Rebecca Stone, ‘Distributing Corrective Justice’

ABSTRACT
John Gardner argues that while corrective justice is not about doing distributive justice, when we create a system of tort law that gives wronged persons a legal right to corrective justice, we inevitably confront an important question of distributive justice: does ‘the system justly distribute access to the corrective justice it dispenses’. It would be distributivity unjust were the system to give one person the legal right to corrective justice of some wrong without giving the same to similarly situated others. At the same time, Gardner contends, the good that tort law is distributing here is ‘irreducibly corrective … [which] lends a certain explanatory priority to corrective over distributive justice’.

Is it puzzling to understand corrective justice in the way Gardner suggests? Do Gardner’s observations support the idea that corrective justice enjoys some kind of ‘explanatory priority’ over distributive justice? Can corrective justice be conceptualized prior to and independent of questions of distributive justice? I don’t think we can get a full answer to these questions without delving more deeply into the nature of private legal rights. I therefore explore these questions by examining the conception of private legal rights that Gardner adheres to alongside the Kantian conception that Gardner rejects. I then propose and defend an intermediate conception. On my conception, there is a singular question of justice at the fundamental moral level that entails corrective and distributive principles whose prescriptions depend on the circumstances. There is no fundamental norm of corrective justice that is distinct from some other fundamental norm of distributive justice. On the contrary, the moral soundness of any corrective legal norm depends inescapably on distributive considerations.

Stone, Rebecca, Distributing Corrective Justice, UCLA School of Law, Public Law Research Paper No 22-06, 2022, in Private Law and Practical Reason: Essays on John Gardner’s Private Law Theory (Haris Psarras and Sandy Steel eds, Oxford University Press, forthcoming.

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