Jurisprudence Project.docx

DR. RAM MANOHAR LOHIA NATIONAL LAW UNIVERSITY, LUCKNOW Session: 2017-18

FINAL DRAFT

CORRECTIVE JUSTICE AND ITS RELATION TO DISTRIBUTIVE JUSTICE

SUBMITTED TO – Dr. MANWENDRA KR. TIWARI ASSISTANT PROFESSOR (LAW)

SUBMITTED BY- VINAY SHEEL ENROLMENT NO.150101161

SECTION- B

BA.LLB. (Hons.) SEMESTER V

ACKNOWLEDGEMENT

I owe a great many thanks to a great many people who helped and supported me during the writing of this project. I would like to express my special thanks and gratitude to my teacher Dr. Manwendra Kumar Tiwari who gave me the golden opportunity to do this project which also helped me in doing a lot of research work and I came to know about a lot of new things. I am really thankful to them. Secondly I would also like to thank my friends who helped me a lot in finishing this project within the limited time. I am making this project not only for marks but also to increase my knowledge. Thanks again to all who helped me.

TABLE OF CONTENTS

1. ACKNOWLEDGMENT 2. TABLE OF CONTENTS 3. INTRODUCTION 4. CORRECTIVE JUSTICE AND ARISTOTLE’S THEORY 5. FROM CORRECTIVE TO REGULATIVE FUNCTION 6. CORRECTIVE JUSTICE AND CONTRAST WITH DISTRIBUTIVE JUSTICE 7. RIGHTS AND DUTIES OF THE PARTIES INVOLVED 8. OUTCOMES OF CORRECTIVER JUSTICE 9. ROLES OF CORRECTIVE JUSTICE 10. CONCLUSION

INTRODUCTION “The dead cannot cry out for the justice, it is the duty of a living to do so for them.” -Lois McMaster Bujold There have been different writers who had proposed different conceptions of corrective and distributive justice. Aristotle and Thomas Aquinas got their own idea of it, Hobbes and Grotius in other while Kant and Hegel in another, but first to understand the concept of corrective justice and its relation with distributive justice first we need to get better knowledge of the idea of corrective and distributive justice. In this essay written by Peter Benson, Aristotle's account of corrective justice is been talked upon which describes the form of the private law relationship. Corrective justice treats the wrong, and the transfer of resources that undoes it, as a single part of activity and passivity where actor and victim are defined in relation to each other. Being concerned with structure not substance, Aristotle presents corrective justice in formal terms, as an equality between the two parties to a two-sided transaction, in contrast to distributive justice, which is a proportion in which each person's share is relative to a distributive criterion. Although formal, Aristotle's account is not empty. It captures the logic of the private law relationship and the categorical difference between private and public law. Because Aristotle omits to tell us what the transactional equality of corrective justice is an equality of, his account must be supplemented by Kant's philosophy of right. The essay is divided into many heads but the way I have discussed the heads of corrective justice is not similar to the one in the essay. CORRECTIVE JUSTICE AND ARISTOTLE’S THEORY The essay analyses the idea of corrective justice as given by Aristotle according to whichCorrective justice is the idea that legal responsibility corrects the injustice caused by one person on another. Aristotle's account presents corrective and distributive justice as two different forms of justice. Corrective justice, which deals with voluntary and involuntary transactions, focuses on whether one party has committed and the other has suffered a transactional injustice. Distributive justice deals with the distribution of whatever is available for all the participants in a political community. For Aristotle, justice in both these forms relates one person to another according to a conception of equality or fairness. Injustice arises when there is absence of equality, when one person has too much or too little relative to another.

The two forms differ, in the way they take equality. Distributive justice divides a benefit or burden according to some criteria that compares the relative merits of the participants. Distributive justice, therefore, represents a relative equality, in which all participants in the distribution receive their shares according to their respective merits under the criteria in the particular case. Corrective justice, although, features the maintenance and restores the notional equality with which the parties enter the transaction. This equality consists in persons what lawfully belongs to them. Injustice occurs when one party realizes a gain and the other a loss. The law corrects this injustice when it re-establishes the initial equality by depriving one party of the gain and restoring it to the other party. For exampleconsider the party’s initial positions to be two equal lines. The injustice upsets that equality by adding to one line a segment detached from the other. The correction removes that segment from the longer line and returns it to the shorter one. The result is original equality of the two lines.

FROM CORRECTIVE TO REGULATIVE FUNCTION

The next important head discussed in this essay is the regulative function of Corrective justice. As the name goes, in this form of justice by correcting the injustice that the defendant has inflicted on the plaintiff, corrective justice declares a connection between the remedy and the wrong. From the perspective of corrective justice, Aristotle does not treat the situation being judged morally neutral given and then ask what the best course for the future is, all things considered. Rather, because the court aims to correct the injustice done by one party to the other, the remedy responds to the injustice and tries, so far as possible, to undo it. Aristotle's account makes it clear that the restoration operates correlatively on both parties. A remedy directed at only one of the parties does not fit to corrective justice. For the court merely to take away the defendant's wrongful gain doesn’t do because then the plaintiff is left still suffering loss. Nor does it do for the court merely to make good the plaintiff's loss, for then the defendant is left still enjoying his or her wrongful gain. The remedy consists in at once taking away the defendant's excess and making well the plaintiff’s lack. Justice is thereby achieved for both parties by single operation in which the plaintiff recovers what the defendant is made to surrender. Correlatively structured remedy responds to and undoes an injustice only if that injustice is itself correlatively structured. In bringing an action against the defendant, the plaintiff is stating that the two are connected as doer and sufferer of the same injustice. The defendant has done what the plaintiff has suffered are not independent

events. Rather, they are active and passive poles of the same injustice, so that what defendant has done counts as an injustice only because of what the defendant has suffered. The law then corrects this injustice by changing its active and passive limits, so that the doer of injustice becomes the sufferer of the law's remedy. Only because the injustice the same from both sides does the remedy treats parties as correlatively situated. Throughout the transaction, from the occurrence of injustice to its correction, each party's position is normally significant only through the position of the other, which is exactly similar. The idea that correlativity informs the injustice, as well as its improvement, is a central idea of the corrective justice approach to the theory of liability. This idea points to the kind of justifications that are appropriate for determinations of liability. To think of something as a justice is not to refer to a brute event but to make a normative. The defendant, if liable, has committed the same injustice that the plaintiff has suffered, the reason the plaintiff wins ought to be the same as the reason the defendant loses. Thus in specifying the nature of the injustice, the only factors to be considered significant are those that apply equally to both parties. Accordingly, corrective justice not only corrects injustice in transactions; by structuring the considerations relevant to transactions, it is also regulative of the idea of injustice that is applicable to them. Thus the essay steps on to say that correlativity is the structural idea that causes the most obvious and general features of liability, that the liability of the defendant is always a liability to the plaintiff. Liability consists in a legal relationship between two parties, each of whose position is only in the light of the others. Corrective justice is the theoretical concept that highlights the role of correlativity as the organizing idea implied in the relationship between plaintiff and defendant. CORRECTIVE JUSTICE AND CONTRAST WITH DISTRIBUTIVE JUSTICE The corrective justice is also reflected in the contrast with distributive justice. Corrective and distributive justice represents different structures of justification. Corrective justice links the doer and sufferer of injustice in terms of their related positions. Distributive justice, on the other hand, deals with the sharing of a benefit or burden; it involves comparing the potential parties to the distribution in terms of a distributive criteria. Instead of linking one party to another as doer and sufferer, it links all parties through the benefit or burden they all share. The difference between correlativity and comparison is made clear in the difference between the numbers of parties that each admits. Corrective justice links two parties and no more because a relationship of correlativity is necessarily extremities. Distributive justice admits

any number of parties because, in principle, no limit exists for the number of persons who can be compared and among whom something can be divided. The result of this difference between corrective and distributive justice is that no distributive consideration can serve as a justification for holding one person liable to another. The correlative structure of liability guides the irrelevance of any factor that is normatively significant only because of its possible role in a distributive comparison. For purposes of justifying a determination of liability, corrective justice is independent of distributive justice. The idea of correlativity brings out the inner structure of justification applicable to the relationship between the plaintiff and defendant. In the matter of distributive justice, there is a need to divide benefits or burdens on the basis of a comparison of relative virtue or need. However, they don’t connect any two particular persons as correlatively situated.

RIGHTS AND DUTIES OF THE PARTIES INVOLVED

In the system, the justificatory categories expressive of correlativity are those of the plaintiff's right and the defendant's own duty not to interfere with that right. The injustice that liability corrects consists in the defendant's having something or having done something that is incompatible with a right of the plaintiff. Rights and duties are correlated when the plaintiff’s right is the basis of the defendant's duty to perform and, conversely, when the duty includes avoiding the kind of right-infringement that the plaintiff suffered. Under those circumstances the reasons that justify the protection of the plaintiff’s right are the same as the reasons that justify the existence of the defendant's duty. For the defendant to be held liable, it is not enough that defendant's negligent act resulted in harm to the plaintiff. The harm caused has to be to an interest that has the status of a right, and the defendant's action has to be wrongful with respect to that right. Within the framework of corrective justice, rights cannot be understood, for instance, simply as bundles of welfare, for then liability would ultimately be only a mechanism for adjusting relative welfare of the two parties. Welfare, however, is not a normative consideration that is correlatively structured. Of course, shortages in fare may, as a matter of distributive justice, justify a transfer of resources from those who have more to those who have less. Such redistribution, however, operates through a comparison of the welfare of many parties, rather than through a correlative link of any particular two of them. At this point, the Aristotelian idea of corrective justice links to the conception of rights propounded by Kant and his heirs the account of natural right. In the account, rights

and duties are signs of what is termed as 'personality.' Personality is not a psychological but a normative idea- it refers not to the pattern of an individual's behavioural characteristics, but to assumption about entitlement that is implied in the rights and duties of private law. Assumption is that, as participants in a system of liability, the parties are viewed as selfish beings that are not subject to a duty to act for any particular purpose. Because personality signifies the capacity for purpose without regard to particular purposes, no obligation exists to exercise this capacity toward any particular end. Any duties that reflect personality are therefore negatives correlating to rights. These rights arise insofar as the capacity for purposive agency is not merely an inward attribute but achieves external existence in social interactions through its exercise by or embodiment in an agent. Among these rights are the right to the integrity of one's body's as the organ of purposive activity, the right to property is appropriately connected to an external sign of the proprietor's wish, and the right to contractual performance in accordance with the mutually consented exercises of the party’s purpose. The existence of these rights gives rise to correlative duties of non-interference. Moreover, these rights and duties are actualized through a set of judicial institutions that gives them with a definite shape, makes public the mode of reasoning that unites with what is presupposed in them, and undoes the consequences of conduct inconsistent with them.

OUTCOMES OF CORRECTIVE JUSTICE

The essay points out the favourable outcomes of the corrective justice and discusses in broad. According to Benson in his essay, the standard objective of the view given, that corrective justice is the organizing principle for private-law liability generally, runs as follows: Aristotle's theory treats injustice as involving a gain the defendant and an equivalent loss to the plaintiff. Correlativity fulfils its corrective function by simultaneously eliminating both the gain and the loss. In cases of restitution, the defendant may gain without the plaintiffs losing, when the defendant, without authorization, uses and then returns undamaged, property belonging to the plaintiff, which the plaintiff would not have used during that period. Aristotle's corrective justice seems inapplicable to wide areas of liability. This objection is misguided and assumes that gain and loss refer to the difference in the party’s wealth before and after injustice. But since, in Aristotle's theory, baseline for the parties gain and loss is their initial equality, the essay has an assumption that corrective justice presupposes absurdly an initial equality in the party’s wealth. But, equality is Aristotle's way of referring to the entitlement of each of the interacting parties to have what is rightfully theirs. Just as

equality refers to the norm which the interaction between the parties ought to match, so gain and loss refer to a correlatively structured violation of that norm. This correlativity establishes the crucial point in Aristotle's account- there is a conceptual difference between the correlative logic of corrective justice and the comparative logic of distributive justice. Correlativity then informs every ground of liability, without being restricted to injustices in which the increase in the defendant's wealth equals the decrease in the plaintiffs.

ROLE OF CORRECTIVE JUSTICE

A corrective justice approach attempts to differentiate the normative character of liability as a practice within which justification has a contained role. A corrective justice approach takes the justificatory ambitions of this practice seriously by focusing on the law's internal normative dimension. Because the liability of the defendant is always a liability to the plaintiff, correlativity ranks as the most abstract formulation of that structure. Correlativity, then, becomes the key to understand and assess private law's concepts, principles, and doctrines. The only considerations that conform to corrective justice are those that apply correlatively to both parties. Such considerations set terms for the two party’s interaction that take account of their mutual relationship and are consequently fair to both of them. Conversely, in view of the categorical distinction apparent in Aristotle's account between correlativity and comparison, considerations of distributive justice are inadmissible. Also inadmissible are considerations whose justificatory force extends only to one party because the fair terms of a joint interaction cannot be set on a unilateral basis. For example, the conception of corrective justice confirms the rejection in negligence law of the subjective standard for negligence because that standard determines the party's relationship according to the defendant's purity of heart. Thus corrective justice holds the practice of liability to the normative implications of liability's own correlative structure. Corrective justice is an integrating idea that exhibits the meaning of coherence within a system of liability. One aspect of its integrating power is that it connects the injustice and its improvement. The ground of the liability both specifies the nature of the injustice and determines the nature of the remedy that corrects it. A second integrating aspect is that, because the injustice is identical from the standpoint both parties, the reason for liability must be equally applicable to both. Thus the liability regime functions as a logical activity in justification rather than as a chaos of factors separately relevant only to one or the other of the parties. A third integrating

aspect is that, being correlative to each other, the doing and the suffering of injustice form a single juridical sequence in which each party participates only through the presence of the other. Accordingly, all the elements of liability must themselves constitute a rational group that expresses the unity of the party’s legal relationship. A fourth integrating feature is that, since all the relationships of private law are subject to the demands of correlativity, the consistency of legal justification can operate not only within any given relationship but also systemically across relationships, covering all the grounds of liability in their interconnection. Any sophisticated system of liability aspires to realize the values of fairness and rationality. Accordingly, attention to corrective justice honours the law's reasoning as a good faith attempt is not always successful. The corrective justice approach to liability, therefore, views the law's conceptual structure and modes of reasoning not as surrogates for unrecognized goals of public policy but as one should try to understand in its own terms. Even when legal doctrine is unfair or illogical and therefore ought to be changed, corrective justice provides the critical standpoint informing the law's effort to work itself pure. Corrective justice as a theoretical construct and liability as a familiar normative practice are thus reciprocally illuminating. Corrective justice is the structure of justification implied in the practice; and, to extent that it is fair and logical, the practice, through its doctrines and modes of discourse, is the specific realization of corrective justice in a functioning system of liability. By attending to the normative implied in liability as a familiar practice, corrective justice directs us away from contemporary understandings of law.

CONCLUSION

The essay primarily talks about the idea of corrective justice and its relation with distributive justice. Peter Benson in his essay discusses the way how the theory of corrective justice is correlatively linked to that of distributive justice and how does it differ from the corrective justice. In this project contrast has been discussed in a broad heading as the theories are in contrast to each other and are less similar than distinct. The writer also concludes along with this idea that the autonomy of corrective justice requires the concept of distributive justice. The writer reaches a conclusion on the moral grounds that are specific to corrective justice and show the basis yields that are purely non-distributive in character. Since it is the moral ground, we can say that the both forms are in connection with each other.