, , ? , //Refusal to DivorceeIs it a Female, Masculinity, or Independent Cause of Action? Between Distributive Justice, Corrective Justice, and Empowering the Spouse Refused a Divorce

2017 ◽  
Author(s):  
Benjamin Shmueli
Keyword(s):  
Distributive Justice ◽  
Corrective Justice ◽  
Female Masculinity

Punishment and Inclusion: The Presuppositions of Corrective Justice in Aristotle and What They Imply

1995 ◽  
Vol 8 (2) ◽  
pp. 259-274
Author(s):  
Randall R. Curren
Keyword(s):  
Distributive Justice ◽  
The Other ◽  
Corrective Justice ◽  
Nicomachean Ethics ◽  
Other Hand

There is a view of Aristotle’s conception of corrective justice which has enjoyed some following among tort theorists in recent years, according to which corrective justice is distinct from distributive justice and entirely independent of it. The distinctness of the two is, of course, asserted by Aristotle in a well-known passage in the Nicomachean Ethics, and no one could seriously doubt that he does take the forms of these two kinds of justice to be distinct:What is just in distributions of common assets will always fit the [geometrical] proportion mentioned above,... On the other hand, what is just in transactions is certainly equal in a way, and what is unjust is unequal; but still it fits numerical proportion, not the [geometrical] proportion of the other species.

Troubled Foundations for Private Law

2008 ◽  
Vol 21 (2) ◽  
pp. 459-476
Author(s):  
Stephen A. Smith
Keyword(s):  
Distributive Justice ◽  
Human Life ◽  
Civil Law ◽  
Corrective Justice ◽  
Property Law ◽  
Private Law ◽  
Wide Range ◽  
Commutative Justice ◽  
The Law ◽  
Historical Comparative

In The Foundations of Private Law James Gordley argues that the modern private law in common and civil law jurisdictions is best explained on the basis of a neo-Aristotelian theory first developed by a group of 16th century Spanish thinkers known as the ‘late scholastics’. The concepts of distributive and commutative justice that, according to Gordley, lay at core of the scholastics’ theory and that explain, respectively, modern property law and the law of obligations (contract, tort, unjust enrichment), though ignored and disparaged for much of the 19th and 20th centuries, are today familiar to most private law scholars (thanks in part to Gordley’s earlier work). Yet Gordley’s understanding of these concepts and, in particular, of their relationship both to one another and to the apex idea of ‘living a distinctively human life’ is unique, setting his account apart not just from utilitarian and other ‘modern’ accounts of private law, but also from other neo-Aristotelian theories (e.g., those of Ernest Weinrib or Jules Coleman). In Gordley’s presentation, commutative (or ‘corrective’) justice is derived from distributive justice and distributive justice is derived from the idea of the distinctively human life. Confidently traversing a wide range of historical, comparative and theoretical materials, the book’s argument is at once ambitious, learned, and elegantly presented. But as a theoretical account of the foundations of the modern private law it is unpersuasive. The book’s own account of property law suggests that in practice the idea of distributive justice does little, if any, work in explaining the rules we actually have. Nor is it clear how, if at all, distributive justice flows from the allegedly foundational idea of the ’distinctively human life’. As for commutative justice, it is not clear why, if is derived from distributive justice in the way Gordley believes, the courts should care about it. Finally, but perhaps most significantly, Gordley’s conception of commutative justice is unable to account for central features of the law of obligations.

Climate Change and People on the Move

2018 ◽  
Author(s):  
Fanny Thornton
Keyword(s):  
Climate Change ◽  
Distributive Justice ◽  
International Law ◽  
Corrective Justice ◽  
Change Context ◽  
International Responsibility ◽  
People Movement ◽  
Disproportionate Burden ◽  
Impacts Of Climate Change

The book applies a justice framework to analysis of the actual and potential role of international law with respect to people on the move in the context of anthropogenic climate change. That people are affected by the impacts of climate change is no longer doubted, including with implications for the movement of people (migration, displacement, relocation, etc.). The book tackles unique questions concerning international responsibility for people movement arising from the inequities inherent to climate change. Corrective and distributive justice provide the analytical backbone. They are explored in a substantial theoretical chapter and then applied to subsequent contextual analysis. Corrective justice supports analysis as to whether people movement in the climate change context could be conceived or framed as harm, loss, or damage which is compensable under international law, either through fault-centred regimes or no-fault regimes (i.e., insurance). Distributive justice supports analysis as to whether such movement could be conceived or framed as a disproportionate burden, either for those faced with movement or those faced with sheltering people on the move, from which duties of redistribution may stem. The book contributes to the growing scholarship and analysis concerning international law or governance and people movement in response to climate change by investigating the bounds of the law where the phenomenon is viewed as one of (in)justice.

Fairness

2020 ◽  
pp. 194-216
Author(s):  
Pavlos Eleftheriadis
Keyword(s):  
European Union ◽  
Distributive Justice ◽  
Fundamental Principle ◽  
Corrective Justice ◽  
Legal Interpretation ◽  
The European Union ◽  
Member States ◽  
The Third ◽  
Court Of Justice ◽  
The Eu

This chapter argues that fairness is a fundamental principle of the EU treaties. It means that under the EU treaties obligations of solidarity from one state to another are real. Their rationale, however, is not one of fair distribution. States may seek redress for unfairness on the basis of a conception of corrective, not distributive justice. Solidarity in the European Union is a matter of bilateral corrective justice, which informs the established treaties and gives them meaning. This is not just a moral interpretation, but also a legal interpretation, manifested not only in the practice of the member states but also in the judgments of the Court of Justice. Fairness, understood as justice in cooperation, is the third fundamental principle of the European Union as a Union of Peoples.

What is Tort Law For? The Place of Distributive Justice

2019 ◽  
pp. 79-102
Author(s):  
John Gardner
Keyword(s):  
Distributive Justice ◽  
Tort Law ◽  
Corrective Justice ◽  
Explanatory Priority ◽  
The Law ◽  
A Site

This chapter defends the claim that certain questions of distributive justice are central to the law of torts, and cannot but be faced by those who administer and develop it, precisely because the law of torts is a site of corrective justice. Those with pigeonholing instincts may be tempted to label this a ‘mixed’ or ‘pluralistic’ explanation of tort law. The chapter endorses Peter Cane’s thesis that corrective justice provides the structure of tort law within which distributive justice operates. It presents a version of this thesis which shows that the place of corrective justice in tort law enjoys some kind of explanatory priority.

Original Acquisition and Unilateralism: Kant, Hegel, and Corrective Justice

2012 ◽  
Vol 25 (1) ◽  
pp. 119-136 ◽  
Author(s):  
N.W. Sage
Keyword(s):  
Property Rights ◽  
Distributive Justice ◽  
Property Right ◽  
Corrective Justice ◽  
Private Law ◽  
Legal Institutions ◽  
Unilateral Action ◽  
Civil Condition ◽  
Original Acquisition ◽  
Determine Property

Contemporary Kantians suggest that the original acquisition of property is problematic for Kant’s theory of private law. Kant requires that private law obligations be consistent with the equal freedom of everyone. However, a rule of original acquisition seems to favor the acquirer’s freedom over others’: the acquirer originally obtains property in an unowned object simply by taking control of it, and thus seems to impose obligations on everyone else (to respect the property right) through her own “unilateral” action or choice. This article first addresses proposed Kantian solutions to the supposed “unilateralism” problem, which involve the creation of a “civil condition” of public legal institutions to determine property rights. Such solutions make property rights a matter of distributive justice rather than corrective justice. Moreover, they cannot actually solve the unilateralism problem. But in any event, the supposed “unilateralism” problem is in fact no problem at all for Kant. This is because one person’s original acquisition does not limit others’ “freedom” in the Kantian sense of that term. In this respect Kant’s account of property is equivalent to Hegel’s, which contemporary Kantians have criticized for denying any problem of unilateralism. And both Kant and Hegel’s accounts are fully consistent with a theory that explains property as a matter of corrective, rather than distributive, justice.

The Law of Construction Privileges: Corrective Justice or Distributive Justice?

1989 ◽  
Vol 2 (1) ◽  
pp. 57-78 ◽  
Author(s):  
Gregory Bordan
Keyword(s):  
Distributive Justice ◽  
Corrective Justice ◽  
Legal Relation ◽  
Adequate Understanding ◽  
The Law

This paper explores how an adequate understanding of legal relations can be aided by, and sometimes requires, returning to the foundations of our conception of legal relations.The process of conceptualization is a process of revealing the form in legal relations. The two most fundamental forms of legal relations, first enunciated by Aristotle, are corrective justice and distributive justice. The thesis of this paper is that an analysis of legal relations can be coherent only if it is faithful to the form of justice appropriate to the particular legal relation under study.

scholarly journals Transitional Justice as a Path to Distributive Justice: A Jurisprudential and Legal Case for Land Restitution in Kenya

2016 ◽  
Vol 1 (1) ◽  
pp. 25-52
Author(s):  
Claude Kamau
Keyword(s):  
Distributive Justice ◽  
Transitional Justice ◽  
Corrective Justice ◽  
Land Access ◽  
National Crisis ◽  
Legal Case ◽  
Bona Fide ◽  
Access Rights ◽  
Principles Of Justice ◽  
Land Restitution

Rawls’ theory of distributive justice may serve as a useful model in conceptualizing a model of the ideal political economy – one that seeks to keep inequalities that have come about as a result of natural accident to a minimum. Moreover, his principles of justice can be used correctively, to address institutional inequalities that have the effect of entrenching social dislocation. Kenya has, over the decades up until now, been riven by injustices relating to land. This has led to the development of a small cluster of landed elites while the majority of citizens are effectively denied land access rights. This is regardless of the fact that most of the land so acquired by the former was acquired irregularly and with disregard of bona fide title of the original occupants. The concept and process of transitional justice may be viewed as the vehicle toward attaining corrective justice and accountability for offences committed in times of national crisis as a restorative measure.

Justice, corrective

2018 ◽  
Author(s):  
Ernest J. Weinrib
Keyword(s):  
Distributive Justice ◽  
Tort Law ◽  
Legal Liability ◽  
Corrective Justice ◽  
Theoretical Idea ◽  
Institutional Practice ◽  
The Law ◽  
The Relationship

In his treatment of justice Aristotle articulated a contrast between two forms of justice, corrective and distributive. The former deals with the rectification of an injustice inflicted by one person on another, the latter with the distribution of benefits or burdens. These forms of justice have differing structures. What informs distributive justice is the notion of comparison: a greater share goes to the more meritorious under the distributive criterion. What informs corrective justice is the notion of correlativity or mutuality: an injurer has inflicted wrongful harm on a victim if and only if the victim has suffered wrongful harm through the injurer’s conduct. The parties, as doer and sufferer of the same injustice, are the active and passive poles of a single wrong, which the law rectifies by holding the perpetrator liable to the victim. In recent decades corrective justice (along with its differentiation from distributive justice) has attracted the attention of legal theorists interested in tort law as a repository of normative judgements and insights about wrongful injuries. These theorists view the notion of correlativity as crucial for understanding the relationship between the plaintiff and the defendant. An emphasis on correlativity illuminates both the arguments that properly belong within a system of liability and the connection between corrective justice as a theoretical idea and legal liability as a familiar institutional practice. This entry outlines the role of corrective justice in contemporary tort theory.

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