This paper was prepared for the Obligations VI conference at Western University, London, Ontario in July 2012. The conference theme was Challenging Orthodoxy. I would like to thank the Conference's organizers, Erika Chamberlain, Jason Neyers, and Stephen Pitel, as well as its participants, in particular, Chris Essert, Andrew Gold, and Ernest Weinrib. I would also like to thank Amy Salyzyn and student editor, Odette Simone Ansell, at the Canadian Journal of Law and Jurisprudence for their helpful suggestions and edits.

1. I define private law in opposition to public law. While public law necessarily involves the state as a party, private law does not. Private law is the law between individuals and, although private actions against the state can and do occur, it does not necessarily involve the state as a direct party to its causes of action. For general agreement with this definition, see Waddams, Stephen, Dimensions of Private Law: Categories and Concepts in Anglo-American Legal Reasoning (Cambridge: Cambridge University Press, 2003)CrossRefGoogle Scholar; Weinrib, Ernest J, The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995)Google Scholar [Weinrib, The Idea of Private Law].

2. For ease of exposition, throughout I refer to defendants by male pronouns and plaintiffs by female pronouns.

3. The clearest expression and endorsement of this position is found in the opening pages of Ernest Weinrib’s The Idea of Private Law: “one must understand private law from a perspective internal to it. / … [This] approach treats private law as an internally intelligible phenomenon by drawing on what is salient in juristic experience and by trying to make sense of legal thinking and discourse in their own terms.” Weinrib, The Idea of Private Law, supra note 1 at 2-3.

4. Ibid at 21.

5. It might be the case that an internal perspective towards remedies entails a thoroughly internal perspective toward the whole of private law. Consideration of this lies outside the ambit of this article however.

6. Calabresi, Guido & Douglas Melamed, A, “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral” (1972) 85 Harv L Rev 1089.CrossRefGoogle Scholar

7. Sinel, Zoë, Understanding Private Law’s Remedies (SJD Thesis, University of Toronto, Faculty of Law, 2013)Google Scholar [unpublished] [Sinel, Understanding].

8. It is beyond this article’s scope to argue fully for this position. Fortunately, its thesis does not require this as it applies only to intrinsic accounts regardless of whether they are correct. As such, stipulation of the relative fitness of intrinsic accounts is sufficient.

9. See Weinrib, The Idea of Private Law, supra note 1; Coleman, Jules, Risks and Wrongs (Cambridge: Cambridge University Press, 1992)Google Scholar; Stevens, Robert, Torts and Rights (Oxford: Oxford University Press, 2007)CrossRefGoogle Scholar.

An apparent exception is civil recourse theory. Benjamin Zipursky and John Goldberg see their account as opposed to extrinsic accounts, but also reject corrective justice explanations. (See, e.g., Zipursky, Benjamin, “Rights, Wrongs, and Recourse” (1998) 51 Vand L Rev 1 Google Scholar at 4, where he claims that civil recourse marks “a third way of understanding tort law.”) Elsewhere I have argued that civil recourse theory is better understood as an extrinsic account (Sinel, Understanding, supra note 7).

Notably, even some extrinsic theorists admit the importance of corrective justice. See Posner, Richard, “The Concept of Corrective Justice” (1981) 10 J Legal Stud 187.CrossRefGoogle Scholar

10. That is, particular justice as distinguished from general justice. General justice, for Aristotle, is synonymous with virtue. A just person is a virtuous person. Particular justice relates to the more specific idea of desert of getting one’s due. See Beever, Allan, “Aristotle on Equity, Law, and Justice” (2004) 10 Legal Theory 33 CrossRefGoogle Scholar. For recent discussion of the nuances of just what “getting one’s due” means, see Gardner, John, “Finnis on Justice” in Keown & George, eds, Reason, Morality and the Law: The Jurisprudence of John Finnis (Oxford: Oxford University Press)Google Scholar [forthcoming in 2013].

11. Aristotle, Nicomachean Ethics, translated by Ross, WD, in McKeown, Richard, ed, Introduction to Aristotle (New York: Modern Library, 1947) 297 Google Scholar at Book V, Ch 2, 1130b25-1131a.

12. Weinrib, The Idea of Private Law, supra note 1.

13. Conversion works particularly well to illustrate the way in which Aristotle’s corrective justice can map onto tort law. In other torts, however, it is notable that the gain of the defendant is not materially equivalent to the plaintiff’s loss. If the defendant negligently drives into the plaintiff’s mailbox, we would be hard Pressed to say that the defendant has realized any material gain from this wrong, let alone that the gain he realized would be equivalent (or even necessarily connected to) the loss suffered by the plaintiff. Ernest Weinrib has noted that the gain we (and Aristotle) are talking about here is not a material gain, but a normative one. The gain is the defendant’s extra bit of freedom he has exercised in trampling on the plaintiff’s rights. This precisely mirrors the plaintiff’s normative loss of having her rights trampled on. See, in particular, Weinrib, Ernest, “The Gains and Losses of Corrective Justice” (1994) 44 Duke LJ 277 CrossRefGoogle Scholar at 286: “corrective justice is concerned with the correlativity of normative, not material, gain and loss.” For recent criticism of this, see Hershovitz, Scott, “Corrective Justice for Civil Recourse Theorists” (2011) 39 Fla St UL Rev 107 Google Scholar at 114-15.

14. The at times uncritical adoption of corrective justice as a framework for unjust enrichment can further be attributed to the comparative difficulties legal theorists have encountered when attempting to apply this framework to the law of torts, in general, and negligence torts in particular. The most challenging obstacle for viewing certain torts as an instance of corrective justice is, as noted above, the apparent lack of equivalence between the plaintiff’s loss and the defendant’s gain. In the typical negligence-governed tort action, while the defendant’s breach of his duty of care vis-à-vis the plaintiff results in (material) loss to the plaintiff, the defendant will rarely reap any consequent (material) gain from his injurious behavior. By contrast, in unjust enrichment, the loss of the plaintiff is identical with the defendant’s gain. It is precisely what the plaintiff has lost by virtue of the mistransfer that the defendant has gained: line segment DC is identical to AE; it is line AE. As alluded to above in footnote 13, with respect to negligence’s lack of equivalence between the plaintiff’s loss and the defendant’s gain, Weinrib posits the following solution: The relevant gains and losses should be thought of as normative, not material. The normative loss is the infringement of the plaintiff’s right and the normative gain is the defendant’s over-stepping his sphere of rightful action. The material losses and gains are, for Weinrib, only manifestations of the infringement of right and their function is to serve as a means to quantify damages. Weinrib, The Idea of Private Law, supra note 1 at 115-20. For a trenchant criticism of Weinrib’s argument, however, see Perry, Stephen, “The Moral Foundations of Tort Law” (1991-1992) 77 Iowa L Rev 449 Google Scholar at 478-88.

Notably, this adoption of the Aristotelian language of corrective justice is not limited to legal theorists. Judges also explicitly invoke it: Regional Municipality of Peel v Canada [1992] 3 SCR 762 at 804, where McLachlin J [as she then was], speaking for the Supreme Court of Canada, states, “[t]he concept of ‘injustice’ in the context of the law of restitution harkens back to the Aristotelian notion of correcting a balance or equilibrium that had been disrupted.”

For doubts, see Sinel, Zoë, “Through Thick and Thin: The Place of Corrective Justice in Unjust Enrichment” (2011) 31: 3 Oxford J Legal Stud 551 CrossRefGoogle Scholar [Sinel, “Thick & Thin”].

15. I am leery of saying “with defective consent” as it is an oversimplification. For example, it leaves unexplained unjust enrichment cases where the unjust factor—i.e., what triggers restitution—is a failure of consideration as a result of a subsequent judicial finding that the contract once duly entered into is now void. In these cases, there is obviously good consent since there had to be to ground the contract in the first place. See Kleinwort Benson Ltd v Lincoln City Council (1998) [1999] 2 AC 349 HL (Eng). Furthermore, consent is generally considered legally effective in unjust enrichment in the sense that it is sufficient to pass title from the plaintiff to the defendant.

16. It is a matter of debate what “unjust” means in the context of unjust enrichment. Proponents of the (English) “unjust factors” approach construe “unjust” to entail the presence of one or more of the recognized common law unjust factors (viz., mistake, duress, failure of consideration, and undue influence). What is unjust about the transfer is that the plaintiff’s consent was vitiated or impaired as result of the presence of one or more unjust factor or factors. Ignorance has controversially been proposed as an additional unjust factor since, a fortiori, it entails the utter absence, not just mere impairment, of consent. By contrast, proponents of the absence of basis approach locate the “unjustness” in the lack of legal justification for the defendant’s retention of the benefit—that is, the transfer cannot be explained by contract, gift, or some other legally recognized ground.

17. Robert Stevens has recently introduced a similar, but threefold, taxonomy of corrective justice accounts ( Stevens, Robert, “Rights and Other Things” in Nolan, Donal & Robertson, Andrew, eds, Rights and Private Law (Oxford: Hart, 2012) at 115.Google Scholar The first is a formal account of corrective justice. Here, corrective justice itself does not do the justificatory work, but rather itself requires justification (ibid at 144). Stevens associates such an account with John Gardner. I would agree with this attribution. According to a formal account, corrective justice simply describes a pattern of allocation, an allocation back, or a correction. One could imagine, thus, several unappealing possible patterns of corrective justice, for example, “all gifts must be returned.” The formal patterned approach to corrective justice, notably, can be seen in all three of Stevens’ categories. The second Stevens labels as a “weak” or “trite” formulation of corrective justice. This he associates with Jules Coleman. The essence of this position is that once the primary rights are violated, we should do the next best thing to the wrong never having occurred. Stevens thinks this is an obvious, but uninteresting claim (ibid at 145). I would associate this type of corrective justice with Gregory Keating and to a lesser extent John Gardner. The third approach to corrective justice Stevens attributes to Ernest Weinrib, calling it the “broader conception” or the “fat version” of corrective justice (ibid at 145-46). This is what I call the “thick” account. According to it, not only our secondary (remedial) rights, but also our primary rights (our rights to property and bodily security) can be justified by reference to corrective justice: “It can justify the right to the toy aeroplane, and not just the obligation to pay for negligently smashing it” (ibid).

18. In what follows, I focus (as for the most part does Weinrib) on the ideas of Kant.

19. This is the universal aspect of Kant’s Universal Principle of Right.

20. For a clear and persuasive picture of this, see Ripstein, Arthur, “As If It Had Never Happened” (2007) 8 Wm & Mary L Rev 1957.Google Scholar

21. Weinrib, Ernest, “Corrective Justice” [1992] 77 Iowa L Rev 403 Google Scholar at 424 [emphasis added].

22. Ibid.

23. Weinrib, The Idea of Private Law, supra note 1 at 64.

24. Weinrib, Ernest, “Corrective Justice in a Nutshell” (2002) 52 UTLJ 349 at 350 Google Scholar.

25. Gardner, John, “The Purity and Priority of Private Law” (1996) 46 UTLJ 459 CrossRefGoogle Scholar at 469-70 [emphasis in the original].

26. Sinel, “Thick & Thin,” supra note 14.

27. Gardner, John, “What is Tort Law For? Part 1. The Place of Corrective Justice” (2011) 30 Law & Phil 1 CrossRefGoogle Scholar at 9-10 [Gardner, “Part 1”] [emphasis in the original].

28. While Gardner criticizes the logic of the thick version of corrective justice, others take issue with its interpretative accuracy. According to Gregory Keating, for instance, it is misleading to give the concepts of wrong and its reciprocal right “an essentially remedial interpretation,” and by this he means interpreting the wrong and right as illustrations of corrective justice. (Gregory C Keating, “Is Tort Law a Remedial Institution?” Center in Law, Economics and Organization: Research Paper Series and Legal Studies Research Paper Series, USC Center in Law, Economics and Organization Research Paper No. C10-11, USC Legal Studies Research Paper No. 10-10, 3). This is because the two exhibit fundamentally different structures: primary obligations are omnilateral, i.e., owed by everyone to everyone else, while secondary (remedial) obligations are bilateral (ibid at 4 & 6). Only these secondary obligations are obligations of corrective justice properly so called. Keating elaborates:

It is, however difficult to get a firm hold on Keating’s underlying theoretical allegiance as he appears to vacillate between endorsements of the continuity and unity accounts. Here, he sounds wedded to a Gardnerian account with its focus on second-best and the language of primary and secondary obligations:

29. Ernest Weinrib, “The Rights of Corrective Justice” (Paper delivered at The Sixth Biennial Conference on the Law of Obligations at Western University, Challenging Orthodoxy, London, Ontario, 19 July 2012) [unpublished] at 3.

30. Weinrib, Ernest, “The Structure of Unjustness” (2012) 92 BUL Rev 1062 Google Scholar at 1068.

31. Gardner, “Part 1,” supra note 27 at 32.

32. Ibid.

33. Ibid at 30.

34. Ibid at 33.

35. An operative reason is a reason for which belief in it entails the attitude that I ought to do as the reason recommends. For example: I promise you that I will call on your mother on her birthday; today is her birthday. The operative reason leading to the conclusion that I ought to call on your mother today is the fact of my promise to you. Auxiliary reasons are different. They serve to identify the act that the operative reason provides reason to perform and, in situations of conflict, help determine the weight of conflicting reasons. In the example above, the auxiliary reason is the fact that today is your mother’s birthday. This tells me how to execute my operative reason: go today to visit your mother. See Raz, Joseph, Practical Reason and Norms, 2d ed (Oxford: Oxford University Press, 1990) at 33–35 Google Scholar.

36. If we take a Keating-inspired gloss on the problem, it seems that we have certain kinds of omnilateral wrongs causing loss, we need an external principle of corrective justice to govern allocations back.

37. The judicial perspective is removed because, not being a direct party to the action, he or she is disinterested.

38. TM Scanlon, “Structural Irrationality” (2011) to appear in a volume of essays in honor of Philip Pettit, tentatively titled Common Minds, edited by Geoffrey Brennan, Robert Goodin, & Michael Smith at 3-4.

39. Ibid at 4.

40. In fact, Gardner embraces this feature. Norms of justice, for him, to be valid, do not necessarily need to be good norms of justice. For example, a potential norm of corrective justice could be: ‘give all gifts back.’ This is clearly an allocation back, so it its within the form of corrective justice, but we wouldn’t say it is a very good (as in morally laudable) norm of justice, or as he puts it “sound” norm of justice. Gardner, “Part 1,” supra note 27 at 17: “norms of justice are not analytically sound. ‘Sound norm of justice’ is no tautology; ‘unsound norm of justice’ is no oxymoron.”

41. Notably, we do not have to adopt the Kantian picture to see how monetary damages help make up for the original wrong. Simply, we don’t have to see them as instantiations of corrective justice. Instead, we can understand them as actions mandated by the obligatory nature of the original operative reason not to harm someone through one’s tortious behavior. Obviously, the first-order operative reason—not to cause harm—can no longer be satisfied, but this doesn’t mean that the tortfeasor can pretend that, and act as if, nothing happened. The second-order aspect of the obligation—that which gives it its mandatory nature—tells him to do something. The court steps in and crystallizes just what this something is. This idea is developed more fully and argued for in Sinel, Understanding, supra note 7.