If corrective justice describes private law, does it also justify it?
Steve Hedley, University College Cork, for Moral Values and Private Law III, King’s College London, June 2014
Abstract: How does corrective justice leap from its account of private law, to a justification of that law – if it does? Differently put: Assuming (arguendo) that private law is, for the most part, adequately described as an example of corrective justice, does it follow that we should seek to make that law conform better with that conception? Why, indeed, oppose that law’s abolition (as by establishing a New Zealand-style compensation fund, or otherwise broadening social insurance)? Many do not make this leap: their corrective justice theories are defiantly descriptive, viscerally (if mutely) agnostic whether private law in its current form deserves to survive. Others try to find a path from their description of the law to a normative argument in its favour – yet their rejection of ‘politics’, and any arbitrary purpose for private law, ensures that those paths are tortuous. Those paths are the topic of this paper.
Private Law Theory as the search for meaning(?)
I arrived at this topic as part of a very general enquiry, into the theories and justifications put forward to explain modern private law. Modern private law theory is of course a diverse and confused landscape, where each participant tries to escape from the trackless technicalities of the law by infusing some kind of meaning: perhaps some generalisation that makes sense of a raft of detailed regulations, perhaps some value that the law seems to support, or should support. And so they each peddle their ‘explanation’ or ‘justification’ of the law, or even describe its ‘foundations’, against a clamour of competing assertions.
In a sense, this is all Jeremy Bentham’s fault – or at least he should be counted as one of the leading co-conspirators who have led us to this. By planting the idea that the law should in principle be clear, that apparent complications are almost certainly just obfuscation, and that the law’s proper rationale was not to be found inthe law books but outside them, he did the most to kill the idea of mystery in law[1]. Hardly anyone today believes that, despite its surface impenetrability, law conceals hidden pools of meaning and significance within its caverns: notions of that sort are lucky to survive the first semester at law school.Law’s technicalities are just that, technicalities – a sense of what they mean and when/whether they matter must come from elsewhere. As it is, we are caught in the positivist trap, whereby law can be, and for the most part is, expounded without any sense of what it is for, or whether it is ultimately of any value. We may eventually get around to asking whether the law we have so carefully described is a good law, but it is usually very late in the day before we do so. As Max Weber noted, ideas that entered the legal system as taken-for-granted value-judgments, lightly assumed and as lightly cast aside, have been transformed into an iron cage of hard legal rules,from which no easy escape is apparent[2]. And the neat, almost obvious, distinction between what the law is and what it should be has led inexorably to a neglect of the second at the expense of the first, as our understand of what the law is becomes ever more systematic and ‘scientific’, while the second leaves us bickering and floundering.
From one point of view, the modern resurgence in private law theory is simply the latest attempt to escape the iron cage, to restore some sense of meaning to a legal world from which positivism seems to have leached much of its colour andsignificance. We can define ‘private law theory’ as anything that dissuades us from thinking of private law as dry, technical or meaningless, or which denies the relentless message of legal history, that law develops as a succession of pragmatic compromises, each built on the last. But legal academics are by-and-large reactive thinkers, most likely to set out their point of view when it is by way of disputing someone else’s point – proving the other guy wrong is at least as importantas saying what is right. So theories of what private law is, or should be, about tend to be laid down in opposition to other theories.
Against that background, it is none too surprising that we see a significant body of opinion insisting that private law is for something – the resolution of disputes to achieve corrective justice – and that this is assumed somehow to contradict other accounts of it. The core question this paper asks is: what next? If private law is (for the most part at least) properly described as an exercise in corrective justice, what implications does this have for how we should act – indeed, does it have any? I suggest that the literature to date has suggested no very obvious implications, and the truth may be that there are none. Private law may be for a very limited range of purposes – perhaps even simply ‘to be private law’, as Ernest Weinrib famously said – but there is no principled reason against putting it to other uses. A book is for reading, but no moral ethical political or legal considerations prevent your using it as a paperweight – the arguments pro and con are mere matters of practicality. Is private law any different? If not, it seems that the apparent ‘conflict’ between corrective justice and law-and-economics may be largely bogus.
Law-and-Economics v. Corrective Justice: what kind of a dispute is this?
How to paint a landscape of modern private law theory? The overall picture has many characters, but for most people while there could in principle be many points of view, many competing explanations of the law, nonetheless one major conflict of opinionpredominates.
On the one side, we have those who argue that what explains or justifies private law is its value to the community at large.So it might be supported on utilitarian grounds, or economic, or community interests, or consequentialism of some sort: some variant of the proposition that society as a whole is better off with private law, in something like its current form, than it would be without it.On this view, we assess the system of private law much as we assess any other institution: are we all better off retaining it as it is, or does it require improvement, abolition or replacement?
The competing school thinks that this misses something. Law is misdescribed if we simply say that it’s good for us, much aseffective health care or regularly updated software aregood for us. Private law is a very particular way of approaching issues – it identifies the actual parties in dispute (leaving in the background the community from which they come), and it resolves the dispute between them, in accordance with what’s right and just between individuals.There’s not always agreement on what this type of justice – corrective justice – requires (there are as many views this as there are people with time to discuss it), but many contend that it is the right question to be asking.
To some it seems that these views conflict, and you can see this assumption all the time in writing on private law – people ask whether it is justice or the public interest that best explains some feature of the law, whether a particular doctrine is really just, whether efficiency is really the point given how rarely the judges mention it, and so forth.Dig a little deeper and you may begin to suspect the opposite – that there are many enquiries relevant to the law, its merits and its explanation, and that no one set of considerations can simply elbow the others out of the picture. We ask many things of the law, and neither side of the argument has captured them all.Most of us believe that the economy should run smoothly, all things being equal, but we also believe in justice – and while occasionally those two values are going to clash, we don’t really believe this happens very often. On this view, neither school can truly be said to have the upper hand, and indeed we might doubt whether they can truly be said to conflict – if indeed they are really discussing the same topic.
Both approaches have their attractions. But is there a genuine conflict betweenCorrective Justice andLaw-and-Economics?Is there some single question, or set of questions, which they can agree are worth asking, but to which they give different answers?Or is support for one side over the other to be read as a mere assertion of personal values or commitments?To take an analogy, we might imagine an apparently serious dispute over music, with one side arguing (say) that Damon Albarnis a better composer than Wolfgang Amadeus Mozart, the other side arguing the contrary. Such a dispute might, in principle, involve weighty consideration ofwhat constitutes good music, what is the composer’s true role, which musical techniques can properly be employed in music worth listening to, and so forth.But it probably won’t.More likely is that the argument on all sides will be mostly informed by personal preferences, by unvoiced prejudices, by a powerful yet inarticulate feeling that a universe without Damon (orWolfgang, according to taste) is a sadly deficient universe. What sort of a dispute is the dispute between Corrective Justice and Law-and-Economics?Is it, in fact, a serious dispute at all?
To approach this, I’d like to distinguish between two different aspects of private law theories or possible theories, namely their descriptive aspects and their normative aspects. To what extent are they theories of what the law is, and to what extent do they concern what the law should be?
As a foil, and to cut quickly to the issues in this paper, I can start from Stephen Smith’s classification of private law theories. Smithdivides theories about private law into four broad categories: theories are either historical, or prescriptive, or descriptive, or interpretive[3].To explain my position, I’d immediately make two modifications to this. Firstly (and as I’ve said elsewhere[4]), I’d strongly dispute that interpretive theories constitute a distinct category for this purpose. All of these theories are attempts to paint a convincing picture, to provide the best interpretation of their different subject-matters, and so they are all to an extent interpretive. What is interesting for current purposes is that, having decided that interpretive theories are to be the focus of his account, Smith then goes on to observe that we cannot take those theories much further without distinguishing two important matters they address: the question of what these theories stipulate about the law (which he calls the ‘analytic’ question) and the question of why they stipulate it (the ‘normative’ question)[5]. In other words, the same issue posed at the highest level of classification re-appears at the next level too: is the theory descriptive/historical, or is it prescriptive? This is part of the case that persuades me that it is better to ask simply whether theories are primarily descriptive (‘What?’), or whether they are primarily normative (‘Why?’).
The next point is that while pure types do exist, the theories most often pressed on modern readers seem to have both normative anddescriptive concerns. It is easiest to conceive of the pure types where the subject-matter does not touch us emotionally. It’s certainly possible to write a purely descriptive account of a legal matter in which the writer does not feels/he has a stake: perhaps because the issue is far away, or deep in the past, or apparently trivial. But the closer to home we come, the harder this gets. Where we are writing about matters precisely because they are important – as where we are seeking the purpose and justification of laws to which we have already devoted the bulk of our working lives – it is well-nigh impossible to distance ourselves from normative concerns. Honest theorists seek not to purge themselves of their normative views but rather to make them manifest, so that their readers can make whatever discount seems appropriate.
That being so, it seems more appropriate not to label individual theories as either ‘descriptive’ or ‘normative’– the more interesting ones will be both – but rather to say that we should ask in relation to each theory both what its normative agenda is, and what its descriptive agenda is.It is possible that one of the enquiriescomes up blank – as where a writer proposes a (normatively) desirable scheme for the law, while having no (descriptive) idea of what it currently is. But theories likely to attract significant support will usually turn out to be making both a normative and a descriptive case.
The groundwork having been laid, I now want to make a big generalisation about the actual scholarship in modern private law theory. I must stress that this is a generalisation about the scholarship as it actually is, not as it might potentially be, or as it might have been if legal thinkers were all writing according to a centrally-planned scheme, rather than each writing on whatever topic seems interestingto them.It is this: that when we consider the generality of the scholarship – the topics that people write about most, the areas where they are most at home – the central legal concerns of lawyer-economists are almost entirelynormative, whereas the central legal concerns of corrective justice theorists are almost entirelydescriptive. The bulk of the scholarship simply does not conflict: the corrective justice theorists are concerned to establish that the law is in fact properly characterised as an exercise in corrective justice (while disclaiming any view of whether this is a desirable state of affairs), whereas the lawyer-economists are concerned to establish whether the current state of the lawisdesirable in the public interest, perhaps by meeting the criterion of efficiency (while asking no other questions about how to characterise it).
If that is so, then it seems to follow that the two approaches do not, in fact, conflict very much. There is no choice to be made between the two: a demonstration that a particular doctrine is efficient does not of itself suggest that it neglects corrective justice, and conversely a demonstration that it follows corrective justice does not of itself suggest it is inefficient. The lawyer-economists, then, usually take the actual state of the law for granted (indeed, it would be hard to ask their kinds of questions if they could not),and ask whether it meets the standard they have set for it; the corrective justice theorists ask how the law itself can be viewed, and rarely ask whether invoking corrective justice is in any way more normatively desirable than the alternatives. Both theories could be right, and building a strong case for one does nothing to weaken the other.
In each instance, of course, there are those who venture out of the usual territory: corrective justice theorists who want to show that it is positively desirable to see the law as an example of corrective justice, and not simply accurate; and lawyer-economists who maintain that certain areas of law are, in fact, uniformly efficient as a matter of fact.This paper is primarily concerned with the former rather than the latter, but I will talk briefly about law-and-economics as a descriptive theory.
Economics:Efficiency as normative standard?
Law-and-economics is of course a broad church, and lawyer-economists have many concerns.But the general pattern of analysis is clear enough. The principal question that economists ask is whether the law is efficient or maximises wealth – and if this is demonstrably not so, then that is cause for doubting the law’s desirability[6]. More crudely, where the existing law points one way and economic analysis the other, it is the law that has the problem. How much of a problem, may be a matter of debate, of course. To a fundamentalist Chicagoan, perhaps, a clear finding of inefficiency should seal that law’s fate. To economists of a more liberal persuasion, it is not necessarily that simple:the law’s inefficiency may indicate that its goals are not purely economic, and while it would be the economist’s role to point to how the economic resources in question are being (mis-)used, s/he might still conclude that the law isappropriate even if National GDP is lower as a result. But these variations in view do not affect the basic point, that efficiency is not a description of the law, but rather the standard, or at least one standard, by which its legitimacy is assessed.Descriptive concerns fall by the wayside. It is no criticism of law-and-economics that it cannot explain the law’s focus on individual disputes; the question it asks is not where such features come from, but whether it is wise to allow them to continue[7]. And the often-repeated criticism of the discipline, that the courts do not speak the language of law-and-economics, misses the point entirely – the lawyer-economists do not care what language the legal system speaks, only whether it is doing the right thing.
This is in a sense a surprising conclusion, as economics is pre-eminently a descriptive decline: it describes human conduct by appealing to economic rationality.But the path from modelling human conduct to modelling human laws has turned out to be a difficult one, as it is rarely obvious which laws an economically rational law-giver would lay down. This is the paradox of mainstream law-and-economics, that it seeks to say what laws should be laid down by a wise legislature to benefit us all, while simultaneously maintaining that legislators (like everyone else) are in factmotivated not by wisdom or a wish to benefit others, but rather by the dictates of economic rationality. So while the lawyer-economists are free with their prescriptions, they often have no great expectation that they will be followed. They are the Cassandras of the law, constantly pointing out where it has fallen into error, in the knowledge that by their own theory it would be surprising if much attention were paid to their warnings.