Tort Law as Corrective Justice

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by Ernest Weinrib

Contents

Competing Approaches to Tort Law

Tort law deals with the wrongs that one person has done to another.  But how are we to understand the very idea of wrong as it appears in tort law?  Oliver Wendell Holmes long ago remarked that “[t]he law of torts abounds in moral phraseology” (The Common Law, Lecture III, 1881).  What is the normative perspective from which to view this phraseology and the accompanying apparatus of legal concepts that comprise tort law?

Contemporary tort theory formulates two competing approaches to this issue.  One approach sees tort law as forwarding independently desirable goals (such as loss spreading, compensation, economic efficiency, deterrence, and punishment) or, if these goals are in tension, balancing some against others to produce a result that is desirable overall.  The goals are independent both in the sense that they rest on justifications that are independent of tort law, to which they are then applied, and that they are independent of one another, so that they may represent incompatible normative impulses that need to be balanced.

The second approach claims that the normative dimension of tort law must be understood from within the structure of tort liability itself.  Liability reflects a normative relationship between a particular plaintiff and a particular defendant.  The idea of a wrong in tort law must be understood in as giving legal expression to the requirements of fairness between the parties and of conceptual coherence within their relationship.  On this view, tort law involves not the specification of independently desirable goals but the disclosure of the normative structure that, as a matter of fairness and coherence, is immanent within the relationship of plaintiff and defendant.  This second approach is what Aristotle termed “corrective justice.”

The Structure of Corrective Justice

As its name indicates, corrective justice has a rectificatory function.  By correcting the injustice that the defendant has inflicted on the plaintiff, corrective justice asserts a connection between the remedy and the wrong.  From the perspective of corrective justice, a court – “justice ensouled” in Aristotle’s beautiful formulation – does not treat the situation being adjudicated as a morally neutral given and then ask what is the best course for the future 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 endeavors, so far as possible, to undo it.

This rectification operates correlatively on both parties.  The central feature of a system of liability is that any liability of a particular defendant is simultaneously a liability to a particular plaintiff.  In holding the defendant liable to the plaintiff, the court is making not two separate judgments (one that awards something to the plaintiff and the other that coincidentally takes the same from the defendant), but a single judgment that embraces both parties in their interrelationship.  Each party’s position is intelligible only in the light of the position of the other.  The defendant cannot be thought of as liable without reference to a plaintiff in whose favor such liability runs.  Similarly, the plaintiff’s entitlement exists only in and through the defendant’s correlative obligation.

For corrective justice, the correlative structure of liability matches the structure of the injustice that liability corrects.  Liability is an appropriate response to the injustice only because that injustice also is correlatively structured.  As is evidenced by the judgment’s simultaneous correction of both sides of the injustice, the injustice done by the defendant and the injustice suffered by the plaintiff are not independent items.  Rather, they are the active and passive poles of the same injustice, so that what the defendant has done is the basis of liability only because of what the defendant has suffered, and vice versa.

Because liability treats the parties as doer and sufferer of the same injustice, tort law (and the law of obligations more generally) elaborates legal categories that reflect the identical nature of the injustice on both sides.  The determination of injustice is not a matter of mere assertion but is a normative ascription that must be justified by an appropriate set of reasons.  Accordingly, the correlativity of the injustice means that the reasons for concluding that something is an injustice also have a correlative structure.  Because the defendant, if liable, has committed the same injustice that the plaintiff has suffered, the only considerations relevant to the elucidation of the wrong are those that apply correlatively to both parties.  By exhibiting the parties as the doer and sufferer of the same injustice, such considerations reflect the unity of the parties’ relationship.  Tort reasoning then functions as a coherent enterprise in justification rather than as the enumeration of a hodgepodge of factors separately relevant only to one or the other of the parties.

With justificatory coherence comes fairness as between the parties.  A justification that is inconsistent with corrective justice fails to match the correlative structure of the parties’ relationship.  Such a justification necessarily favors one of the parties at the expense of the other, thereby failing to be fair from the standpoint of both.  In contrast, by insisting that the normative considerations applicable to liability reflect the parties’ correlative situation, corrective justice construes tort law as setting terms for the parties’ interaction that take account of their mutual relationship and are thus fair to both of them.

For tort law to conform to corrective justice, two related requirements must be satisfied.  The first, going to the correlativity of the injustice, is that the injustice done by the defendant to the plaintiff must take the form of the defendant’s breach of a duty correlative to the plaintiff’s right.  For tort law (as well as for the law of obligations more generally), the overarching categories expressive of correlativity are the plaintiff’s right and the defendant’s corresponding duty.  A right is an inherently correlative concept whose existence immediately creates in others a duty not to wrongfully infringe it.  Right and duty are correlated when the plaintiff’s right is the basis of the defendant’s duty and, conversely, when the scope of the duty includes the kind of right-infringement that the plaintiff suffered.  Then the reasons that justify the law’s protection of the plaintiff’s right are the same as the reasons that justify the existence of the defendant’s duty.

Accordingly, corrective justice denies that liability can rightfully exist for harm to an interest that does not have the status of a right.  This accounts for some of the situations where the common law does not recognize (or has been reluctant to recognize) the existence of a duty of care.  In circumstances of non-feasance, for example, the entitlement claimed is not merely to one’s own physical integrity -- which ex hypothesi the defendant has not endangered -- but to the defendant’s positive assistance.  Under the common law, however, one has no general right to be benefited by another.  Similarly cases of economic loss are problematic where the harm flows not from the violation of the plaintiff’s proprietary right but from the defendant’s interference with a resource or facility belonging to a third party.

Another implication of this first requirement—that the defendant have breached a duty correlative to the plaintiff’s rights—is that corrective justice does not look with favor on strict liability, that is, on liability triggered solely by the causation of harm.  Strict liability does not allow room for an intelligible conception of the defendant’s duty.  A duty must be operative at the time of the act that the duty is supposed to govern.  Under strict liability, however, the actor’s duty not to do the harm-causing act need not appear until the moment of injury.  Only retrospectively through the fortuity of harm does it turn out that the defendant’s act was wrongful.  Under strict liability, the plaintiff’s claimed entitlement to be free from the harm that the defendant caused is not correlative to duty, operative at the moment of action, to abstain from the act that causes the harm.

The second requirement, going to the doing and suffering of a single injustice, is that the legal concepts relevant to liability must construct the same injustice from both sides.   With respect to the intentional torts, this unity of doing and suffering is straightforward, as the plaintiff suffers the very kind of wrongful consequence that the plaintiff intended.  With respect to liability for negligence, however, the law’s task is more complex.  Negligence concerns the plaintiff’s being wrongfully injured through the defendant’s creation of an unreasonable risk.  If negligence liability is to be a coherent normative phenomenon, the injury and the risk creation have to be understood as the constituents of a single wrong that is elucidated through an integrated ensemble of legal concepts, so that the differing experiences of the parties as doer and sufferer and the temporal gap between the doing and the suffering are subsumed under a unified set of normative categories that render the wrong done identical to the wrong suffered.

Coherence requires that the injustice relate act to injury and vice versa.  Precluded are definitions of the injustice between the parties in terms that pertain to one of them alone.  As negligence law recognizes, the injustice does not consist merely in the unreasonably created risk considered in itself; that would one-sidedly focus on the defendant’s wrongful action and entail liability for unreasonable risk-creation even without damage.  Nor does it consist in the harmful effect considered in itself; that would one-sidedly focus on the plaintiff’s injury and entail strict liability, rather than negligence.  Nor, again, does the injustice consist in the combination of wrongful action and injury each considered one-sidedly; that would mean that, although the defendant has committed a wrong and the plaintiff has suffered one, these are two different wrongs, each resting on its own foundation.  Rather, the injustice embraces the entire span from the act to injury: the defendant’s act is viewed as a wrong because of its potential to cause this kind of injury, and the plaintiff’s injury is viewed as a wrong because its potential occurrence is a reason for considering the defendant’s act wrongful.  Then the sequence from act to injury forms the single wrong that the defendant can be said to have done and the plaintiff to have suffered.

To be coherent, negligence doctrine elaborates legal concepts that treat the defendant’s act and its effect on the plaintiff as an integrated sequence in which there is a single injustice that is the same for both parties.  In legal terms this sequence begins with defendant’s breach of the standard of reasonable care and ends in the factual causation of injury.  However, the sequence can be regarded as integrated only if its two termini operate not as atomistic elements that the law simply adds together, but as constituents of liability that, for purposes of tort law, each derives their significance from the other.  Hence, the unreasonableness of the risk created by the defendant must lie in the possible occurrence of the kind of injury that the plaintiff suffered.  This way of relating the negligent act to the injury makes the injustice of unreasonable risk-creation the same for both parties.

The signal achievement of the common law’s treatment of negligence in its great cases was to develop the concepts of negligence analysis in a way that coherently links the unreasonable risk to the harm suffered.  Duty and proximate cause are crucial components in this linkage.  These concepts connect wrongdoing and injury by describing the wrongful risk in terms of the range of the potential victims and consequences through which the risk is to be understood as wrongful.  Duty connects the defendant as a wrongdoer to the plaintiff as a member of the class of persons wrongfully put at risk.  Similarly, proximate cause connects the defendant’s negligence to the plaintiff’s suffering of the kind of injury or accident the risk of which rendered the defendant’s act wrongful.  Because both duty and proximate cause are requirements of liability, the defendant is not held legally responsible for the materialization of a harm that is not within the set of possibilities that supply a reason for exercising due care.  When, however, the injury suffered by the plaintiff is to a member of the class of persons that the defendant wrongfully put at risk and is the kind of injury or accident that that due care is supposed to avoid, then the wrongfulness of both the defendant’s action and the plaintiff’s injury is referable to the same sort of risk.  Under those circumstances, the sequence from the defendant’s creation of an unreasonable risk to the materialization of that risk in injury to the plaintiff constitutes the same injustice for both parties.

Corrective Justice as Theoretical Framework

The corrective justice approach attempts to discern the normative character of liability as a familiar practice within which justification has a pervasive role.  Corrective justice takes the justificatory ambitions of this practice seriously by focusing on the law’s internal normative dimension.  With its eye fixed on the institutions through which the practice unfolds and on the reasoning that expresses the distinctive mode of justification within a liability regime, it focuses on the structure of the relationship between the two parties.  Because the liability of the defendant is always a liability to the plaintiff, correlativity ranks as the most abstract formulation of that structure.  Corrective justice thus holds the practice of liability to the normative implications of liability’s own correlative structure.

Any sophisticated system of liability aspires to realize the values of fairness and coherence.  Accordingly, attention to corrective justice honors the law’s reasoning as a good faith attempt – not always successful – to make the exercise of official power the product of a fair and internally coherent set of justifications.  The corrective justice approach to liability therefore views the law’s conceptual structure and modes of reasoning, not as surrogates for unacknowledged goals of public policy, but as discourse that one should try to understand in its own terms.  Even when legal doctrine is unfair or incoherent and therefore ought to be changed, corrective justice provides the immanent 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 implicit in the practice; and to the extent that it is fair and coherent, the practice, through its doctrines, institutions and modes of discourse, is the specific realization of corrective justice in a functioning system of liability.

By attending to the normativeness implicit in liability as a familiar practice, corrective justice directs us away from contemporary consequentialist and reductionist understandings of law.  Corrective justice repudiates the idea that the justifications that figure in private law derive from goals that are desirable independently of the role that they can coherently play in a liability regime that is fair to both parties.  Instead, on the assumption that any sophisticated system of private law aspires to fairness and coherence, a corrective justice approach attempts to bring to the surface the structure of normative thought latent in the institutions and concepts of a liability regime.  Corrective justice thus allows one to discern in private law the possibility of vindicating the Aristotelian notion that law is, in Aquinas’ striking phrase (Summa Theologica, I-II, Q. 90, A. 4), ‘a certain ordering of reason’.

Bibliography

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Fletcher, George P., ‘Remembering Gary—and Tort Theory”, (2002) 50 UCLA Law Review, 279-292.

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Weinrib, Ernest J.  ‘Correlativity, Personality, and the Emerging Consensus on Corrective Justice’, (2001) 2Theoretical Inquiries in Law, 107-159.

Zipursky, Benjamin C., Rights, Wrongs, and Recourse in the Law of Torts, (1998) 51 Vanderbilt Law Review,1-100.

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