If corrective justice describes private law, does it also justify it? Steve Hedley, University College Cork, for Moral Values and Private Law III, King’s College London, June 2014

Abstract: How does corrective justice leap from its account of private law, to a justification of that law – if it does? Differently put: Assuming (arguendo) that private law is, for the most part, adequately described as an example of corrective justice, does it follow that we should seek to make that law conform better with that conception? Why, indeed, oppose that law’s abolition (as by establishing a New Zealand-style compensation fund, or otherwise broadening social insurance)? Many do not make this leap: their corrective justice theories are defiantly descriptive, viscerally (if mutely) agnostic whether private law in its current form deserves to survive. Others try to find a path from their description of the law to a normative argument in its favour – yet their rejection of ‘politics’, and any arbitrary purpose for private law, ensures that those paths are tortuous. Those paths are the topic of this paper.

Private Law Theory as the search for meaning (?)

I arrived at this topic as part of a very general enquiry, into the theories and justifications put forward to explain modern private law. Modern private law theory is of course a diverse and confused landscape, where each participant tries to escape from the trackless technicalities of the law by infusing some kind of meaning: perhaps some generalisation that makes sense of a raft of detailed regulations, perhaps some value that the law seems to support, or should support. And so they each peddle their ‘explanation’ or ‘justification’ of the law, or even describe its ‘foundations’, against a clamour of competing assertions.

In a sense, this is all Jeremy Bentham’s fault – or at least he should be counted as one of the leading co-conspirators who have led us to this. By planting the idea that the law should in principle be clear, that apparent complications are almost certainly just obfuscation, and that the law’s proper rationale was not to be found in the law books but outside them, he did the most to kill the idea of mystery in law1. Hardly anyone today believes that, despite its surface impenetrability, law conceals hidden pools of meaning and significance within its caverns: notions of that sort are lucky to survive the first semester at law school. Law’s technicalities are just that, technicalities – a sense of what they mean and when/whether they matter must come from elsewhere. As it is, we are caught in the positivist trap, whereby law can be, and for the most part is, expounded without any sense of what it is for, or whether it is ultimately of any value. We may eventually get around to asking whether the law we have so carefully described is a good law, but it is usually very late in the day before we do so. As Max Weber noted, ideas that entered the legal system as taken-for-granted value-judgments, lightly assumed and as lightly cast aside, have been transformed into an iron cage of hard legal rules,

1 HLA Hart, ‘Bentham and the demystification of the law’ (1973) 36 Modern Law Review 2.

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from which no easy escape is apparent2. And the neat, almost obvious, distinction between what the law is and what it should be has led inexorably to a neglect of the second at the expense of the first, as our understand of what the law is becomes ever more systematic and ‘scientific’, while the second leaves us bickering and floundering.

From one point of view, the modern resurgence in private law theory is simply the latest attempt to escape the iron cage, to restore some sense of meaning to a legal world from which positivism seems to have leached much of its colour and significance. We can define ‘private law theory’ as anything that dissuades us from thinking of private law as dry, technical or meaningless, or which denies the relentless message of legal history, that law develops as a succession of pragmatic compromises, each built on the last. But legal academics are by-and-large reactive thinkers, most likely to set out their point of view when it is by way of disputing someone else’s point – proving the other guy wrong is at least as important as saying what is right. So theories of what private law is, or should be, about tend to be laid down in opposition to other theories.

Against that background, it is none too surprising that we see a significant body of opinion insisting that private law is for something – the resolution of disputes to achieve corrective justice – and that this is assumed somehow to contradict other accounts of it. The core question this paper asks is: what next? If private law is (for the most part at least) properly described as an exercise in corrective justice, what implications does this have for how we should act – indeed, does it have any? I suggest that the literature to date has suggested no very obvious implications, and the truth may be that there are none. Private law may be for a very limited range of purposes – perhaps even simply ‘to be private law’, as Ernest Weinrib famously said – but there is no principled reason against putting it to other uses. A book is for reading, but no moral ethical political or legal considerations prevent your using it as a paperweight – the arguments pro and con are mere matters of practicality. Is private law any different? If not, it seems that the apparent ‘conflict’ between corrective justice and law-and-economics may be largely bogus.

Law-and-Economics v. Corrective Justice: what kind of a dispute is this?

How to paint a landscape of modern private law theory? The overall picture has many characters, but for most people while there could in principle be many points of view, many competing explanations of the law, nonetheless one major conflict of opinion predominates.

On the one side, we have those who argue that what explains or justifies private law is its value to the community at large. So it might be supported on utilitarian grounds, or economic, or community interests, or consequentialism of some sort: some variant of the proposition that society as a whole is better off with private law, in something like its current form, than it would be without it. On this view, we assess the system of private law much as we assess any other institution: are we all better off retaining it as it is, or does it require improvement, abolition or replacement?

2 Max Weber, The Protestant Ethic and the Spirit of Capitalism (Talcott Parsons trans, New York: Charles Scribner’s Sons, 1930) 181. Whether ‘iron cage’ is really the most appropriate translation of Weber’s stahlhartes Gehäuse is much disputed – others have suggested ‘shell as hard as steel’ – but the general sentiment is clear and the usage well established.

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The competing school thinks that this misses something. Law is misdescribed if we simply say that it’s good for us, much as effective health care or regularly updated software are good for us. Private law is a very particular way of approaching issues – it identifies the actual parties in dispute (leaving in the background the community from which they come), and it resolves the dispute between them, in accordance with what’s right and just between individuals. There’s not always agreement on what this type of justice – corrective justice – requires (there are as many views this as there are people with time to discuss it), but many contend that it is the right question to be asking.

To some it seems that these views conflict, and you can see this assumption all the time in writing on private law – people ask whether it is justice or the public interest that best explains some feature of the law, whether a particular doctrine is really just, whether efficiency is really the point given how rarely the judges mention it, and so forth. Dig a little deeper and you may begin to suspect the opposite – that there are many enquiries relevant to the law, its merits and its explanation, and that no one set of considerations can simply elbow the others out of the picture. We ask many things of the law, and neither side of the argument has captured them all. Most of us believe that the economy should run smoothly, all things being equal, but we also believe in justice – and while occasionally those two values are going to clash, we don’t really believe this happens very often. On this view, neither school can truly be said to have the upper hand, and indeed we might doubt whether they can truly be said to conflict – if indeed they are really discussing the same topic.

Both approaches have their attractions. But is there a genuine conflict between Corrective Justice and Law-and-Economics? Is there some single question, or set of questions, which they can agree are worth asking, but to which they give different answers? Or is support for one side over the other to be read as a mere assertion of personal values or commitments? To take an analogy, we might imagine an apparently serious dispute over music, with one side arguing (say) that Damon Albarn is a better composer than Wolfgang Amadeus Mozart, the other side arguing the contrary. Such a dispute might, in principle, involve weighty consideration of what constitutes good music, what is the composer’s true role, which musical techniques can properly be employed in music worth listening to, and so forth. But it probably won’t. More likely is that the argument on all sides will be mostly informed by personal preferences, by unvoiced prejudices, by a powerful yet inarticulate feeling that a universe without Damon (or Wolfgang, according to taste) is a sadly deficient universe. What sort of a dispute is the dispute between Corrective Justice and Law-and-Economics? Is it, in fact, a serious dispute at all?

To approach this, I’d like to distinguish between two different aspects of private law theories or possible theories, namely their descriptive aspects and their normative aspects. To what extent are they theories of what the law is, and to what extent do they concern what the law should be?

As a foil, and to cut quickly to the issues in this paper, I can start from Stephen Smith’s classification of private law theories. Smith divides theories about private law into four broad categories: theories are either historical, or prescriptive, or descriptive, or interpretive3. To explain my position, I’d immediately make two modifications to this. Firstly (and as I’ve said elsewhere4), I’d strongly dispute that interpretive theories constitute a distinct category for this purpose. All of these theories are

3 S Smith, Contract Theory (Oxford: Oxford University Press, 2004) 4-6. 4 S Hedley, ‘The Shock of the Old: Interpretivism in obligations’, in C Rickett and R Grantham (eds), Structure and Justification in Private Law (Oxford: Hart Publishing, 2008) 205.

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attempts to paint a convincing picture, to provide the best interpretation of their different subject-matters, and so they are all to an extent interpretive. What is interesting for current purposes is that, having decided that interpretive theories are to be the focus of his account, Smith then goes on to observe that we cannot take those theories much further without distinguishing two important matters they address: the question of what these theories stipulate about the law (which he calls the ‘analytic’ question) and the question of why they stipulate it (the ‘normative’ question)5. In other words, the same issue posed at the highest level of classification re-appears at the next level too: is the theory descriptive/historical, or is it prescriptive? This is part of the case that persuades me that it is better to ask simply whether theories are primarily descriptive (‘What?’), or whether they are primarily normative (‘Why?’).

The next point is that while pure types do exist, the theories most often pressed on modern readers seem to have both normative and descriptive concerns. It is easiest to conceive of the pure types where the subject-matter does not touch us emotionally. It’s certainly possible to write a purely descriptive account of a legal matter in which the writer does not feel s/he has a stake: perhaps because the issue is far away, or deep in the past, or apparently trivial. But the closer to home we come, the harder this gets. Where we are writing about matters precisely because they are important – as where we are seeking the purpose and justification of laws to which we have already devoted the bulk of our working lives – it is well-nigh impossible to distance ourselves from normative concerns. Honest theorists seek not to purge themselves of their normative views but rather to make them manifest, so that their readers can make whatever discount seems appropriate.

That being so, it seems more appropriate not to label individual theories as either ‘descriptive’ or ‘normative’ – the more interesting ones will be both – but rather to say that we should ask in relation to each theory both what its normative agenda is, and what its descriptive agenda is. It is possible that one of the enquiries comes up blank – as where a writer proposes a (normatively) desirable scheme for the law, while having no (descriptive) idea of what it currently is. But theories likely to attract significant support will usually turn out to be making both a normative and a descriptive case.

The groundwork having been laid, I now want to make a big generalisation about the actual scholarship in modern private law theory. I must stress that this is a generalisation about the scholarship as it actually is, not as it might potentially be, or as it might have been if legal thinkers were all writing according to a centrally-planned scheme, rather than each writing on whatever topic seems interesting to them. It is this: that when we consider the generality of the scholarship – the topics that people write about most, the areas where they are most at home – the central legal concerns of lawyer-economists are almost entirely normative, whereas the central legal concerns of corrective justice theorists are almost entirely descriptive. The bulk of the scholarship simply does not conflict: the corrective justice theorists are concerned to establish that the law is in fact properly characterised as an exercise in corrective justice (while disclaiming any view of whether this is a desirable state of affairs), whereas the lawyer-economists are concerned to establish whether the current state of the law is desirable in the public interest, perhaps by meeting the criterion of efficiency (while asking no other questions about how to characterise it).

5 Smith, Contract Theory (n 3) 42-52.

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If that is so, then it seems to follow that the two approaches do not, in fact, conflict very much. There is no choice to be made between the two: a demonstration that a particular doctrine is efficient does not of itself suggest that it neglects corrective justice, and conversely a demonstration that it follows corrective justice does not of itself suggest it is inefficient. The lawyer-economists, then, usually take the actual state of the law for granted (indeed, it would be hard to ask their kinds of questions if they could not), and ask whether it meets the standard they have set for it; the corrective justice theorists ask how the law itself can be viewed, and rarely ask whether invoking corrective justice is in any way more normatively desirable than the alternatives. Both theories could be right, and building a strong case for one does nothing to weaken the other.

In each instance, of course, there are those who venture out of the usual territory: corrective justice theorists who want to show that it is positively desirable to see the law as an example of corrective justice, and not simply accurate; and lawyer-economists who maintain that certain areas of law are, in fact, uniformly efficient as a matter of fact. This paper is primarily concerned with the former rather than the latter, but I will talk briefly about law-and-economics as a descriptive theory.

Economics: Efficiency as normative standard?

Law-and-economics is of course a broad church, and lawyer-economists have many concerns. But the general pattern of analysis is clear enough. The principal question that economists ask is whether the law is efficient or maximises wealth – and if this is demonstrably not so, then that is cause for doubting the law’s desirability6. More crudely, where the existing law points one way and economic analysis the other, it is the law that has the problem. How much of a problem, may be a matter of debate, of course. To a fundamentalist Chicagoan, perhaps, a clear finding of inefficiency should seal that law’s fate. To economists of a more liberal persuasion, it is not necessarily that simple: the law’s inefficiency may indicate that its goals are not purely economic, and while it would be the economist’s role to point to how the economic resources in question are being (mis-)used, s/he might still conclude that the law is appropriate even if National GDP is lower as a result. But these variations in view do not affect the basic point, that efficiency is not a description of the law, but rather the standard, or at least one standard, by which its legitimacy is assessed. Descriptive concerns fall by the wayside. It is no criticism of law-and-economics that it cannot explain the law’s focus on individual disputes; the question it asks is not where such features come from, but whether it is wise to allow them to continue7. And the often-repeated criticism of the discipline, that the courts do not speak the language of law-and-economics, misses the point entirely – the lawyer-economists do not care what language the legal system speaks, only whether it is doing the right thing.

This is in a sense a surprising conclusion, as economics is pre-eminently a descriptive decline: it describes human conduct by appealing to economic rationality. But the path from modelling human

6 I am not here speaking of the earliest (‘first generation’) phase of law-and-economics, but of current practice. For the emergence of the approach I here call ‘normative’, but which lawyer-economists themselves might call a problem-solving or ‘neopragmatic’ orientation, see G Minda, Postmodern Legal Movements (New York: New York University Press 1995) ch 5. 7 J Oberdiek, ‘Structure and justification in contractualist tort theory’, in J Oberdiek (ed), Philosophical Foundations of the Law of Torts (Oxford: Oxford University Press, 2014), 103, 105 and 110.

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conduct to modelling human laws has turned out to be a difficult one, as it is rarely obvious which laws an economically rational law-giver would lay down. This is the paradox of mainstream law-and-economics, that it seeks to say what laws should be laid down by a wise legislature to benefit us all, while simultaneously maintaining that legislators (like everyone else) are in fact motivated not by wisdom or a wish to benefit others, but rather by the dictates of economic rationality. So while the lawyer-economists are free with their prescriptions, they often have no great expectation that they will be followed. They are the Cassandras of the law, constantly pointing out where it has fallen into error, in the knowledge that by their own theory it would be surprising if much attention were paid to their warnings.

Is law-and-economics ever descriptive when it comes to law? The most interesting examples are the efforts of certain public-choice theorists in the ’70s and ’80s, who were much impressed by the apparent efficiency of the common law – the more so as only the occasional judge has ever shown any great enthusiasm for, or even knowledge of, economic theory8. They suggested that the common law had an inherent tendency towards economic efficiency, a tendency which has nothing to do with the knowledge or ideology of the participants. It was proposed that inefficiencies in the common law act as an irritant or inflammation, provoking further litigation and further opportunities for judicial pronouncements; sooner or later a court would, by good luck or good judgment, state the law in terms which promote efficiency, whereupon the inflammation will abate and the law will remain in an efficient state9. But while ingenious, this theory has been doubted on theoretical grounds, and there does not seem to be any empirical evidence that this has ever happened; and the claim’s truth or falsehood is at the outer margins of concern for most modern lawyer-economists10.

Corrective justice as description?

By way of contrast, those who advocate corrective justice in private law tend to do so because they think it a good description of the law – that private law is, in fact, properly understood as an institution founded on corrective justice. Courts resolve issues between actual parties, and are quite different from other state agencies intervening to effect some purpose beneficial to the public. The theory of corrective justice is therefore descriptive of the legal system: normative concerns play little part; rarely is there an argument whether the legal system is the better or the worse for making reference to corrective justice, as opposed to any other way of resolving disputes. It is what it is.

Again, of course, we are dealing with another broad church, and as my paper progresses I will be doing my best to extract a normative argument or two from the various writers who can loosely be said to go under the banner of corrective justice. But it is well to stress at the outset quite how odd – or perhaps I mean how distinctive – it is for a leading theory of private law to be no more than descriptive: to claim it paints an accurate picture of the law, but to refuse to say a word in that law’s defence, even though its merits are widely disputed in the political arena. David Enoch has recently

8 For such an exceptional judge see George Bramwell, who served on the bench in various capacities in the middle-to-late C19th. See A Ramasastry, ‘The parameters, progressions, and paradoxes of Baron Bramwell’ (1994) 38 Journal of Legal History 322. Posner himself may count as another example. 9 Most famously PH Rubin, ‘Why is the common law efficient?’ (1977) 6 Journal of Legal Studies 51. 10 For a general review see Francesco Parisi, ‘The efficiency of the common law hypothesis’ in CK Rowley and F Schneider (eds), Encyclopedia of Public Choice (Dordrecht: Kluwer), vol 2, 195.

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emphasised that most supporters of corrective justice are unhappy at mere description – ‘I want more (and I know I’m not alone in this) – we want also a vindication of our current practices’11. This leads him to pose his What’s Missing in New Zealand? challenge, which is this: Suppose the law of negligence (or some other major constituent of modern private law) were abolished in favour of a state compensation fund, as happened some decades ago in New Zealand. The resulting law could no longer be classified as effecting corrective justice, but would the resulting legal system really be deficient? If so, what would be missing? Or if nothing would be missing, of what value is corrective justice? ‘If nothing is missing in New Zealand, corrective justice theory just doesn’t get off the ground.’12 So the question arises whether corrective justice is simply a descriptive theory, or whether it aims higher.

How are such concerns addressed in the literature?

Corrective justice: Defiant descriptivism

It seems best to set the scene by focusing on the arch-descriptivist, who quite openly disclaims any normative argument, while insisting on corrective justice as the only true description of private law. I mean of course Ernest Weinrib, particularly in his classic The Idea of Private Law13. His argument is about nothing but description: that if we have not understood how private law hangs together internally, we have understood nothing; that if we think private law is for upholding the public interest, rather than for resolving the dispute between the parties, we understand nothing; and that if we do not understand it in its own terms, we do not understand it at all. The entire argument is about understanding what the law is, solving the puzzle of intelligibility that private law is otherwise thought to represent.

Weinrib makes no argument at all about the desirability of his solution, only about its descriptive accuracy. The notion that private law, properly understood, might be deemed worthless and fit only for abolition, seems to worry him, but he does not say why: he is not making an argument that private law is good, only about what its true character is. His heart protests at the modern marginalisation of corrective justice, but his head cannot (or, perhaps, will not) argue against it.

I must say it was a bit of shock coming back to this argument, after spending several months on the relatively sophisticated arguments that pass for private law theory today. The false opposition on which The Idea is based fairly screams at the reader. Of course we will never understand private law if we look only to what people think it is for, but equally of course we will never understand it if we ignore those purposes! Weinrib’s insistence that we must choose between ignoring the one or ignoring the other leaves me wondering what his real argument is, especially as (between rants) he quietly admits that he is exaggerating. (For example, he accuses his opponents of ‘denial that law is

11 D Enoch, ‘Tort liability and taking responsibility’ in J Oberdiek (ed), Philosophical Foundations of the Law of Torts (Oxford: Oxford University Press, 2014) 250, n 1.12 Enoch, ‘Taking responsibility’ (n 11) 251. Enoch’s own response to the challenge is that the NZ system does not allow for the perpetrators of wrongful injuries to take responsibility for their conduct. Whether the ordinary workings of the law of negligence, which typically result merely in a payment from insurer to victim, do so either may be a matter for debate. 13 E Weinrib, The Idea of Private Law (Harvard: Harvard University Press, 1995).

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an autonomous body of learning’14, but within a page admits that, actually, ‘of course [they] recognise that law contains its own terms and concepts’15.) The difficulty is not in recognising deliberate exaggeration, or in realising that that Weinrib is committing the fallacy of the excluded middle for rhetorical effect rather than out of ignorance of it. The difficult issue is in guessing what an un-exaggerated statement of the argument would look like. It’s like being confronted by someone who insists that I can’t use my comb as a back-scratcher because ‘that’s not what it’s for!’. His readers are left scratching their collective heads, wondering what the real point being made is, or even if there is one.

But this, of course, is precisely why The Idea is such a good starting point for the current enquiry: the evident disquiet of its author at any departure from corrective justice, coupled with his deliberate refusal to make a (normative) argument that corrective justice is a good or desirable feature for law to display. No-one who reads The Idea could imagine that Weinrib would be happy at a rejection of corrective justice, but we look in vain for any argument that this would be a bad thing. There is no argument that we shouldn’t abolish corrective justice – merely an insistence that we haven’t yet done so, and that would-be abolitionists seeking to jump the gun are simply confusing themselves, and others.

What, according to Weinrib, would be wrong with a rejection of corrective justice as the basis of private law? His answer is that it would be descriptively wrong. He gives a number of reasons, but all are simply variants on ‘that would misunderstand where we are’. So if his view were rejected, and private law were understood by reference to what it is what it can usefully do for us, he says that:

Private law would be misunderstood16, or at least its most characteristic aspects would be misunderstood17.

Quite possibly, this misunderstanding would be so serious that private law will not be understood at all; it would cease to be an ‘internally intelligible phenomenon’18. ‘[O]ne must either accede to the possibility that law can be understood through itself or deny the possibility the law can be understood at all.’19

Private law would become inseparable from public law, and indeed the assumption would be that ‘private law is public law in disguise’20. We would witness the ‘disappearance of private law as a recognizable mode of ordering’21.

Law would become inextricably mixed with politics22. Law would not be taken seriously in its own right in the academy – if its purposes derive

from other disciplines, then ‘the study of law becomes parasitic on the study of the nonlegal disciplines ... that might validate those goals’23. There is also a danger of infinite regress, as

14 Weinrib, The Idea (n 13) 6.15 Weinrib, The Idea (n 13) 7.16 Weinrib, The Idea (n 13) 5.17 Weinrib, The Idea (n 13) 5.18 Weinrib, The Idea (n 13) 2.19 Weinrib, The Idea (n 13) 18.20 Weinrib, The Idea (n 13) 7.21 Weinrib, The Idea (n 13) 9.22 Weinrib, The Idea (n 13) 7.23 Weinrib, The Idea (n 13) 6.

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we would then have to ask whether those other disciplines should themselves be explained in terms of other disciplines – and we may not like the answers24.

Why any of these things should be regarded as bad in themselves is not explained, perhaps because it seems obvious. In fact, they add nothing to Weinrib’s descriptive case. If his description of private law is right, of course it would be bad if it were misunderstood; if his view of law is the really only way in which it can be understood, it would of course be bad if any other view were adopted; and so forth. Accurate description matters. Despite the alarmist rhetoric, then, these dire warnings are really just ways of underlining his descriptive points in green ink – but without pausing to specify what dire consequence would follow from any misunderstanding. Is the concern that law will be absorbed into politics something more than that? Possibly it is: a convincing demonstration that rejection of Weinrib’s view imperils the rule of law would perhaps be something that we should all worry about. But even in Weinrib’s exaggerated account, no clear case of such a threat is made. Indeed, it should take a strong argument to persuade us that merely thinking that the law serves some useful purpose is actually a threat to our political stability, and simply adopting scare-labels (‘functionalism’ or ‘instrumentalism’) for such a thought provide barely the beginnings of such a case.

A normative argument, then, is barely discernible in all of this, and if it exists at all, it seem to be merely ‘misunderstanding is bad, don’t let it happen to you’. This invites, or at least should invite, deeper consideration of the extent to which we understand anything about the way we live now. I myself live in a veritable ocean of poor understanding. I have no idea, for example, how an electron can be both a wave and a particle at the same time – my understanding on this point is weak. But this in no way impedes me from using PCs, phones, GPS or a host of other devices whose operations entirely on that and other physical mysteries. And so with many technologies, both mechanical and social. Perhaps it is the same with law, too. There is much that we do not understand about its nature, but if we understand what it does in the situations where we invoke it, we know enough for most purposes. To paraphrase Max Weber, we moderns are just like our cave-dwelling ancestors in that, for the most part, we have absolutely no idea how our technology works. The most important difference is that for us it is demystified – we simply trust that there is in fact a nuts-and-bolts explanation for its operations, not involving any magical agencies. Understanding is not required25. The question for Weinrib is: If he is right about what private law is, does it really matter that much, and if so, why?

24 Weinrib, The Idea (n 13) 17-18. 25 ‘… When we spend money today I bet that even if there are colleagues of political economy here in the hall, almost every one of them will hold a different answer in readiness to the question: How does it happen that one can buy something for money – sometimes more and sometimes less? The savage knows what he does in order to get his daily food and which institutions serve him in this pursuit. The increasing intellectualization and rationalization do not, therefore, indicate an increased and general knowledge of the conditions under which one lives. It means something else, namely, the knowledge or belief that if one but wished one could learn it at any time. Hence, it means that principally there are no mysterious incalculable forces that come into play, but rather that one can, in principle, master all things by calculation. This means that the world is disenchanted. One need no longer have recourse to magical means in order to master or implore the spirits, as did the savage, for whom such mysterious powers existed. Technical means and calculations perform the service. This above all is what intellectualization means’: Max Weber, ‘Science as a Vocation’ in H Gerth and C Mills, From Max Weber: Essays in Sociology (London: Routledge and Kegan Paul, 1948), 129, 139.

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Similarly uncompromising is Allan Beever, who insists that negligence law is (descriptively) based on corrective justice, and that it is a major error to believe otherwise. But he is not prepared to say a single word in its (normative) defence. Our mistake, he says, is as to the facts of the matter: we have mistaken negligence law for a Swiss Army Knife when it is in fact another, much less versatile tool 26. Indeed, Beever’s Rediscovering the Law of Negligence illustrates this neatly, being devoted entirely to the descriptive claim, noting the normative issue only in the book’s final paragraph – only to dismiss it as raising other issues entirely, not his current concern. ‘Of course, it may turn out that, even correctly understood, the law of negligence is undesirable … The law of negligence has a structure, and it is our primary role as academics to discover what that structure is. That is the first, though by no means the only, task of legal analysis’27. Clearly, he regards the normative question as a distraction, much as an astronomer writing about the planet Mars might regard it as a distraction to be asked whether the solar system was the better or the worse for containing it. Beever does not deny that the normative question can be asked, or even that someone should ask it; but he is content to defer, perhaps forever, the point at which he asks it28.

The truth is that we are forever finding new uses for technology, realising that what was made for one purpose has a use for quite a different purpose. Indeed, when that technology is something as multiform as law, each generation finds new uses for it. So even if Weinrib and Beever are right about what private law is and what it is good for, they has not begun to make a case that we should not use it for something else – and, on the whole, they do not claim that they have. Private law’s purpose may very well to be private law29. But what of our own purposes? Is the law here to serve us, or are we here to serve the law?

Corrective justice: Avoiding the normative question

26 Allan Beever, Rediscovering the Law of Negligence (Oxford: Hart Publishing, 2007) 197. 27 Beever, Rediscovering Negligence (n 26) 515, concluding words. 28 See similarly the same author’s ‘Corrective justice and personal responsibility in tort law’ (2008) 28 Oxford Journal of Legal Studies 475, where he similarly insists on the difference between the (descriptive) claim that the law is based on corrective justice and the (normative) clam that is based on personal responsibility. 29 Weinrib, The Idea (n 13) 5.

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Other writers, while equally sure that they cannot reasonably be expected to justify the law’s apparent preference for corrective justice, nonetheless are more forthcoming on the point, suggesting that if we are convinced that the modern law is based on corrective justice, then at least corrective justice can be given the benefit of the doubt when it comes to justification. This is not so much justification, as an attempt to dissuade those who might question its justification. Of course, as Jan Smits recently commented, it is no longer the fashion to claim that ‘the law is given by an authority and, hence, is no more suited to further discussion than God giving the Ten Commandments to Moses, the Oracle at Delphi giving Lycurgus the laws of Sparta, or Napoleon dispensing the Code Civil’30. Nonetheless, three principal arguments are made to suggest that the law is the law, and that we should proceed as if persuaded it has been properly justified, without necessarily detailing any such justification. These arguments are what we might call non-specific normative justifications for corrective justice: they do not justify the law or even hint at what a proper justification would look like, but nonetheless give grounds for supposing that there is such a justification.

The first is that corrective justice, or at least some elements of it, can provide a public basis of justification of the law. Roughly: corrective justice might be so much part of our culture, such a well-known, widely-accepted and uncontroversial feature of it, that it can be regarded as the sort of reason generally acceptable to rational members of the political community. It is not that any law based on corrective justice would necessarily be accepted by all such members – that is too high a standard – but that it is the sort of reason people expect the political system to give, and are content to live under. ‘Being at least latent in the legal culture, these ideas are, in principle, fully accessible to the individuals whom the justification addresses. These ideas constitute (provisionally) fixed starting points for the development of a public justification.’31

This notion of ‘public justification’ has a long history32. It is a (very distant) descendent of the idea of the social contract, which began life as the notion that the state is a legitimate institution because its members have agreed to its rules, but slowly transformed (as actual agreement is in fact impossible to achieve) into the modern ‘conventionalist’ notion, that it is enough that the state is run in a way with which its members might rationally agree. In its modern form it is particularly associated with the writings of John Rawls.33 There is much debate over what ‘public justification’ or ‘public reason’ demands, and as Coleman noted, anyone who claims to discern such a public basis will always be suspected of sneaking in their favourite theory (indeed, he considered this ‘unavoidable’ 34). As to corrective justice, the esoteric nature of its argumentation (in practice clear only to those who are already experts in law and in philosophy) suggest that it is unlikely to pass the test, however formulated. Certainly Peter Benson, who famously suggested the need for such a public basis for private law, did not think that any such basis had yet been identified35. There is much force in the

30 Jan Smits, The Mind and Method of the Legal Academic (Cheltenham: Edward Elgar, 2012) 149-150. 31 P Benson, ‘The idea of a public basis of justification for contract’ (1995) 33 Osgoode Hall Law Journal 273, 305. For a related ‘contractualist’ approach to corrective justice see Oberdiek, ‘Structure and justification’ (n 7).32 For an introduction see K Vallier and F D’Agostino, ‘Public Justification’, Stanford Encyclopedia of Philosophy (first published 1996, edited since) at http://plato.stanford.edu/entries/justification-public/. 33 See especially ‘The Idea of Public Reason’ and ‘The Idea of Public Reason Revisited’ in J Rawls, Political Liberalism (expanded edition, New York: Columbia University Press, 1993), 212 and 440. 34 J Coleman, Risks and Wrongs (Oxford: Oxford University Press, 1992) 9. 35 Benson, ‘Public Basis’ (n 31) especially at 305-311.

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view of Lawrence Solum, that as there is considerable public support for both corrective justice and for efficiency, ‘public justification’ seems unlikely to support either in their pure forms, but at best a shallower theory that incorporates elements of both36.

The second argument, advanced by Jules Coleman, is the argument from liberalism. Coleman’s explanation of private law is mixed: broadly speaking he explains contract law on economic grounds, but does not think that this works for tort, which is based (in part at least) on corrective justice 37. Can the law’s use of corrective justice itself be justified? To him, it is clearly within the range of solutions open to liberal state, under almost any variant on liberal philosophy. ‘The state will be authorized to implement corrective justice over a broad range of liberal political ideologies … Whether the state’s judgments are correct is independent of whether it has the authority to act on the basis of those judgments. If we assume a liberal political theory, then the state will be authorized to enforce duties in corrective justice …’38.

Clearly, someone looking for a ringing endorsement of corrective justice as the justification of (even a part of) private law will not find it in Coleman’s liberalism. The choice of corrective justice as the solution to certain types of legal problems is legitimate, he says, and might have been adopted for good reason (though he does not specify what those reasons might consist of). But there is nothing necessarily missing in New Zealand39. Corrective justice is an objective that the state may legitimately pursue, but it has no absolute priority over other possible goals40. ‘The state has the moral authority, but not the moral duty, to implement corrective justice.’41

The third argument, which has been made at regular intervals throughout the history of the common law but has now been loudly reiterated by Robert Stevens, is that it is for the legislature, and no-one else, to develop the law. It follows that if corrective justice is currently the basis of the law then it should remain so, at least insofar as judicial decision is concerned. It would not be appropriate for judges to take any other approach, and indeed they are unqualified to do so: unqualified both in the political sense (as they cannot speak for anyone but their unelected selves) and in the technical sense (as they may not have the knowledge or the wisdom to make a good judgment on reforming the law)42. ‘If in the common law world we are to persevere with a judiciary selected on the basis of professional competence at interpreting the law, their role must be limited. We should not ask our judges to resolve questions of policy and, if asked, they should decline to provide answers that they have neither the ability nor legitimacy to give.’43 So again, the suggestion is that we should proceed as if we knew that the corrective justice approach is justified, without troubling ourselves as to what the justification is.

This argument exemplifies the positivist trap at its deepest: the belief that an almost unbridgeable chasm lies between what the law is and what it should be, so that one might be an expert in the

36 L Solum, ‘Public Legal Reason’ (2006) 92 Virginia Law Review 1449. 37 Coleman, Risks and Wrongs (n 34) ch 18. 38 Coleman, Risks and Wrongs (n 34) 364.39 Coleman, Risks and Wrongs (n 34) 402. 40 Coleman, Risks and Wrongs (n 34) 392-395.41 Coleman, Risks and Wrongs (n 34) 367.42 R Stevens, Torts and Rights (Oxford: Oxford University Press, 2007) ch 14. Stevens is at best lukewarm in his attitude to corrective justice (see 327-328); however, his rights-based theory has many affinities with corrective justice approaches, and it seems to me that he is fairly included here. 43 Stevens, Torts and Rights (n 42) 311.

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former yet not be entitled to express an opinion on the latter. The gap between the two is defined as an aspect of legal professionalism, presumably on the ground that true legal professionals will simply work within the system as it is, while keeping their view of that system to themselves. This horribly narrow view of legal professionalism – by which the condition of the legal system is, apparently, no concern of the judges who manage it – is complemented by the narrowness of its view of the role of legal academics, by which consideration of the condition of the legal system is a mere optional extra, and that those who write on it should expect that portion of their work to be ignored by their judicial colleagues. One wonders which individuals, on this view, do have any responsibility for the legal system, and how government is expected to develop workable ideas in that regard, if those who are the most knowledgeable on the subject should rightly refuse to discuss it. Stevens almost seems committed to the knee-jerk conservative view that any change to the legal system will invariably be for the worse, and so the most sensible policy is to wash one’s hands of any involvement; or, in the succinct phrase attributed (perhaps maliciously) to Lord Eldon, ‘Reform? Reform? Aren’t things bad enough already?’44.

It is in this connection that Dan Priel has recently made what might seem like a controversial claim, namely that corrective justice and related theories can be linked to the political right 45. Stated in those bald terms the claim is probably too vague to be either wrong or right – of the wide range of political views that could be labelled ‘right wing’, only some resonate with corrective justice, whereas others directly conflict with it. Nonetheless, Priel’s more nuanced claim is worthy of attention: that this normative defence of corrective justice is strikingly similar to classic conservative views such as those of Burke and Oakeshott, particularly in ( i) its insistence that development of the law should come from within it, rather than reflecting external pressures, ( ii) its preference for traditional approaches, whether or not their merits are immediately apparent, ( iii) its hesitation in accepting even apparently beneficial innovations, emphasising the risks they represent, and ( iv) its suspicion of instrumental goals, which so often turn out to be misguided, perhaps because they presume the perfectibility of humankind or other questionable notions46. Once again, the argument that private law is based on corrective justice is quietly transformed into an argument that it should be, not because its proponents can summon up any good reasons in its favour, but because they believe that any conceivable counter-argument would be dangerous and wrong.

So by various means the supporters of corrective justice have suggested that the law not only does but should follow that pattern, but without specifically suggesting any normative argument in its favour. These arguments touch on fundamental questions of legal development. An observation which applies to them all is that they pre-suppose a very strong version of the descriptive theory: not merely that the law can plausibly be described as based on corrective justice, but that corrective justice is the only plausible description. If it is admitted that other descriptions are possible (those other descriptions including, of course, economic descriptions), then the same normative arguments discussed above could equally support development of the law to make it conform to those descriptions, even if this was at the expense of corrective justice. The task of establishing corrective justice as the foundation of the law is therefore more challenging than has hitherto been assumed.

44 Actually, this bon mot, or something rather like it, has been attributed to a variety of C19th conservative worthies. 45 D Priel, ‘Torts, Rights and Right-Wing ideology’ (2011) 19 Torts Law Journal 1. See also the same author’s ‘Private Law: Commutative or Distributive?’ (2014) 77 Modern Law Review 308. 46 Priel, ‘Torts, Rights and Right-Wing ideology’ (n 45) 8-9.

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Yet there are many undercurrents and hints of moral or political significance in legal materials, and while claims that one particular conception dominates it can often be taken seriously, experience tells us to be alert for the selective use of evidence. In the case of corrective justice, the selectivity is evident enough: a preference for individual rights rather than the collective good, for common law rather than statute, for formal legal rules rather than how the legal system actually operates, for making coherent sense of private law rather than making coherent sense of the legal system. The point is not that these biases are wrong but simply that they are biases, and that other descriptions of the law, with other biases, may have just as great a claim to accuracy – unless some normative argument can be made about which bias is better. In other words: there really is no escape from arguing about the normative issue.

That is not to suggest that matters of moral or political theory are the only considerations relevant to the normative question. Practical issues are in reality to the fore: we can hardly make a sensible judgment whether a corrective justice approach is desirable without knowing the alternatives. And, contrary to the view of Beever47, I would insist that aesthetic considerations play a considerable role here also, whether or not they would be important were we discussing a species more rational than the human. But the argument to date has played out in the theoretical arena, and it is there that I go in search of a normative justification of corrective justice.

Corrective justice: Answering the normative question

If it is accepted not only that a normative defence of the corrective justice view is required, but also that the general notions just discussed will not do, how may we proceed? Two general types of approach appear in the literature, which suggest specific reasons why corrective justice is normatively justified.

The argument from injustice suggests that if we have plausibly identified the legal liability in question as the law’s attempt to correct an injustice, then surely we are already well on the way to a normative justification of that law. The label of injustice, if all agree it is properly applied, does at least most of the justificatory work required. Suppose, hypothetically, that May Donoghue suffers gastroenteritis and shock after consuming a soft drink manufactured by David Stevenson. On proof that the product was defective and that this defect can be traced to careless behaviour for which Stevenson is responsible, the court awards damages, corresponding to Donoghue’s pecuniary loss (hospital bills, wages lost during recuperation) and her non-pecuniary loss (pain and suffering). In any contest between the two of them, few would dispute that justice would have been done in such a case. So does not the theory of corrective justice, as well as describing the law, also provide a justification for it: it corrects injustices, which is usually taken to be a good thing?

While deliberately stated here in naïve terms, the argument is a powerful one. Identifying the claimant as the victim of an injustice is a powerful justificatory argument, and the famous ‘general public sentiment of moral wrongdoing for which the offender must pay’,48 with or without pertinent religious references, have often been seen as the basis of the law here. And the argument is the more powerful because, while there is always argument over individual cases, opponents of

47 Beever, Rediscovering Negligence (n 26) 31. 48 M’Alister (or Donoghue) v. Stevenson [1932] AC 562, 580, Ld Atkin.

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corrective justice do not really have a different view on the (corrective) justice of the matter: if the issue is framed as a dispute between Donoghue and Stevenson, the court’s resolution will widely be considered fair.

But the obvious fairness of granting compensation in such a case can only justify the result if the major justificatory decision has already been made: that claims such as Donoghue’s will either have a remedy in tort/delict or no remedy at all. Two aspects of this call for justification.

The first gap in the argument is the need to justify the law’s intervention in any form. Let it be conceded that injustice calls for a remedy. Why, nonetheless, should the law respond to this instance of injustice, when so many others are neglected? The point is made powerfully by John Gardner, who takes a particularly strong view of corrective justice: that in private law it represents a moral duty to make good the loss of a claimant who has been wronged by the defendant’s behaviour. This duty may be stated in robust terms, as deriving from the moral norm which the defendant broke on the way to doing the harm (so that a duty not to harm is transformed into a duty to compensate those harmed49). Nonetheless: why should the law care, given the many equally compelling moral claims that might be made? ‘In deciding whether something should be a tort, then, it is never enough to conclude that it is a wrong calling for repair …The law is selecting some people for a measure of official support in their personal affairs that most other clients of the welfare state can only dream of.’50 This question – that of the ‘distribution of correction’51 – is not one that can be resolved by corrective justice itself, but only by distributive justice; if, possibly, of the ‘localised’ sort that distributes risks as between two particular parties52. The law can only be justified by an argument of that sort; mere repetition that Donoghue is the victim of (corrective) injustice is insufficient.

Secondly, the argument needs to justify the law’s bilateralism. If the law should intervene, how should it do so? Should not Donoghue be left to the mercies of the NHS and Social Services, and Stevenson left to the mercies of the HSE? Why must the law frame this as a dispute between the two of them? After all, Donoghue’s injuries are the same whether or not they can be blamed on Stevenson; and if Stevenson’s work practices pose dangers for those who consume his products, Donoghue’s injuries are probably only one minor facet of the considerations that should inform those who deal with this problem. The initial – and necessary – question is not how we should deal with the issue once it has been framed as one ‘between’ Donoghue and Stevenson, but rather whether we should so frame it at all. Donoghue’s injuries, if serious, call for a societal response whether or not Stevenson is to blame for them; the state of Stevenson’s factory, if it is as mollusc-infested as has been claimed, is a societal menace whether or not it happened to injure Donoghue. Arguments could no doubt be made that framing the matter as a matter of corrective justice is the best solution, or at least part of the best solution, but such arguments would have consider the alternatives. Again, mere repetition that Donoghue is the victim of (corrective) injustice is insufficient.

49 Gardner calls this the ‘continuity thesis’. See J Gardner, ‘What is tort law for? Pt 1: The place of corrective justice’ (2011) 30 Law and Philosophy 1, 28-37. 50 J Gardner, ‘What is tort law for? Pt 2: The place of distributive justice’, in J Oberdiek (ed), Philosophical Foundations of the Law of Torts (Oxford: Oxford University Press, 2014), 335, 340-341.51 Gardner, ‘What is tort law for? Pt 2’ (n 50) 338.52 Gardner, ‘What is tort law for? Pt 2’ (n 50) 346-350.

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A different argument, much relied on by Gordley amongst others, is the argument from the constitution of society53, which draws heavily on Aristotle. If a wise ruler is deciding the basic legal infrastructure of society, s/he must have regard to certain basic realities, particularly that some ways of living are better than others, and that good government should encourage the better ways over the less good. Yet the tools for achieving this are in practice limited, and the same basic techniques turn up again and again, as fundamental legal institutions: in particular, a regime of distributive justice ‘to ensure that each person has the resources he requires’54, and a system of commutative/corrective justice ‘to enable him to obtain them without unfairly diminishing others’ ability to do so’55. Other basic features of private law emerge similarly from elementary rational consideration of how society is to function. Fairness, too, emerges as a basic part of society’s workings. ‘One can no more explain contract, tort or unjust enrichment without regard to commutative justice than one could explain the digestive system without regard to the fact that it digests. Fairness, in the sense of commutative justice, is not a sort of limitation on these bodies of law but belongs to their definition.’56 Corrective/commutative justice is therefore not merely one option for the wise governor, but the only sensible option. Again, the fact that corrective justice implements a vision of fairness becomes part of the (instrumental) reason why it should form part of the law.

Gordley’s account is very broad-brush, and while it is in some respects quite specific nonetheless it allows for considerable variation across legal systems: many legal systems face similar problems, but they do not solve them in the same way, nor should they. The theory has a general common-sensical air, and indeed Gordley asserts that it would be accepted as common sense by ‘anyone who has not been educated out of these positions by modern philosophers’57. (For Gordley, ‘modern philosophers’ seem to start with Descartes.58) He is also entirely happy to mix moral and economic concerns, and does not see his support for commutative/corrective justice as incompatible with allowing the occasional reference to distributive principles in private law. Modern theoretical sophistication he sees as bogus, a stubborn refusal to accept Aristotelian common sense even though, manifestly, there is nothing better on offer59.

It is hard to escape the feeling that while Gordley’s prescriptions make good practical sense for the world he inhabits, the world the rest of us live in is considerably more complicated. The most important feature of modern states for this purpose is not really that they are democracies, though Gordley is right to consider this and its influence on the law60; rather, it is that they are incomparably richer and more technically capable than the states Aristotle described, and that their responsibilities are correspondingly broader. Modern states are welfare states, in which the various misfortunes their members may suffer are not ‘accidents’ but fall into recognisable statistical patterns for which the state is expected to make advance provision; in other words (as it has

53 Particularly as in J Gordley, Foundations of private law – Property, Tort, Contract, Unjust Enrichment (Oxford: Oxford University Press, 2006). 54 Gordley, Foundations (n 53) 8.55 Gordley, Foundations (n 53) 8.56 Gordley, Foundations (n 53) 12. A not entirely dissimilar theory is advanced in Stevens, Torts and Rights (n 42) 330-332. 57 Gordley, Foundations (n 53) 31. 58 Gordley, Foundations (n 53) 14-31. 59 Gordley, Foundations (n 53) 17.60 Gordley, Foundations (n 53) 9.

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famously been put), the societies they govern are risk societies61. They plan, and expect their members to assist in the planning. And whatever may have been the case in earlier centuries, the rules and conditions under which society’s members may litigate are widely accepted as an appropriate tool in that planning; often, indeed, they are the best instrument available. The world Gordley describes is faithful to our past but it is not our present, nor is it likely to be our future.

61 U Beck, Risk Society: Towards a New Modernity (London: Sage Publications, 1992).

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Conclusion

Throughout humanity’s history, social and mechanical technologies have continually been developed and re-purposed. What was originally used for purpose x was found to be useful for purpose y – perhaps more useful, indeed, than it ever was for purpose x. At a number of points, this process has been resisted. No doubt the first cave-painters were roughly informed by their neighbours that caves are for sheltering in, not for creating imaginative visual displays, and that the proper way to see interesting and beautiful things is to come out during the day and look around a bit. But however that argument may have gone, in the long term it is the innovators who won. We are not content with successful technologies: we want to see if they can do even more, regardless of what they are supposedly ‘for’. As a wise person once remarked: When all you have is a hammer, everything starts to look like a nail 62.

So it should occasion no surprise that that long-lasting conflict-resolution technique, private law, has been put to increasingly diverse uses. The mechanism was there, and when fresh issues arose in which it could play a role, the political system had little hesitation in assigning them to it, without feeling the need (as the saying is) to re-invent the wheel. These new purposes may or may not have had much to do with the original purposes that private law was meant to serve. There will always be some who protest that private law isn’t for solving all of society’s problems, but only a very narrow category of them – the ones concerned with corrective justice. And they are right. But at the same time, they have missed the point entirely.

62 Like most pithy C19th Americanisms, this has been attributed to Mark Twain, but its origins are hard to pin down.

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