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The Third Form of Justice

Published online by Cambridge University Press:  20 July 2015

Ronen Perry
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IzhakEnglard, a prominent tort scholar and a former justice of the Supreme Court of Israel, has dedicated the last few years to an unprecedented research project, aimed to “retrace the long and complex history of the Aristotelian conceptual distinction between distributive and corrective justice from antiquity to the present day.” Modern legal theorists are well versed in the Aristotelian concepts. But although these concepts have engaged “the most brilliant philosophical, legal, and theological minds for generations,” the millennial treatment of the Aristotelian distinction has been disregarded in recent times. Englard’s recently published book brings the cumulative knowledge to the attention of contemporary thinkers, offering an opportunity to enhance and deepen ongoing jurisprudential discourse.

Englard has structured the book chronologically (with a single exception), on the grounds that a topical arrangement would be impractical due to its complexity. Nonetheless, one can break down his sequential analysis of discrete manuscripts and extract fascinating inter-temporal debates on concrete questions that have occupied the minds of Western thinkers for centuries. This Critical Notice focuses on one of the main themes that run throughout the book, and may be of the greatest importance to contemporary legal theorists, namely the place of retributive (punitive, vindictive) justice within the Aristotelian framework. Following a short presentation of the Aristotelian text, this Critical Notice utilizes Englard’s painstaking study to systematically evaluate four possible attitudes to the place of retributive justice vis-à-vis the Aristotelian forms: (1) retribution is part of corrective justice (the Thomist position); (2) retribution pertains to distributive justice (the Scotist position); (3) retribution combines both forms of justice; (4) retribution is a third form of justice.

Type
Critical Notice
Information
Canadian Journal of Law & Jurisprudence , Volume 23 , Issue 1 , January 2010 , pp. 233 - 247
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2010

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References

1. Englard, Izhak, Corrective and Distributive Justice: From Aristotle to Modern Times (Oxford: Oxford University Press, 2009) at ix.Google Scholar

2. Aristotle, , Nicomachean Ethics, trans. by Ross, David (Oxford: Oxford University Press, 1980) at 1130b30–1131a9.Google Scholar Although the Ross translation is highly esteemed in academic circles, it does not provide precise references to Aristotle’s original work. The references were consequently taken from Aquinas, St. Thomas, Commentary on Aristotle’s Nicomachean Ethics, trans. by Litzinger, C.I. (Chicago, IL: Henry Regnery Co., 1964)Google Scholar.

3. Ibid. at 1131b25-1132b20.

4. Ibid. at 1131a15-b24.

5. Englard, supra note 1 at xi.

6. Ibid. at xii.

7. Ibid. at 189.

8. Although Aristotle wrote in ancient Greek, his work on ethics had lain dormant for centuries. It was revived interpreted and applied during the reign of Latin, from medieval times to the 18th century.

9. Ibid. at xii.

10. Ibid. at 25; see also ibid. at 60 (“the virtue that lies at the base of the two forms is identical”). For a criticism of Buridan, see ibid. at 30, 34-35, 36-40, 42-43, 56, 61.

11. Ibid. at 165, 210.

12. Ibid. at 53, 54, 57, 65, 67, 144.

13. Ibid. at 40.

14. Ibid. at 53-55, 58, 61-62, 68, 74.

15. Ibid. at 53-54. For a slightly different view, see ibid. at 40, 58-59 (the primary duty to pay the debt is founded in commutative justice; the proportional payment in case of insolvency is based upon distributive justice).

16. Ibid. at 27, 29, 33, 43, 49-51, 53, 55-57, 61, 63, 67-71, 73, 75, 143-44, 165, 167, 210. For a different view, see ibid. at 60, 64-65, 77.

17. Ibid. at 164.

18. Ibid. at 165 (citing a dissertation from 1670).

19. Ibid. at 145.

20. Ibid. at 79-110, 116.

21. Ibid. at 101.

22. Ibid. at 102.

23. See Fletcher, George P., “The Place of Victims in the Theory of Retribution” (1999) 3 Buff. Crim. L. Rev. 51 at 52CrossRefGoogle Scholar (“[B]y the use of the easily misunderstood term ‘retributive,’ I simply mean imposing punishment because it is deserved on the basis of having committed a crime.”).

24. “The law of retaliation, which requires the infliction upon a wrongdoer of the same injury which he has caused to another.” Black’s Law Dictionary, 6th ed. (St. Paul, MN: West, 1990) at 913.Google Scholar

25. Cane, Peter, “Retribution, Proportionality, and Moral Luck in Tort Law” in Cane, Peter & Stapleton, Jane, eds., The Law of Obligations (Oxford: Oxford University Press, 1998) 141 at 143, 160-61Google Scholar; Honoré, Tony, “The Morality of Tort Law—Questions and Answers” in Owen, David G., ed., Philosophical Foundations of Tort Law (Oxford: Oxford University Press, 1995) 73 at 87Google Scholar [Honoré, “The Morality of Tort Law”] (retribution requires imposition of a sanction that is in proportion to the moral gravity of the misconduct, and forbids imposition of a sanction that is out of proportion to the gravity of the misconduct); Honoré, Tony, Responsibility and Fault (Oxford: Hart, 1999) at 13, 83-84, 92, 123, 138Google Scholar [Honoré, Responsibility] (recognizing that the principle of retribution requires that a penalty should not be disproportionate to the moral gravity of the offence); Hampton, Jean, “Correcting Harms Versus Righting Wrongs: The Goal of Retribution” (1992) 39 UCLA L. Rev. 1659 at 1690Google Scholar; Murphy, Jeffrie G, “Does Kant Have a Theory of Punishment?” (1987) 87 Colum. L. Rev. 509 at 530-32CrossRefGoogle Scholar; Taslitz, Andrew E., “The Inadequacies of Civil Society: Law’s Complementary Role in Regulating Harmful Speech” (2001) 1 Margins 305 at 335Google Scholar; Note, “Punitive Damages and Libel Law” (1985) 98 Harv. L. Rev. 847 at 851CrossRefGoogle Scholar (“Fairness further demands that the punishment be proportionate to the severity of the act”).

26. Honoré, The Morality of Tort Law, supra note 25 at 86-87. Honoré discusses how retribution requires “a rough correlation between the type of fault or conduct and the weight of the punishment imposed.” Ibid. at 87.

27. von Hirsch, Andrew Censure and Sanctions (Oxford: Oxford University Press, 1993) at 36–46 Google Scholar; von Hirsch, Andrew, Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals (New Brunswick, NJ: Rutgers University Press, 1985) at 40–46 Google Scholar; Cane, supra note 25 at 143, 161; Ellis, Dorsey D. Jr., “Fairness and Efficiency in the Law of Punitive Damages” (1982) 56 S. Cal. L. Rev. 1 at 6-7.Google Scholar

28. See Cane, supra note 25 at 143.

29. Ibid.

30. Butler, Paul, “Retribution, For Liberals” (1999) 46 UCLA L. Rev. 1873 at 1874Google Scholar; Cotton, Michele, “Back with a Vengeance: The Resilience of Retribution as an Articulated Purpose of Criminal Punishment” (2000) 37 Am. Crim. L. Rev. 1313 at 1315Google Scholar; Schwartz, Gary T. “Mixed Theories of Tort Law: Affirming Both Deterrence and Corrective Justice” (1997) 75 Tex. L. Rev. 1801 at 1811-12.Google Scholar Other popular justifications for criminal liability are deterrence, rehabilitation or treatment, and incapacitation; see Cotton at 1315.

31. Cf. Englard supra note 1 at 9-10 (defining the various positions differently).

32. Aristotle, supra note 2 at 1132b21-23.

33. Ibid. at 1132b25-27.

34. Ibid. at 1132b23-27.

35. Ibid. at 1132b28-31.

36. See Young, Charles M., “Aristotle’s Justice” in Kraut, Richard, ed., The Blackwell Guide to Aristotle’sNicomachean Ethics (Oxford: Blackwell, 2006) 179 at 186.Google Scholar

37. Aristotle, supra note 2 at 1132b31-1133a5. In other words, “justice” in commercial transactions means that considerations must be proportionate, but not identical.

38. Danzig, Gabriel, “The Political Character of Aristotelian Reciprocity” (2000) 95 Classical Philology 399 at 408-11.CrossRefGoogle Scholar

39. Aristotle, supra note 2 at 1132b33-1133a5.

40. See Waldron, Jeremy, “Does Law Promise Justice?” (2001)17 Ga. St. U. L. Rev. 759 at 772Google Scholar (observing that retributive justice is recognized as a separate form of justice in the Nicomachean Ethics).

41. See Danzig, supra note 38 at 401-04.

42. Englard, supra note 1 at 33.

43. Ibid. at 89.

44. Ibid. at 50.

45. E.g., Ferdinandus de Castro Palao (ibid. at 49), John Ponce (ibid. at 55), Augustinus Reding von Biberegg (ibid. at 62), Ewaldus Marchius (ibid. at 63), Florentius de Cocq (ibid. at 68), Simon Karchne (ibid. at 68), and Anton Mayr (ibid. at 74); see also ibid. at 163 n.703, 167.

46. Ibid. at 50, 61.

47. Ibid. at 61, 72.

48. Ibid. at 17-18.

49. See, e.g., ibid. at 31 (discussing Domingo Báñez), 154 (discussing Philippus van Limborch).

50. See, e.g., ibid. at 113-14 (discussing Josef Ibn Shem Tov), 114-15 (discussing Yizhaq Arama).

51. For example, the Arab Philosopher Ibn Rushd opined that the difference in the severity of the sanction is a result of the different measure of damages: hitting an officer is more punishable because it entails a more intense malice. Ibid. at 12.

52. Ibid. at 17 (citing Aquinas); see also ibid. at 14 (citing Albertus Magnus), 133 (citing John Case).

53. Ibid. at 19-20.

54. Ibid. at 20.

55. Ibid. at 44-45 (analyzing Tarquinio Galluzzi).

56. Englard observes that this is the traditional scholastic view. Ibid. at 33.

57. See, e.g., Domingo de Soto, ibid. at 30, Luis de Molina, ibid. at 38, Petrus de Aragon, ibid. at 38, Franciscus Pavonius, ibid. at 52-53, Daniello Concina, ibid. at 75, Valentin Wudrian, ibid. at 136, and Johannes Michael Gutbier, ibid. at 137-38.

58. Ibid. at 73.

59. Cf. ibid. 50 (citing Juan de Dicastillo, who explained that the injured victim may have a commutative justice right for compensation, but this does not relate to the infliction of the punishment), 153 (citing Samuel Pufendorf who wrote that “upon the commission of a crime there lies in the injured person a right to demand reparation for the loss, and upon the injurer an obligation to repair it, and this is the concern” of corrective justice. “But in so far as a crime is a deviation from the law, there resides in the governors of states a power to require a fitting penalty.”).

60. See, e.g, Coleman, Jules L., Risks and Wrongs (Cambridge: Cambridge University Press, 1992) at 348, 354, 365, 367Google Scholar; Coleman, Jules, “The Practice of Corrective Justice” (1995) 37 Ariz. L. Rev. 15 at 15, 26, 30Google Scholar; Hampton, supra note 25 at 1663 (“corrective justice is that branch of justice that requires those who cause losses by acting in wrongful ways to repair, correct, or annul such losses.”); Wright, Richard W., “Actual Causation v. Probabilistic Linkage: The Bane of Economic Analysis” (1985) 14 J. Leg. Stud. 435 at 435.CrossRefGoogle Scholar

61. Aristotle, supra note 2 at 1132a2-1132a6.

62. Weinrib, Ernest J., The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995) at 155–56.Google Scholar Schroeder, Cf. Christopher H., “Corrective Justice, Liability for Risks, and Tort Law” (1990) 38 UCLA L. Rev. 143 at 143-44Google Scholar (contending that corrective justice may be compatible with liability for the creation of risk); Schroeder, Christopher H., “Corrective Justice and Liability for Increasing Risks” (1990) 37 UCLA L. Rev. 439, passim.Google Scholar

63. Cf. Hampton, supra note 25 at 1663 (“while corrective justice is concerned with wrongful harms, retributive justice is concerned with wrongful actions from which such harms result”).

64. Porat, Ariel & Stein, Alex, Tort Liability under Uncertainty (Oxford: Oxford University Press, 2001) at 104 CrossRefGoogle Scholar; Cane, supra note 25 at 142; Fleming, John G., “The Collateral Source Rule and Loss Allocation in Tort Law” (1966) 54 Cal. L. Rev. 1478 at 1483-84CrossRefGoogle Scholar; Owen, David G., “Deterrence and Desert in Tort: A Comment” (1985) 73 Cal. L. Rev. 665 at 668-69CrossRefGoogle Scholar; Perry, Stephen R, “The Moral Foundations of Tort Law” (1992) 77 Iowa L. Rev. 449 at 470 (1992)Google Scholar; Schwartz, Gary T., “The Ethics and the Economics of Tort Liability Insurance” (1990) 75 Cornell L. Rev. 313 at 327Google Scholar; Smith, Steven D., “The Critics and The “Crisis”: A Reassessment of Current Conceptions of Tort Law” (1987) 72 Cornell L. Rev. 765 at 776-77Google Scholar; Sugarman, Stephen D., “Doing Away with Tort Law” (1985) 73 Cal. L. Rev. 558 at 610CrossRefGoogle Scholar; Wright, Richard W., “Substantive Corrective Justice” (1992) 77 Iowa L. Rev. 625 at 668.Google Scholar

65. Aristotle, supra note 2 at 1130b33-1131a3. This point is emphasized in Thomas Aquinas, Summa Theologica, pt. II-II, q. 61, art. 3 (Fathers of the Eng. Dominican Province trans., 2nd ed., 1920) (1273): “commutative justice directs commutations that can take place between two persons.”

66. See Weinrib, Ernest J., “Punishment and Disgorgement as Contract Remedies” (2003) 78 Chicago-Kent L. Rev. 55 at 86.Google Scholar

67. In my view, applying the notion of retributive justice cannot be deemed as vindicating an independent state interest but as an attempt to vindicate the aggregate interest of law abiding citizens. Therefore, it cannot be said that retributive justice is a particular application of corrective justice to the relationship between the state and its mischievous citizen.

68. Aristotle, supra note 2 at 1132a25-27; see also Young, supra note 36 at 186 (“corrective justice seeks to restore equality by taking away the perpetrator’s ‘gain’ … and restoring it to the victim”).

69. Englard, supra note 1 at 49.

70. Ibid. at 157.

71. See also ibid. at 48 (citing Paul Laymann), 161-62, n.703 (citing Dominus Virgilius Maurer).

72. See ibid. 173 (citing a dissertation from 1750).

73. Ibid. at 182. Lapie believes that punishment makes part of distributive justice.

74. Ibid. at 160; see also ibid. at 137.

75. See also ibid. at 173 (citing a dissertation from 1750 to the same effect). Interestingly, Gerard Noodt opined that punishment is corrective justice in accordance with a geometric proportion: the more distinguished usually gets a more lenient punishment, but sometimes the more distinguished is punished more severely (ibid. at 160-61).

76. Ibid. at 49.

77. Ibid. at 146; see also ibid. at 157 (citing Giambattista Vico).

78. Ibid. at 146.

79. Ibid. at 152.

80. Ibid. 152-53; see also ibid. at 49-50 (citing Juan de Dicastillo, who stated that “neither the state nor the judge, acting for the latter [sic], have a commutative justice right toward the delinquent obliging him not to sin.”).

81. Ibid. at 21.

82. Ibid. at 23, 36, 210.

83. See, e.g., ibid. at 76, 39, n. 146.

84. See, e.g., ibid. at 36-7, 125, 139, 162, n.703.

85. Ibid. at 78.

86. Ibid. at 52 (citing Eustache de Saint Paul), 159 (citing Johann Brunnemann), 160 (citing Johannes Voet).

87. Ibid. at 182 (citing Paul Lapie).

88. Ibid. at 139 (citing Georgius-Fridericus Rosa).

89. Ibid.

90. Ibid. See also ibid. at 129 (citing Matthias Wesenbeck who argued that the law adapts the punishment in the concrete case to the person of the offender and to that of the victim according to a geometric proportion).

91. Ibid. at 72 (citing Hyacintus Chalvet).

92. This point is emphasized by Fernandus Rebellus (ibid. at 36-37), Antoine de Waele (ibid. at 139), and Franco Burgersdijck (ibid. at 140). See also ibid. at 143. (Richard Baxter distinguishes between the corrective justice aspect of punishment—compensating the victim—and the distributive justice aspect of punishment—imposing a sanction in compliance with public interest in repairing public injury and avoiding criminal conduct.)

93. Ibid. at 50 (citing Juan de Dicastillo), 163, n.703 (citing Zacharias Esbergius).

94. Ibid. at 136 (citing Valentin Wudrian).

95. Aristotle, supra note 2 at 1130b31-32. In this particular case I used Rackham’s translation which seems less ambiguous: Aristotle, Nicomachean Ethics, trans. by Rackham, Harris (Cambridge, MA: Harvard University Press, 1926).Google Scholar The Ross translation reads: “one kind [of justice] is that which is manifested in distributions of honour or money or the other things that fall to be divided among those who have a share in the constitution.”

96. See, e.g., Englard supra note 1 at 51 (citing Juan De Lugo).

97. Aristotle, supra note 2 at 1131a15-20. Aristotle further states that the “just, too, involves at least four terms, and the ratio between one pair is the same as that between the other pair.” Ibid. at 1131b1-1131b5.

98. Englard, supra note 1 at 66.

99. Ibid. at 19.

100. Ibid. at 145.

101. Ibid. at 152.

102. Ibid. at 51.

103. Ibid. at 166.

104. Ibid. at 132. For further examples see, e.g., ibid. at 67 (citing Jacques Channevelle), 142-43 (citing Adrianus Heereboord).

105. Ibid. at 128; see also ibid. at 165 (citing a dissertation which endorses a similar view).

106. Ibid. at 69.

107. Ibid.

108. Ibid.

109. Ibid. at 24.

110. Ibid. at 151-53; see also ibid. at 49-50 (citing Juan de Dicastillo), 68-69 (citing Domenico Viva), 167 (citing a dissertation).

111. Ibid. at 64.

112. Honoré, Responsibility, supra note 25 at 7, 13; Honoré, “The Morality of Tort Law,” supra note 25 at 78-90; see also Brilmayer, Lea, “International Justice and International Law” (1996) 98 W Va. L. Rev. 611 at 615, 617-19Google Scholar (“The basic conceptions of international justice include retributive justice, corrective justice, and distributive justice.”).

113. Perry, Ronen, “The Role of Retributive Justice in the Common Law of Torts: A Descriptive Theory” (2006) 73 Tenn. L. Rev. 177 at 183-86.Google Scholar