What is Tort Law For? Part 1. The Place of Corrective Justice

Law and Philosophy

Volumn 30, Issue 1, 2011, Pages 1-50

  Gardner, John ^a  

^a UNIVERSITY OF OXFORD   (United Kingdom)

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EID: 78649909352     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.1007/s10982-010-9086-6     Document Type: Article

References (100)

1. The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995), p.4.
2. The Practice of Principle (Oxford: Oxford University Press, 2001), p. 3.
3. See my 'Justifications and Reasons', in Gardner, Offences and Defences (Oxford: Oxford University Press, 2007).
4. Strictly speaking, justification is but one type of rational explanation. The other type is excuse. Rational explanation is in turn but one type of teleological explanation. Non-rational but teleological explanations include the explanation of plant behaviour as phototropic. Plants are goaloriented creatures with no rationality, and hence the goals of which are not open to rational scrutiny. Teleological explanations are in turn a sub-class of causal explanations, using 'causal' in its broad Aristotelian sense. Often, however, 'causal' is used in a narrow sense to refer only to those broadly causal explanations that are non-teleological. Causal explanations in this narrow sense do not cite a goal to be achieved in the future but an explanatory factor in the past. Many errors in many fields of inquiry come of (a) recasting rational explanations as causal in the narrow sense or (b) treating 'functional' explanation as a tertium quid between rational explanation and causal explanation in the narrow sense, when there is no such tertium quid.
5. See John Gardner, 'The Purity and Priority of Private Law', University of Toronto Law Journal 46 (1996), 459-464.
6. Coleman, The Practice of Principle, above footnote 2, pp. 5-6.
7. 'Efficiency, Utility, and Wealth Maximisation', in Coleman, Markets, Morals and the Law (Cambridge: Cambridge University Press, 1988), 95 at 359, no. 64.
8. The Practice of Principle, above footnote 2, p. 5.
9. Ibid, p. 34.
10. The Idea of Private Law, above footnote 1, p. 212.
11. Ibid, chap. 8 (and passim).
12. Coleman too dubs them 'functionalists', meaning roughly the same by that as Weinrib does: The Practice of Principle, above footnote 2, 13ff.
13. See his 'Prolegomenon to the Principles of Punishment', in Hart, Punishment and Responsibility (Oxford: Clarendon Press, 1968).
14. This is the thesis that Anthony Quinton was groping towards in 'On Punishment', Analysis 14 (1954), 512.
15. I am grateful to Les Green for helping me to see how my earlier (more unreservedly Humean) understanding of the domain of justice was too narrow in this respect. Green discusses the issue in his so-far unpublished paper 'The Germ of Justice'.
16. 'Prolegomenon to the Principles of Punishment', above footnote 12, at 21.
17. For elaboration of these points see my critical introduction to the second edition of Hart's Punishment and Responsibility (Oxford: Clarendon Press, 2008), at xxiv-vi.
18. Where the possible answers include 'all of it' and 'none of it'. I spell this out to avoid a misunderstanding that arose in conversation with Ben Zipursky. Ben thought that, if Jones is convicted and punished for Smith's crime, this is not, on my account, an injustice. Why? Because there is no question of how much punishment Jones, as opposed to Smith, should get. But I say there is such a question. There must be such a question because there is an answer: Jones should get is none of it whereas Smith should get all of it. Jones' punishment, in other words, was misallocated to Smith.
19. EN 1130b30ff.
20. This is Rawls' point in A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), pp. 314-315.
21. Some, taking the point for granted, try to preserve the Aristotelian dichotomy by assimilating retributive justice to corrective justice instead. See e.g. J.P. Day, 'Retributive Punishment', Mind 87 (1978), 498.
22. I replied with a qualified 'yes' in 'The Virtue of Justice and the Character of Law', Current Legal Problems 53 (2000), 1.
23. EN 1131b12-15.
24. EN 1132a1-6.
25. Cf. Wojciech Sadurski, 'Social Justice and Legal Justice', Law and Philosophy 3 (1984), 329.
26. Sadurski argues (at 334ff) that corrective justice collapses into distributive justice. His argument proceeds mainly by reading 'distributive' broadly to mean 'allocative', and hence to include all of justice. (He also errs by stretching corrective justice in the characteristic Thomist way so that it becomes unrecognizable as corrective: see footnote 28 below.).
27. Stephen Perry, 'The Mixed Conception of Corrective Justice', Harvard Journal of Law and Public Policy 15 (1992), 917-919
28. Coleman, Risks and Wrongs (Cambridge: Cambridge University Press, 1992), pp. 310-311 and 318.
29. Departing from the usage of most moral philosophers, Coleman labels this the agent-relative/agentneutral distinction, inviting confusion between (b) and (a).
30. It is best pursued by thinking first about the role of liability insurance in private law. How can my duties of corrective justice be performed on my behalf by my insurer? Armed with an answer to the question we can begin to see how my duties of corrective justice could also, in default of performance by me or my insurer, be performed on my behalf by my bank or my employer or a bailiff etc., acting with the law's authorization.
31. I have had an initial stab at thinking about what it means to act on behalf of someone in my 'Some Types of Law', in Douglas Edlin (ed.), Common Law Theory (Cambridge: Cambridge University Press, 2007).
32. The most sustained defence of this view is by G.A. Cohen. For a good start,
33. see his 'If You're an Egalitarian, How Come You're So Rich?', Journal of Ethics 4 (2000), 1, especially the critique of Dworkin at 17-19.
34. Anarchy, State, and Utopia (New York: Basic Books, 1974), pp. 153-155.
35. The Idea of Private Law, above footnote 9, e.g. at 64-65.
36. See similarly John Finnis's Thomistic reconstruction of corrective justice as 'commutative justice', in Natural Law and Natural Rights (Oxford: Clarendon Press, 1981).
37. Anarchy, State, and Utopia, above footnote 27, pp. 230-231.
38. I will be discussing whether this should be ruled out in a companion essay entitled 'What is Tort Law For? Part 2: The Place of Distributive Justice'.
39. Cf Matthew Kramer, 'Justice as Constancy', Law and Philosophy 16 (1997), 561 who denies (e.g. at 569) that unjust acts are analytically objectionable.
40. ] I say 'occasion' rather than 'cause' to accommodate the huge late-twentieth century extension of personal (as opposed to vicarious) tort liability that was heralded by Dorset Yacht Co. v. Home Office 1970] AC 1004. I tend to think this was a wrong turning in the law - that Dorset Yacht should have been treated as a vicarious liability case - but the argument is irrelevant here.
41. The Practice of Principle, above footnote 2, p. 21.
42. 'The Concept of Corrective Justice in Recent Theories of Tort Law', Journal of Legal Studies 10 (1981), 187.
43. Ibid, p. 206.
44. The Idea of Private Law, above footnote 1, p. 110.
45. The Practice of Principle, above footnote 2, p. 54.
46. Tort law could be an expression of some attitude or ideology, which would give it an external end that it serves non-instrumentally.
47. See Gardner, 'The Purity and Priority of Private Law', above footnote 4, at 459-460.
48. On the two types of self-defeatingness, see Derek Parfit, Reasons and Persons (Oxford: Clarendon Press, 1984), chaps. 1-4.
49. Bob Goodin mistakenly assimilates the law of torts to this model when he writes that, in tort law, 'compensation serves to right what would otherwise count as wrongful injuries'
50. Robert E. Goodin, 'Theories of Compensation', Oxford Journal of Legal Studies 9 (1989), 56 (emphasis added).
51. Coleman denies this, dividing the 'restitutionary justice' of unjust enrichment from the truly corrective justice of tort law: Risks and Wrongs, above footnote 24, at 371.
52. Weinrib, by contract, joins me in regarding both tort law and the law of unjust enrichment as sites for the doing of corrective justice: The Idea of Private Law, above footnote 1, pp. 140-141.
53. The words are H.L.A. Hart's, from 'Commands and Authoritative Legal Reasons', in his Essays on Bentham (Oxford: Clarendon Press, 1982), p. 254.
54. The Idea of Private Law, above footnote 9, p. 76.
55. Again Coleman contents himself with a more modest proposal, viz. that corrective justice 'imposes constraints on what [the torts themselves] can be': The Practice of Principle, above footnote 2, p. 34.
56. Coleman's proposal is sound but does not help to answer the objection currently under consideration.
57. For searching discussion, see Hanoch Sheinman, 'The First Virtue of the Law Courts and the First Virtue of the Law', Legal Theory 13 (2007), 101.
58. The 'chilling effect' is most often mentioned in connection with the inhibition of free speech, e.g. by the tort of libel. But the problem is a broader one that afflicts tort law in general, and tort law in particular. For analysis,
59. see Frederick Schauer, 'Fear, Risk and the First Amendment: Unraveling the "Chilling Effect"', Boston University Law Review 58 (1978), 685.
60. In 'Backwards and Forwards with Tort Law', in Michael O'Rourke and Joseph Keim-Campbell (eds.), Law and Social Justice (Cambridge, MA: MIT Press, 2005).
61. This is the special feature of morality, or at any rate of the morality of justice, championed by G.A. Cohen in his Rescuing Justice and Equality (Cambridge, MA: Harvard University Press, 2008), part II.
62. 'The Obligation of Reparation', in MacCormick, Legal Right and Social Democracy (Oxford: Clarendon Press, 1982), p. 212.
63. MacCormick is unfortunately distracted by special features of the example - particularly that the breaking of the promise was justified - and is drawn to conclusions somewhat at odds with mine.
64. e.g. Photo Production Ltd v Securicor Transport Ltd 1980] AC 827 per Lord Diplock at 850. On a more sceptical note, at least in respect of torts, Peter Birks,
65. 'Definition and Division: A Meditation on Institutes 3.13', in Birks (ed.), The Classification of Obligations (Oxford: Oxford University Press, 1997).
66. This should not be read as a denial of the existence of so-called 'imperfect obligations', here meaning those which leave the obligation-holder with discretion as to the mode of performance. These too are individuated according to the action that they make obligatory. I have an obligation to meet the children out of school. Shall I go by bus or by bicycle? Either way it is the action of meeting the children out of school that is obligatory. The example helps us to see that all obligations are (more or less) imperfect in the relevant sense. I have an obligation to lock the door at 7 p.m. precisely. Shall I do it with my left hand or my right hand? Quickly or slowly? While humming La Marseillaise or not? For a fuller argument,
67. see George Rainbolt, 'Perfect and Imperfect Obligations', Philosophical Studies 98 (2000), 233.
68. So substantial performance is only possible, in the common law of contract, when a contract is 'severable': Hoenig v Isaacs [1952] 2 All ER 176.
69. I endorse Joseph Raz's view according to which the fact that one has an obligation to/is a protected reason to /, meaning a reason to/that is also a reason not to act for at least some reasons not to /. Raz, 'Promises and Obligations', in P.M.S. Hacker and J. Raz (eds.), Law, Morality, and Society (Oxford: Oxford University Press, 1977). (The fact that I have an obligation to/is also a categorical reason to/but that feature affects its scope, not its force.).
70. One important formalization of the difference - he presents it as a difference between reasons and requirements - is that of John Broome in 'Normative Requirements' Ratio 12 (1999), 398. Unfortunately his formalization leads him to the conclusion that being required does not entail having a reason.
71. I include this caveat because (I tend to think) it is derivatively obligatory to do whatever is both necessary and sufficient to do whatever one already has an obligation to do. To rule out an obligation derived in this way, I am ruling the sufficient acts in the example to be unnecessary. For the problem, if not the solution,
72. see A.J. Kenny, 'Practical Inference', Analysis 26 (1966), 65.
73. I should perhaps say 'an operative reason for action' because it may still serve in the minor or auxiliary premises of a practical syllogism. It may also, of course, serve as a presupposition of another operative reason for action. For example, that I breached an obligation (an operative reason for action after my breach) presupposes that I had an obligation. In such a case I might report just part of the nowoperative reason by saying 'But I had an obligation!'.
74. My earlier interpretation of the continuity thesis, in previous drafts of this paper and elsewhere, was much improved by reading Joseph Raz, 'Personal Practical Conflicts', in Peter Baumann and Monika Betzler (eds.), Practical Conflicts: New Philosophical Essays (Cambridge: Cambridge University Press, 2004), p. 172 at pp. 189-193, and also by reading unpublished work by Matthew Henken.
75. In other words, breach-plus-correction cannot be the rational equivalent of performance. Here we bid farewell to the 'efficient breach' fallacy made popular by O.W. Holmes in The Common Law (Boston: Little Brown, and Co., 1881), pp. 300-301.
76. Yet we also cast doubt on anti-Holmesian attempts, e.g. in Ruxley Electronics and Construction Ltd v Forsyth [1996] AC 344, to fill the gap between breach-pluscorrection and performance with an extra measure of damages to reflect the so-called 'performance interest'. The gap cannot be filled.
77. I am not suggesting, of course, that there are no practical consequences of having such emotions. There can be reasons to express such emotions to others, e.g. by confessing or apologizing. Such expression should not be mistaken for further correction according to the continuity thesis. See further Raz, 'Personal Practical Conflicts', above footnote 56 at 189-190.) The case for expressing an emotion depends on whether one has that emotion to express, or at least a case to feign it. Not so the case for correction under the continuity thesis. Some quasi-reparative acts (e.g. sending flowers) are best understood as ways of apologizing, and hence depend for their success on the having or feigning of a suitable emotion. There is little use in the law's getting involved here as it cannot do the having or feigning on the wrongdoer's behalf.
78. I have criticized this view at length in 'The Logic of Excuses and the Rationality of Emotions', Journal of Value Inquiry 43 (2009), 315.
79. A view of the significance of rational remainders similar to mine, and to which I owe a great deal, is that of Bernard Williams. See, for example, his 'Politics and Moral Character' in Williams, Moral Luck (Cambridge: Cambridge University Press, 2004, 1981).
80. For a defence free of utilitarian trappings, see Rudiger Bittner, 'Is It Reasonable to Regret Things One Did?', Journal of Philosophy 89 (1992), 262.
81. See Barbara Herman, 'Obligation and Performance' in her The Practice of Moral Judgment (Cambridge, MA: MIT Press, 1993).
82. This challenge can also be addressed to Weinrib, who distinguishes the plaintiff's 'factual loss' from his or her 'normative loss': The Idea of Private Law, above footnote 1, 115ff.
83. The response that follows seems, however, to be unavailable to Weinrib (he seems to deny the factual loss both a constitutive and a justificatory role in relation to the normative loss). I am not clear what his alternative response to the challenge is.
84. I defended this possibility in 'Outcomes and Obligations in the Law of Torts', in Peter Cane and John Gardner (eds.), Relating to Responsibility: Essays for Tony Honoré on his Eightieth Birthday (Oxford: Hart Publishing, 2001)
85. And further in 'The Wrongdoing that Gets Results', Philosophical Perspectives 18 (2004), 53.
86. Where the common law tort of breach of statutory duty is concerned, the consequences to be protected against are determined, not by the purpose of the tort's existence, but by the purpose of the particular statutory duty, a.k.a. the 'mischief of the statute': Gorris v. Scott [1874] 9 LR (Exch) 125.
87. I argued for this equation in 'The Mysterious Case of the Reasonable Person', University of Toronto Law Journal 51 (2001), 373.
88. The Right and the Good (Oxford: Oxford University Press, 1930), p. 45.
89. This is the lesson of Vincent v. Lake Erie Transportation Co. 109 Minn. 456, 124 N.W. 221 (1910), interpreted as a trespass case, which in my view is what it is. There are those who interpret it as an unjust enrichment case in order to resist its lesson. For a good catalogue of possible interpretations (siding, ultimately, with the same one as me)
90. see Arthur Ripstein, 'Tort Law in a Liberal State', Journal of Tort Law 1 (2007), issue 2, article 3, downloadable at http://www.bepress.com/jtl/vol1/iss2/art3.
91. MacCormick, 'The Obligation of Reparation', above footnote 48, at 213.
92. Weinrib, The Idea of Private Law, above footnote 1, p. 76.
93. On the significance of the parenthetical words, see Joseph Raz, 'Rights and Individual Well-being', in his Ethics in the Public Domain (Oxford: Oxford University Press, 1994).
94. See e.g. John Finnis, Natural Law and Natural Rights, above footnote 28, p. 232;
95. Nicholas Wollerstorff, Justice: Rights and Wrongs (Princeton: Princeton University Press, 2008), p. 10.
96. For a defence of this view, see my 'The Virtue of Charity and its Foils', in Charles Mitchell and Sue Moody (eds.), Foundations of Charity (Oxford: Hart Publishing, 2000).
97. Compare Finnis, Natural Law and Natural Rights, above footnote 28, pp. 163-164, discussing the torture example and placing it under the 'justice' heading.
98. For full articulation of this doubt, see John Goldberg, 'Two Conceptions of Tort Damages: Fair v. Full Compensation', DePaul Law Review 55 (2006), 435.
99. The Idea of Private Law, above footnote 9, p. 135.
100. Similarly, Arthur Ripstein, 'As If It Had Never Happened', William and Mary Law Review 48 (2007), 1957-1979: '[t]he normative situation is unchanged' by the wrong.