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Published online by Cambridge University Press: 09 June 2015
There is a view of Aristotle’s conception of corrective justice which has enjoyed some following among tort theorists in recent years, according to which corrective justice is distinct from distributive justice and entirely independent of it. The distinctness of the two is, of course, asserted by Aristotle in a well-known passage in the Nicomachean Ethics, and no one could seriously doubt that he does take the forms of these two kinds of justice to be distinct:
What is just in distributions of common assets will always fit the [geometrical] proportion mentioned above,... On the other hand, what is just in transactions is certainly equal in a way, and what is unjust is unequal; but still it fits numerical proportion, not the [geometrical] proportion of the other species.
1. This corrective justice “school” of thought has included Coleman, Jules (“Moral Theories of Torts: Their Scope and Limits: Part II” (1983) 2 Law & Phil. 5, and other works)CrossRefGoogle Scholar, Fletcher, George (“Fairness and Utility in Tort Theory” (1972) 85 Harv. L. Rev. 537),CrossRefGoogle Scholar Borgo, John (“Causal Paradigms in Tort Law” (1979) 8 J. of Legal Stud. 419),CrossRefGoogle Scholar Sharp, Frederick (“Aristotle, Justice and Enterprise Liability in the Law of Torts” (1976) 34 U. of Tor. L. Rev. 84),Google Scholar Epstein, Richard (“A Theory of Strict Liability” (1973) 2 J. of Legal Stud. 151),CrossRefGoogle Scholar and most recently Strudler, Alan, “Mass Torts And Moral Principles” (1992) 11 Law & Phil. 297.CrossRefGoogle Scholar It is Ernest Weinrib, however, who has most studiously defended the idea that Aristotle regards corrective and distributive justice as independent. See particularly his article, “Aristotle’s Forms of Justice,” in Panagiotou, Spiro ed., Justice, Law and Method in Plato and Aristotle (Edmonton: Academic Printing & Publishing, 1987) 133,Google Scholar and “Legal Formalism: On the Immanent Rationality of Law” (1988) 97 Yale L.J. 949, Sect. IV.
2. Aristotle, , Nicomachean Ethics, Terence Irwin, transl. (Indianapolis, IN: Hackett Publishing, 1985).Google Scholar
3. 3. Weinrib, supra note 1 at 152.
4. “The Critical Legal Studies Movement” (1983) 96 Harv. L. Rev. 561.
5. Economic Analysis of Law, 2nd. ed. (Chicago: University of Chicago Press, 1977).
6. Kairys, D. ed., The Politics of Law (New York: Pantheon, 1982).Google Scholar
7. Richard, Epstein “Nuisance Law: Corrective Justice and Its Utilitarian Constraints” (1979) 8 J. of Legal Stud. 49, and other works.Google Scholar
8. Posner, Richard “Corrective Justice in Recent Theories of Tort Law” (1981) 10 J. of Legal Stud. 187.CrossRefGoogle Scholar
9. Weinrib, supra note 1 at 148.
10. In discussing Aristotle’s notion of corrective justice, Weinrib, writes in “Legal Formalism,” at 977–78,Google Scholar that “Aristotle observed that what we would now call private law has a special structure of its own.” Since Aristotle recognized no category of law corresponding to our private law (rather only the sorts of harms which fall under our criminal code, but which could only be privately prosecuted under Athenian law) it is quite unclear how he could have made any such observation.
11. There is evidence for this in his concern, evident throughout the Politics, that law unite, and not divide, cities, and also in his insistence in Book III.l of the Nicomachean Ethics (NE) that an expression of regret for an unintended harm is a necessary condition for escaping legal responsibility. The best explanation for his linking responsibility and regret in this way is that without the expression of goodwill conveyed by regret, even an unintended harm may incite antagonistic feelings and generate conflict.
12. It is clear through much of the Politics that having these aims is part of what distinguishes a legitimate form of rule or system of law from a corrupt one. See e.g., III.7.
13. It is worth noting that many features of what remains of this code suggest that its fundamental purpose was not to punish or compensate, but to resolve conflict. See Gagarin, Michael Drakon and Early Athenian Homicide Law (New Haven, CN: Yale University Press, 1981) ch. 8.Google Scholar
14. For a view of this sort, see Smith, S.D., “The Critics and the ‘Crisis’: A Reassessment of Current Conceptions of Tort Law” (1987) 72 Cornell L. Rev. 765.Google Scholar
15. (1986) 5 Law & Phil. 393.
16. It was also recognized by Murphy, Jeffrie of course, in “Marxism and Retribution” (1973) 2 Phil. & Publ. Affairs 218,Google Scholar and in the closing section of this paper I will note the points of contact between the Marxist critique, as he presents it, and the radical consequences of an Aristotelian view.
17. See de Romilly, J. La Loi Dans La Pensee Greque (Paris: Society D’Edition “Les Belles Lettres,” 1971) Ch. XI.Google Scholar
18. “Educational” measures should be understood here very broadly, so as to include formal schooling but also a great deal more. Non-educational measures might include a reduction in inequality, in order that compliance with law may be attractive to sufficient numbers of people. Plato and Aristotle both make provisions for this, but neither of them suggests any connection between measures of this sort and the legitimacy of punishment, except perhaps through the idea that legitimate law aims not at the good of one class of citizens, but at the common good of all.
19. The translation here is Bury’s, R.G. (Cambridge, Mass: Harvard University Press, 1984).Google Scholar Generally, in what follows the translations of passages from the Laws are substantially those of Pangle, The Laws of Plato (Chicago: University of Chicago Press, 1988).Google Scholar
20. Rawls’s, description in chapter eight of A Theory of Justice (Cambridge, Mass: Harvard University Press, 1971) at 490–91,Google Scholar of the way in which the development of a sense of justice depends upon personal attachments is probably substantially correct. (See Ryan, R.M. & Stiller, J., “The Social Contexts of Internalization” (1991) 7 Advances in Motivation and Achievement 115.)Google Scholar His view suggests that social virtue is unlikely to emerge or prevail in the absence of a sense of justice, and a sense of justice is not likely to emerge in a child to whom authority figures (i.e., individuals who represent or manifestly adhere to acceptable principles of social life) do not communicate a clear intention to act for the child’s good.
21. I develop this interpretation of the argumentative strategies of the Politics at some length in “Justice, Instruction, and the Good: The Case For Public Education in Aristotle and Plato’s Laws, Part II,” (1993) 12 Stud, in Phil. & Ed. 103.
22. As I have argued in “The Contribution of Nicomachean Ethics iii 5 to Aristotle’s Theory of Responsibility” (1989) 6 Hist.of Phil. Quart. 261, and at greater length in “Education and the Origins of Character in Aristotle,” Buchmann, Margaret & Floden, Robert, eds, Philosophy of Education 1991 (Normal, Illinois: Philosophy of Education Society, 1992) 202.Google Scholar
23. On the general extent of his adoption of this Platonic metaphor and model of legislation, see Jaeger, Werner “Aristotle’s Use of Medicine as Model of Method in His Ethics,” (1957) 77 The J. of Hellenic Stud. 54.CrossRefGoogle Scholar
24. The idea is a common one, but the wording is Pierre Pellegrin’s, in “On the “Platonic” Part of Aristotle’s Politics” delivered at Boston University, Boston, Mass., January 19,1992.
25. “Rational consent,“ as I’m using it here, is thus not ideally rational consent. The notion of “reasonable educative efforts” introduces some indeterminacy into the idea of “rational consent” which I will not be able to resolve here, given the complexity of what might constitute reasonable education.
26. 26. See Duff, R.A. Trials and Punishments (Cambridge: Cambridge University Press, 1986) at 39ff.Google Scholar
27. Not insignificantly, it is this theological problem which gave rise to the myth, which descended from Augustine into the Christian Enlightenment, of a radically and innately “free will.” The point I am concerned to establish here is that if we abandon this myth in favor of Plato and Aristotle’s more plausible pre-Christian view of the efforts required to produce a good and rational will, then we are faced with a problem not only for theology, but for secular human communities as well.
28. See Reiss, A. Jr & Roth, J.A. eds, Understanding and Preventing Violence (Washington, DC: National Academy Press, 1993).Google Scholar Summarizing the findings of a large body of research, Reiss and his coauthors note at p. 367 that “violent offenders tend to have experienced poor parental childrearing methods, poor supervision, and separations from their parents when they were children…. In addition, they tend disproportionately to come from low-income, large-sized families in poor housing in deprived, inner-city, high-crime areas.“
29. Murphy, supra note 16 at 239.
30. Ibid, at 240.
31. See Currie, E. Confronting Crime (New York: Pantheon, 1985).Google Scholar
32. See Reiss, supra note 2 at 5.
33. See Anderson, E. “The Code of The Streets” (1994) 273 The Atlantic Monthly 80–94.Google Scholar Anderson, a prominent sociologist, observes at p. 94 that “For [a significant minority of hard-core street youths] the standards of the street code are the only game in town. The extent to which some children—particularly those who through upbringing have become most alienated and those lacking in strong and conventional social support—experience, feel, and internalize racist rejection and contempt from mainstream society may strongly encourage them to express contempt for the more conventional society in turn. In dealing with this contempt and rejection, some youngsters will consciously invest themselves and their considerable mental resources in what amounts to an oppositional culture to preserve themselves and their self-respect. Once they do, any respect they might be able to garner in the wider system pales in comparison with the respect available in the local system; thus they often lose interest in even attempting to negotiate the mainstream system.”
34. “Children kill boy, 5, for refusing to steal” (1994) October 15 Rochester Democrat & Chronicle 1A.
35. Keeping Track (New Haven, CN: Yale University Press, 1985) at 134.
36. Other factors associated with high crime rates in schools which point to the significance of student-teacher relationships for moral socialization are noted in the California State Office of the Attorney General‘s School Security Handbook (Sacramento, 1981) at 12.
37. Murphy, supra note 16 at 240.
38. Ibid.
39. See Reiss, supra note 2 at 7; 383; 388–91.
40. Ibid, at 7.
41. Ibid, at 385ff.
42. Ibid, at 3–5, and Currie, supra note 31 at ch. 1.