Ibid. at 471. Professor Perry tries to get around this by a notion of outcome responsibility but it is not altogether clear if his solution is satisfactory.
96. PL, supra note 10 at 73.
97. This paragraph is summarized from Wright, supra note 33 at 705.
98. Ibid, at 457.
99. Ibid, at 694.
100. NE, supra note 2 at 1132bl 1.
101. This paragraph is summarized from GL, supra note 3 at 282–83.
102. This paragraph is summarized from ibid, at 283.
103. Ibid, at 285.
104. Supra note 15 at 255 commenting on NE, supra note 2 at 1130b30-l 131a7.
105. GL, supra note 3 at 283.
106. Ibid, at 286–87.
107. Ibid, at 287.
108. NE, supra note 2 at 1132a10–14. [italics added]
109. See surrounding text at note 81.
110. NE, supra note 2 at 11312al-10.
111. GL, supra note 3 at 287.
112. Stone, supra note 15 at 254 and H. Kelsen, What is Justice? (Berkeley: University of California Press, 1960) at 117–36.1 use the word “essentially” because the form of corrective justice would still impose minimal requirements such as normative link between plaintiff and defendant. See PL, supra note 10 at 72–74.
113. Stone, supra note 15 at 254.
114. Kelsen, supra note 112 and Stone, supra note 15 at 254.
115. Stone, supra note 15 at 256.
116. NE, supra note 2 at 1098a14–19, 1095a14–23 and supra note 33 at 684. Professor Wright claims that Aristotle’s philosophy would also deny utility or efficiency based conceptions of distributive as well as corrective justice. See Wright, supra note 33 at 702.
117. NE, supra note 2 at 1095M4–22. See also the general theme of The Politics, supra note 6.
118. The Politics, supra note 6 at 1253a3–18.
119. F. Engels, ed., K. Marx, Capital (Chicago: Encyclopaedia Britannica, 1955) at 25. This same analysis has been used by Marx and Benson (supra note 4 at 548) to explain why Aristotle fails to come to an adequate description of value in the Nicomachean Ethics and fails to integrate equality in exchange under corrective justice.
