A prominent position in the contemporary debate over the relationship between distributive and corrective justice is that distributive justice is normatively prior to corrective justice. The view eliminates corrective justice as a principle with independent normative force. This Comment in three sections argues that the eliminitivist arguments urged by Kevin Kordana and David Tabachnick against Rawslian conceptions of tort law are unconvincing. Section I argues that nothing intrinsic to Rawlsian methodology bars corrective justice from having independent normative force in tort law. Section II argues that the scope of Rawlsian principles of justice or considerations bearing on the temporal scope of distributive and corrective justice don’t compel the same conclusion. Briefly describing different possible positions on the point of corrective justice, Section III concludes that the relation between distributive and corrective justice can’t be assessed without determining the conceptual elements of corrective justice.
Essay
On Belling the Cat: Rawls and Corrective Justice
Recent scholarship has argued that post-institutional theories of distributive justice, specifically Rawlsianism, are compatible with a principled commitment to corrective justice. We argue that however attractive on independent or pre-institutional moral grounds a principled commitment to corrective justice and its corresponding model of tort law may be, it is misleading to think that the Rawlsian post-institutional conception of distributive justice is, at the level of principle, consistent with such an independent commitment. We argue that holding the truth of a maximizing theory of distributive justice in conjunction with a principled commitment to corrective justice is inconsistent. The attempt to hold both positions as true may flow, we suggest, from an unjustified presumption about the compatibility of post-institutional – particularly, maximizing – theories of distributive justice and other non-maximizing moral commitments which one might hold or view as appealing on grounds independent of one’s commitment to distributive justice. In our view, the values enshrined in Rawls’s two principles of justice (taken in lexical order) reflect the deontological features of Rawls’s original position. The principles of justice themselves, however, once adopted, function as consequentialist maximizing principles, taken in lexical priority, in selecting between competing complete schemes of legal and political institutions. While the tension between the corrective justice and the utilitarian or wealth maximization conceptions of tort law has long been discussed and is well understood, the relationship between the corrective justice conception of torts and post-institutional theories of distributive justice (in particular, Rawlsianism) has only recently received sustained attention. Recent articles by Stephen Perry and Arthur Ripstein emphasize the compatibility – or even the necessity – of corrective justice (i.e., as an “independent” component of justice) within the Rawlsian distributive scheme. We argue, contra this emerging view, that distributive justice, in particular Rawlsianism, conflicts at the level of principle with corrective justice, and that it is inconsistent to remain (as a matter of principle) independently committed to both, given the Rawlsian view of property. In short, our central claim is that Rawlsian ideal theory is best understood as adopting the consequentialist (outcome-oriented) theory of tort law.
Two Models of Tort (and Takings)
Since the publication of The Cost of Accidents, the model of costs has been the dominant approach to tort theory. On the model of costs, tort law promotes efficiency by requiring agents to internalize the costs they impose on others when it is efficient to do so. Despite its success, the model of costs is deeply puzzling. Positive externalities are as inefficient as negative externalities. Therefore, if the model of costs provides a good explanation of tort law, one would expect that we would also have a legal regime oriented towards the recapture of the benefits we confer on others. In some instances, restitution allows the recapture of positive externalities, but compared to tort it is a trifling part of the law.
The asymmetry between the legal consequences of harms and benefits is a fundamental, structural feature of our law. Any successful explanation of our legal institutions must account for it. Part One of this Essay explores attempts to explain law’s harm-benefit asymmetry from the perspective of the model of costs. I argue that the economic explanations offered to date are, in a variety of respects, unsatisfying. In Part Two, I develop an alternative to the model of costs, which I call the model of harms. On this model, tort responds to the harms that we inflict on one another, rather than the costs that we impose on one another. I show how harms are different from costs, and I explain how conceiving of tort law as an institution concerned with harms rather than costs make better sense of both tort doctrine and law’s harm-benefit asymmetry.
Part Three explores Takings jurisprudence, which exhibits its own harm-benefit asymmetry. The Constitution requires the government to pay just compensation when it takes property. Abraham Bell and Gideon Parchomovsky have argued that we ought to have a givings jurisprudence, which would require the government to impose a fair charge when it gives away property. I argue that Bell and Parchomovsky’s suggestion makes sense only from the perspective of the model of costs, and that the model of harms better explains the Takings jurisprudence we actually have. I show that, like tort law, constitutional takings jurisprudence responds to the harm that government inflicts when it takes property, rather than the costs it imposes.