Corrective Justice

365 Pages·2012·1.022 MB·English

by  Ernest J. Weinrib

OXFORD LEGAL PHILOSOPHY
Series Editors: TIMOTHY ENDICOTT , JOHN GARDNER ,
and LESLIE GREEN
Corrective Justice
OXFORD LEGAL PHILOSOPHY
Series Editors
Timothy Endicott, John Gardner, and Leslie Green
Oxford Legal Philosophy publishes the best new work in philosophically-
oriented legal theory. It commissions and solicits monographs in all
branches of the subject, including works on philosophical issues in
all areas of public and private law, and in the national, transnational,
and international realms; studies of the nature of law, legal institutions,
and legal reasoning; treatments of problems in political morality as
they bear on law; and explorations in the nature and development
of legal philosophy itself. The series represents diverse traditions of
thought but always with an emphasis on rigour and originality. It sets
the standard in contemporary jurisprudence.
Corrective Justice
E rnest J . W einrib
1
3
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To Lorraine
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Series Editors’ Preface
Ernest Weinrib is best-known for his 1995 monograph The Idea of
Private Law . Nobody who works in the theory of private law could
fail to be gripped by it or to be infl uenced by it. Although the main
ideas set out in that book had been explored by Weinrib in a series of
earlier articles, it was their synoptic presentation in book form that
had the greatest impact on the subject. For those who disagree with
its approach as much as for those who agree, The Idea of Private Law
inaugurated a new era in private law theory, marked by a new philo-
sophical energy amongst private law scholars and a revitalized interest
in private law categories amongst legal theorists.
In this new book, Weinrib collects important writings from the
period since T he Idea of Private Law (with signifi cant revisions and
additions). As well as nuancing and reinforcing his original claims,
Weinrib demonstrates their extensive reach. While the emphasis in
The Idea of Private Law was primarily upon the law of torts, and the
law relating to reparative damages for negligence in particular, this
new book gives extensive attention to other remedies (injunctions,
gain-based awards, etc.) and to other causes of action (breach of
contract, unjust enrichment). Nor do its horizons end with the pri-
vate law of municipal legal systems; in the last third of this book,
Weinrib shows us how fertile his distinctive patterns of thought can
be in other settings, such as in Jewish law, in the political theory of
the welfare state, and in the theory and practice of legal education.
Weinrib is one of the leading legal theorists of our era. His ideas, for all
their declared classical and Enlightenment origins, are b reathtakingly
viii series editors’ preface
original and far-reaching in their implications. We are proud to include
this important new work in O xford Legal Philosophy.
Timothy Endicott
John Gardner
Leslie Green
June 2012
Acknowledgments
Much of this book reworks, sometimes substantially, material that has
appeared in a variety of journals and edited volumes: “Correctively
Unjust Enrichment,” in Philosophical Foundations of the Law of Unjust
Enrichment, ed. Rob Chambers, Charles Mitchell, and James Penner
(Oxford University Press, 2009), 31–53; “Two Conceptions of Rem-
edies,” in J ustifying Private Law Remedies , ed. Charles Rickett (Hart
Publishing, 2008), 3–32; “Can Law Survive Legal Education?” (2007)
60 Vanderbilt Law Review 401–38; “The Disintegration of Duty,” in
Exploring Tort Law, ed. Stuart Madden (Cambridge University Press,
2005), 143–86; “Planting Another’s Field: Unrequested Improvements
under Jewish Law,” in Understanding Unjust Enrichment , ed. Jason
W. Neyers, Mitchell McInnes, and Stephen G. A. Pitel (Hart Publish-
ing, 2004), 221–46: “Punishment and Disgorgement as Contract Rem-
edies,” (2003) 78 Chicago-Kent Law Review 55–103; “Poverty and
Property in Kant’s System of Rights,” (2003) 78 Notre Dame Law
Review 795–828; “Correlativity, Personality and the Emerging Con-
sensus on Corrective Justice” (2001) 2 Theoretical Inquiries in Law
107–59; “Restitutionary Damages as Corrective Justice,” (2000) 1 The-
oretical Inquiries in Law 3–37. I am grateful to the publishers of these
articles for permission to make use of them for this volume.
I have been very fortunate in working for the last four decades at
the Faculty of Law, University of Toronto, which has become a major
centre for the theory of private law. There I have enjoyed the constant
benefi t of thoughtful and stimulating colleagues, enthusiastic but
skeptical students, and a series of supportive deans. A draft of this book
was the subject of the weekly discussions of the Faculty’s Law and