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Canadian Journal of Law and Jurisprudence (2010) 23: 233–247 ... Izhak Englard, a prominent tort scholar and a former justice of the Supreme Court of. Israel ...

1 Canadian Journal of Law and Jurisprudence (2010) 23: 233–247 Note: This is the author’s final version, not the official publication.

The Third Form of Justice Book Review of Izhak Englard, Corrective Justice and Distributive Justice: From Aristotle to Modern Times (Oxford University Press, 2009), 256 pp.

INTRODUCTION Izhak Englard, 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.”1 The fundamental distinction is set forth in the fifth book of Aristotle’s Nicomachean Ethics.2 Corrective (commutative, rectificatory) justice is defined therein as a rectification of harm, wrongfully caused by one person to another, by means of a direct transfer of resources from the injurer to the victim. Corrective justice assumes an initial equality between the parties and aims at restoring that equality whenever it is undermined by a wrongful act.



ix (2009). 2

ARISTOTLE, NICOMACHEAN ETHICS 1130b30–33 (David Ross trans., rev. ed. 1980). 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 ST. THOMAS AQUINAS, COMMENTARY ARISTOTLE’S NICOMACHEAN ETHICS (C.I. Litzinger trans., 1964).



The extent of the transfer must equal the harm caused (“arithmetic proportion”).3 Distributive justice is defined as allocation of resources or burdens in accordance with the relative merit of each participant, which is determined by a general political criterion. It aligns each person’s share of the resources, or burdens, with that person’s merit. It strives for “geometric proportion,” namely equality of ratios. If Jack’s merit is m1 and Jill’s merit is m2, and if Jack’s share is s1 and Jill’s is s2, distributive justice only prescribes that m1/m2=s1/s2, or s1/m1=s2/m2.4 In a very simplistic way distributive justice is oriented towards creating a new state of affairs, and corrective justice aims to restore a certain equilibrium.5 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,”6 the millennial treatment of the Aristotelian distinction has been disregarded in recent times.7 This may be attributed in part to the gradual transition of the centers of Western thought from continental Europe to England and North America, accompanied by the demise of Latin,8 and the rise of English as the new lingua franca. The book thus serves a very important goal. It brings the cumulative knowledge to the


Id. at 1131b25–1132b20.


Id. at 1131a15–b24.


ENGLARD, supra note 1, at xi.


Id. at xii.


Id. at 189.


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.


3 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.9 I agree that a thematic analysis might be complicated given the interrelation between the various questions which arise with respect to the Aristotelian distinction. Nonetheless, one can break down Englard’s sequential analysis of discrete manuscripts and extract fascinating inter-temporal debates on concrete questions that have occupied the minds of Western thinkers for centuries.

While points of view and emphases vary, the fundamental

inquiries have remained quite similar over time. One of the main themes of the book is the controversy inspired by Jean Buridan’s view that there is no essential difference between the two types of justice.10 Subsequent writers have endeavored to either refute this perception or invalidate refutation attempts. Arguably, the difference between the two forms of justice hinges on the difference between arithmetic and geometric proportions.11

But this distinction may prove

unsatisfactory if arithmetic proportion is applied in paradigmatic distributive justice settings, and geometric proportion is applied in paradigmatic corrective justice settings. For example, attributing a single benefit to a single person according to that person’s merit might seem an exercise of distributive justice in accordance with arithmetic 9

Id. at xii.


Id. at 25; see also id. at 59–60 (“the virtue that lies at the base of the two forms is identical.”). For a

criticism of Buridan see, e.g., id. at 30, 34–35, 36, 37, 38, 39, 40, 42–43, 56, 61. 11

Id. at 165, 210.


proportion. Some conclude that the application of arithmetic proportion in distributive justice is possible though accidental.12 Others believe that given the application of arithmetic proportion this is inevitably a case of corrective justice.13


distribution of an insolvent debtor’s assets among a plurality of creditors might seem an exercise of corrective justice in accordance with geometric proportion. Some contend that the application of geometric proportion in corrective justice is (once again) accidental.14

Others claim that the application of geometric proportion necessarily

implies an exercise of distributive justice.15 A second and very common argument against Buridan’s skepticism was that the two forms of justice differ in the intensity of the claim that they support. Accordingly, a perfect right–duty relationship exists only under corrective justice, whereas distributive justice creates a much weaker claim against the distributor.16 This novelty stimulated a lively debate that has waned only in recent times. Weaker bases for the Aristotelian distinction are the argument that distributive justice concerns only public goods, while corrective justice concerns private goods,17 and the related argument that in distributive 12

Id. at 53, 54, 57, 65, 67, 144.


Id. at 40.


Id. at 54–55, 58, 61–62, 68, 74.


Id. at 53–54. For a slightly different view see id. 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

Id. at 27, 29, 33, 43, 49, 50, 51, 53, 55, 56, 57, 61, 63, 67, 68, 69, 70, 71, 73, 75, 143–44, 165, 167,

179, 210. For a different view see id. at 60, 64–65, 77. 17

Id. at 164.


5 justice the community deals with a private person, whereas in corrective justice private persons deal with other private persons.18

However, as Hugo Grotious correctly

observed, private goods may be distributed by private persons in accordance with distributive justice, as in the case of bequest, and public goods can be transferred by the state in accordance with corrective justice, as in the case of reimbursement of expenses incurred in the public service.19 Another important theme of the book, and the only one to which Englard dedicates an independent chapter, is the relation between the two forms of justice and divine justice. A central question in Christian theology was whether in punishing evil and rewarding good divinity exercises corrective justice, distributive justice, or neither.20 This debate has generated an extensive literature,21 but unsurprisingly lost much of its intensity in post-scholastic times.22 In this Review I would like to focus on a third theme that runs 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. Retribution may be defined as imposing a sanction that corresponds to individual moral


Id. at 165 (citing a dissertation from 1670).


Id. at 145.


Id. at 79–110, 116.


Id. at 101.


Id. at 102.


desert.23 Retributive justice does not require that the sanction be identical to the wrong committed, unlike the ancient lex talionis;24 it merely insists on proportionality between the severity of the sanction and the gravity of the wrong.25 The sanction must be fair in light of the conceptual and concrete features of the wrong for which it is imposed.26 The fairness of a legal sanction is determined by two complementary principles: cardinal – or


See George P. Fletcher, The Place of Victims in the Theory of Retribution, 3 BUFF. CRIM. L. REV. 51,

52 (1999) (“[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 913 (6th ed. 1990). 25

Peter Cane, Retribution, Proportionality, and Moral Luck in Tort Law, in THE LAW OF OBLIGATIONS

141, 143, 160–61 (Peter Cane & Jane Stepleton eds., 1998); Tony Honoré, The Morality of Tort Law – Questions and Answers, in PHILOSOPHICAL FOUNDATIONS


TORT LAW 73, 87 (David G. Owen ed., 1995)

[hereinafter 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); TONY HONORÉ, RESPONSIBILITY AND FAULT 13, 83–84, 92, 123, 138 (1999) [hereinafter HONORÉ, RESPONSIBILITY] (recognizing that the principle of retribution requires that a penalty should not be disproportionate to the moral gravity of the offence); Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. REV. 1659, 1690 (1992); Jeffrie G. Murphy, Does Kant Have a Theory of Punishment?, 87 COLUM. L. REV. 509, 530–32 (1987); Andrew E. Taslitz, The Inadequacies of Civil Society: Law's Complementary Role in Regulating Harmful Speech, 1 MARGINS 305, 335 (2001); Note, Punitive Damages and Libel Law, 98 HARV. L. REV. 847, 851 (1985) (“Fairness demands that the punishment be proportionate to the severity of the act.”). 26

Honoré, The Morality of Tort, 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.” Id. at 87.


7 absolute – proportionality, and ordinal – or relative – proportionality.27 According to the principle of cardinal proportionality, the sanction should not be excessive or too lenient with respect to the absolute gravity of the wrong committed.28 For example, it seems unfair to impose a life sentence on a person who did not pay for parking; similarly, it seems unfair to impose a small fine on a cold-blooded murderer. According to the principle of ordinal proportionality, the sanction imposed for a certain wrong must reflect the relative gravity of the wrong: if wrong α is more serious than wrong β, the sanction for wrong α must be more severe than the sanction for wrong β, and vice versa.29 For example, the punishment for murder must always be more severe than the punishment for non-payment for parking. Although retribution, or just desert, is currently perceived as one of the most prominent theoretical justifications of criminal punishment,30 most scholars that Englard refers to treat punishment and retribution as synonymous. They define punishment in 27





SANCTIONS 29–46 (1993); ANDREW




FUTURE CRIMES: DESERVEDNESS AND DANGEROUSNESS IN THE SENTENCING OF CRIMINALS 40–46 (1985); Cane, supra note 25, at 143, 161; Dorsey D. Ellis, Jr., Fairness and Efficiency in the Law of Punitive Damages, 56 S. CAL. L. REV. 1, 6–7 (1982). 28 29 30

See Cane, supra note 25, at 143. Id. Paul Butler, Retribution, For Liberals, 46 UCLA L. REV. 1873, 1874 (1999); Michele Cotton, Back

with a Vengeance: The Resilience of Retribution as an Articulated Purpose of Criminal Punishment, 37 AM. CRIM. L. REV. 1313, 1315 (2000); Gary T. Schwartz, Mixed Theories of Tort Law:

Affirming Both

Deterrence and Corrective Justice, 75 TEX. L. REV. 1801, 1811–12 (1997). Other popular justifications for criminal liability are deterrence, rehabilitation or treatment, and incapacitation. Cotton, supra, at 1315.


retributive terms, namely as the imposition of a sanction that fits the gravity of the wrong. Hence in attempting to place punishment within the Aristotelian framework, they essentially discuss the relation between retribution as a form of justice and the two Aristotelian forms. Following a short presentation of the Aristotelian text, I utilize 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.31 I. THE ARISTOTELIAN TEXT After discussing the two forms of justice, Aristotle remarks that the Pythagoreans defined justice “without qualification” as reciprocity.32

The Pythagorean idea of

reciprocity denotes lex talionis, the law of identical and direct retaliation, which posits “should a man suffer what he did, right justice would be done.”33 Aristotle contends that this general notion of reciprocity fits neither distributive nor corrective justice,34 although he does not thoroughly explain his assertion.

He merely endeavors to

demonstrate that reciprocity—in the sense of lex talionis—may be at odds with corrective justice. In his view, if an officer strikes a man, it is wrong for the man to


Cf. ENGLARD, supra note 1, at 9–10 (defining the various positions differently).


ARISTOTLE, supra note 2, at 1132b21–23.


Id. at 1132b24–27.


Id. at 1132b23–27.


9 strike him back, and if a man strikes an officer, it is not enough for the officer to strike him, but he ought to be punished as well, even though striking back is the appropriate response in both cases according to the Pythagorean principle of reciprocity.35 Aristotle makes no attempt to explain why reciprocity is inconsistent with distributive justice, possibly because he finds this obvious.36 Still, Aristotle admits that a qualified application of a refined version of the principle of reciprocity may be deemed just. He maintains that in associations for exchange (i.e. voluntary transactions), reciprocity in accordance with a proportion (i.e. proportionate return), and not on the basis of precisely equal return, holds men together.37 In his subsequent discussion of proportionate return Aristotle apparently reduces the notion of reciprocity to a principle of fair bargaining.

Arguably, this principle conforms to

corrective justice, in its broad sense, as it shows how to rectify the social imbalance created by one-sided performance in voluntary bilateral transactions.38


Aristotle seems to recognize that the idea of proportionate return is also applicable to involuntary transactions, wherein one person wrongs another. This may be inferred from the following paragraph:


Id. at 1132b28–31.



ETHICS 179, 186 (Richard Kraut ed., 2006). 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

Gabriel Danzig, The Political Character of Aristotelian Reciprocity, 95 CLASSICAL PHILOLOGY 399,

408–11 (2000).


For it is by proportionate requital that the city holds together. Men seek to return either evil for evil—and if they cannot do so, think their position mere slavery—or good for good—and if they cannot do so there is no exchange, but it is by exchange that they hold together.39 The first sentence restates Aristotle’s divergence from the ancient lex talionis: reciprocity requires proportionate requital, not an identical response.

The second

sentence consists of two parts; the second part applies the principle of proportionate requital to voluntary exchange. The first part seems to apply the same principle to wrongdoing: people seek to return evil for evil, yet the response ought to be proportionate to the initial evil. If this statement refers only to the victim’s need for reparation, it squarely coincides with corrective justice. But if it refers to the public need for retaliation, it may well be an underdeveloped retributive intuition.40 Aristotle does not elaborate on the subject.

His discussion of reciprocity has always presented

problems of interpretation, and there has never been a consensus as to what reciprocity is or how it is related to the overall topic of justice.41 II. RETRIBUTION IS PART OF CORRECTIVE JUSTICE Two theories associating retribution with corrective justice emerged in Christian theological literature. The first was advocated by Thomas Aquinas and his disciples.


ARISTOTLE, supra note 2, at 1132b33–1133a5.


See Jeremy Waldron, Does Law Promise Justice?, 17 GA. ST. U. L. REV. 759, 772 (2001) (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.


11 The second was initially expounded by Francisco Suárez. I will begin with the latter, because although it is more recent it can be more easily brushed aside. Suárez opined that punishment by a judicial authority is an act of corrective justice, because the judge is duty-bound to exercise penal jurisdiction in the framework of his assumed judicial task.42 The judge owes this duty to the state under an express or implied contract,43 and may be held liable for the state’s damage in case of breach.44 This view was relatively common among 16th- through 18th-century theologians.45 Others added that the judge owes a parallel duty to the victim to adequately punish the delinquent, entitling the victim to compensation for any damage caused by noncompliance. 46 Finally, some contended that in addition to the judge’s duty to the victim not to impose too lenient a punishment, the judge owes a duty to the offender not to impose excessive punishment.47 Breach entitles the offender to restitution. The main problem with all versions of this theory is that they do not determine which of the two forms of justice, if either, is actually employed in meting out punishment. Put differently, assuming that the judge has an obligation (to the state, the victim, or the delinquent) to punish the offender adequately, what form of


ENGLARD, supra note 1, at 33.


Id. at 89.


Id. at 50.


E.g., Ferdinand de Castro Palao (id. at 49), John Ponce (id. at 55), Augustinus Reding von Biberegg

(id. at 62), Ewaldus Marchius (id. at 63), Florentius de Cocq (id. at 68), Simon Karchne (id. at 68), and Anton Mayr (id. at 74); see also id. at 163 n.703, 167. 46

Id. at 50, 72.


Id. at 61, 72.


justice must he employ to fulfill his obligation: corrective justice, distributive justice, neither, or both? The intrinsic nature of punishment remains obscure. A somewhat stronger theory posits that retribution is part of the rectification of a bilateral wrong. Many writers noticed the apparent contradiction between Aristotle’s statement that corrective justice looks only at the nature of the damage, treating the parties as equal, and his subsequent argument that hitting an officer entails a more severe sanction than hitting an ordinary person. Aquinas explained that corrective justice aims to compensate the victim for the damage, and that in cases of bodily injury the extent of the damage might differ according to the victim’s social status.48

This view was

endorsed by many Christian49 as well as Jewish scholars,50 and may have precursors in Muslim literature.51 More importantly, the victim’s social status may have a bearing on the extent of the damage to the community or the state.52 If corrective justice aims to rectify this injury to society, it may arguably include retribution. Indeed, according to Aquinas retribution is embedded in corrective justice: rectification of wrongful conduct must take into account the fact that injury has been caused not only to a private person, but also to the state or to the public at large through


Id. at 17–18.


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


See, e.g., id. at 113–14 (discussing Josef Ibn Shem Tov), 114–15 (discussing Yizhaq Arama).


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. Id. at 12. 52

Id. at 17 (citing Aquinas); see also id. at 14 (citing Albertus Magnus), 133 (citing John Case).


13 violation of their interest in individual security.53 Punishment rectifies the public injury associated with the private injury. Moreover, the punishment must fit the wrong, not in the Pythagorean sense of exact replication, but in the sense of proportionate return: the severity of the punishment must be proportional to the gravity of the wrong,54 taking into account the specific circumstances of the case, such as the victim’s status, the perpetrator’s state of mind, and other aggravating or mitigating circumstances.55 Put differently, punishment is meted out in accordance with arithmetic proportion, which characterizes corrective justice.56 The idea that punishment forms part of corrective justice because it conforms to arithmetic proportion was endorsed by many scholastics and post-scholastics.57 Several authors combined this perception with that of Suárez. For example, Vincent-Louis Gotti opined that the offender, by suffering the punishment, renders the just and the equivalent to the victim, to the state, and to the law, and that if vindictive justice is applied by a judge, it belongs to corrective justice because the judge is legally bound to administer punitive justice.58


Id. at 19–20.


Id. at 20.


Id. at 44–45 (analyzing Tarquinio Galluzzi).


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


E.g., Domingo de Soto (id. at 30), Louis de Molina (id. at 38), Petrus de Aragon (id.), Franciscus

Pavonius (id. at 52–53), Daniello Concina (id. at 75), Valentin Wudrian (id. at 136), and Johannes Michael Gutbier (id. at 137–38). 58

Id. at 73.


Despite its professed appeal, this theory must also be rejected. Even if we accept that a civil wrong has a private element and a public element, rectifying a private harm ensuing from a given wrong is different from a retributive attempt to annul its public aspect. Once it is undisputed that a wrong has been committed, corrective justice and retributive justice operate separately59 and differently. First, corrective justice, unlike retributive justice, ignores the gravity of a person’s conduct if it has caused no harm to that person’s legal adversary. Causation of harm is central to the application of corrective justice.60 Aristotle states quite plainly that “the law looks only to the distinctive character of the injury, and treats the parties as equal, if one is in the wrong and the other is being wronged, and if one inflicted injury and the other has received it.”61

Consequently, if both A and B expose C to identical

unreasonable risks, but only the risk created by A materializes, corrective justice dictates


Cf. id. 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



WRONGS 348, 354, 365, 367 (1992); Jules Coleman, The

Practice of Corrective justice 37 ARIZ. L. REV. 15, 15, 26, 30 (1995); 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.”); Richard W. Wright, Actual Causation v. Probalistic Linkage: The Bane of Economic Analysis, 14 J. LEG. STUD. 435, 435 (1985). 61

ARISTOTLE, supra note 2, at 1132a2–1132a6.


15 that C may sue A, but not B.62 A retributive model would not tolerate B’s impunity, at least if B knowingly created a significant risk.63 The causation-of-harm requirement in most perceptions of corrective justice makes it inherently incompatible with retributive justice. Second, even where wrongful conduct results in harm, the extent of damages under corrective justice is determined by the fortuitous amount of the victim’s loss, which is usually a poor measure of the gravity of the wrong.64 The extent of corrective liability may be incompatible with the principles of cardinal and ordinal proportionality. A slight and absentminded deviation from the objective standard of care may result in serious injury and may therefore lead to extensive liability. This outcome seems to violate the retributive principle of cardinal proportionality. A similar violation of this principle 62



PRIVATE LAW 155–56 (1995). But cf. Christopher H. Schroeder,

Corrective Justice, Liability for Risks, and Tort Law, 38 UCLA L. REV. 143, 143–44 (1990) (contending that corrective justice may be compatible with liability for the creation of risk); Christopher H. Schroeder, Corrective Justice and Liability for Increasing Risks, 37 UCLA L. REV. 439, passim (1990) (same). 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


142; John G. Fleming, The Collateral Source Rule and Loss Allocation in Tort Law, 54 CAL. L. REV. 1478, 1483–84 (1966); David G. Owen, Deterrence and Desert in Tort: A Comment, 73 CAL. L. REV. 665, 668–69 (1985); Stephen R. Perry, The Moral Foundations of Tort Law, 77 IOWA L. REV. 449, 470 (1992); Gary T. Schwartz, The Ethics and the Economics of Tort Liability Insurance, 75 CORNELL L. REV. 313, 327 (1990); Steven D. Smith, The Critics and The "Crisis": A Reassessment of Current Conceptions of Tort Law, 72


occurs where a considerable and knowing deviation from the standard of care results in a trivial injury. Furthermore, a loss-based sanctioning system violates the principle of ordinal proportionality. Assume that A negligently injures B, and C negligently injures D, and that B’s physical injury is identical to D’s injury.

If A and C committed

indistinguishable wrongful acts, but B’s earning capacity is higher than D’s, then retributive justice would demand similar sanctions on A and C; whereas corrective justice will impose a greater monetary sanction on A. Yet if B and D have equal earning capacities, but A’s conduct is more culpable than C’s, then retributive justice mandates a stricter sanction on A, while corrective justice imposes similar sanctions on A and C. Third, corrective justice focuses on a bilateral relationship, a “transaction between man and man.”65 The basis for the implementation of corrective justice is a wrong committed by one person against another, and the essence of corrective justice is that the latter acquires a direct claim against the former. This immediate juridical link between the wrongdoer and the victim, a fundamental structural feature of corrective justice, is absent in retribution. Retributive justice focuses on a single person—the offender, not on that person’s legal relationship with the victim.66 It is concerned, perhaps, with the

CORNELL L. REV. 765, 776–77 (1987); Stephen D. Sugarman, Doing Away with Tort Law, 73 CAL. L. REV. 555, 610 (1985); Richard W. Wright, Substantive Corrective Justice, 77 IOWA L. REV. 625, 668 (1992). 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 Ernest J. Weinrib, Punishment and Disgorgement as Contract Remedies, 78 CHI.-KENT L. REV.

55, 86 (2003).


17 aggregate societal outrage, dissatisfaction, and loss of confidence ensuing from the wrongful conduct. Even so, it does not create a direct link between the wrongdoer and any person who may be deemed a victim of the wrong.67 Fourth, and closely related, corrective justice entails rectification of the wrongful harm through a direct transfer of resources from the wrongdoer to the victim: “the judge restores equality; it is as though there were a line divided into unequal parts, and he took away that by which the greater segment exceeds the half, and added it to the smaller segment.”68 Punishment is not a transfer from the offender to the victim, as Ferdinandus de Castro Palao69 and Giambattisma Vico correctly observed.70 The victim recovers nothing.71 Even if we can perceive punishment as a symbolic rectification of the public injury, the typical form of punishment, namely incarceration, involves no real transfer.72 Neither the state, nor the public, nor any member of the community receives any resources from the wrongdoer.


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.


Id. at 157.


See also id. at 48 (citing Paul Laymann), 161–62 n.703 (citing Dominus Virgilius Maurer).


See id. 173 (citing a dissertation from 1750).


Fifth, in the implementation of retributive justice, both the gravity of the offense and the exact nature of the sanction that fits an offense of that gravity are determined with reference to the characteristics of the specific offender. As to the gravity of the offense, Paul Lapie noted that punishment explicitly takes into account the perpetrator’s mental state hence his or her ethical dignity.73 As to the nature of the sanction, Johannes Voet observed that punishment takes into consideration age, origin, sex, dignity, and so on, because imposing the same sanction on different offenders may have a different impact on them.74 If the punishment is to fit the crime, it must be adjusted to the specific offender. Taking into account the offender’s personal traits seems inconsistent with the very essence of corrective justice, which “looks only to the distinctive character of the injury, and treats the parties as equal.”75 An additional yet unconvincing criticism was that in relation to the offender punishment cannot be an act of corrective justice because the offender does not have a right to be punished.76 Grotius opined that if something is properly owed to someone, he has a right against another. But when we say that punishment is due to some person we mean nothing more than that is proper for him to be punished. He has no right to be


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


Id. at 160; see also id. at 137.


See also id. 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. Id. at 160. 76

Id. at 49.


19 punished.77 This argument is unconvincing because those who claim that punishment is embedded in corrective justice do not say that the offender has a right to be punished, but a duty to make amends, in part through bearing the punishment. Grotius himself held that the punisher has a right to punish, because one who does wrong, knowing that the wrong yields a particular punishment, has obligated himself to that punishment.78 Still, Samuel Pufendorf criticized this view on two grounds. First, corrective justice deals with a person’s right to receive something (namely the right that someone else will do something), not with a person’s right to do something.79 Second, a criminal does not give his consent to his own punishment, and always has the hope of evading penalty.80 III. RETRIBUTION IS PART OF DISTRIBUTIVE JUSTICE Johannes Duns Scotus opined that punitive justice must be distinguished from corrective justice because it is exercised neither for the sake of the punished nor for that of the punisher, but for the sake of the law and the public good.81 He concluded that punitive justice falls into distributive justice.82 Some endorsed this classification without explanation.83

Scholars who endeavored to justify this view usually observed that


Id. at 146; see also id. at 157 (citing Giambattista Vico).


Id. at 146.


Id. at 152.


Id. 152–53; see also id. at 49–50 (citing Juan de Dicastillo, who stated that neither the state nor the

judge, acting for the latter, have a commutative justice right toward the delinquent obliging him not to sin). 81

Id. at 21.


Id. at 23, 36, 210.


See, e.g., id. at 39 n.146, 76.


punishing is tantamount to distributing sanctions in accordance with the criminals’ relative desert: the graver the crime, the more severe the punishment.84 Englard found that many authors, among them more modern ones, tended to classify punishment under distributive justice because the penalty is proportional to the offense.85 Under this view, distributive justice has two functions: distributing benefits such as public offices (iustitia remunerativa), and distributing detriments such as punishments (iustitia punitiva).86 A related argument is that punishment takes into account the offender’s personal traits, e.g. mental state—hence ethical dignity,87 financial status (because taking a nickel from a poor man might be more serious than taking a dollar from a rich man),88 and social status (an offense committed by a public officer may be graver than that of a private person),89 and the repetitive or isolated nature of the conduct (higher frequency entails harsher punishment).90

This is characteristic of distributive justice, and is

explicitly excluded in corrective justice. Others opined that meting out punishment falls


See, e.g., id. at 37, 125, 139, 162 n.703.


Id. at 78.


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

Voet). 87

Id. at 182 (citing Paul Lapie).


Id. at 139 (citing Georgius–Fridericus Rosa).

89 90

Id. Id.; see also id. 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).


21 under the heading of distributive justice because it is the privilege of the sovereign or of the magistrate.91 According to the view under scrutiny, where a wrongful conduct causes harm to a specific person, one must distinguish between the private wrong and the public wrong. The direct victim clearly has a corrective justice right to compensation. But this does not change the nature of public retribution. In addition to the victim’s right, the state can impose punishment in accordance with the principle of distributive justice (and geometric proportion).92 The association of retribution with distributive justice is also untenable.


possible criticism is that in punishing offenders no common goods are distributed;93 punishment is not a property of the state that can be distributed among the citizens.94 This argument conforms to Aristotle’s explicit wording. When he describes distributive justice he speaks of “distribution of honor, wealth, and the other divisible assets of the community, which may be allotted among its members.”95 He only refers to benefits possessed by the community. Punishments are implicitly excluded. However, it is


Id. at 72 (citing Hyacintus Chalvet).


This point is emphasized by Fernandus Rebellus (id. at 36–37), Antoine de Waele (id. at 139), and

Franco Burgersdijck (id. at 140). 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). Id. at 143. 93

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


Id. at 136 (citing Valentin Wudrian).


ARISTOTLE, supra note 2, at 1130b31–32.


widely held that distributive justice may apply not only to benefits currently possessed by the distributor, but also to burdens.96 Otherwise distributive justice loses a significant segment of its natural sphere of application. In a typical exercise of distributive justice a divisible benefit or burden is distributed among several persons in accordance with their relative merit. implementation of retributive justice nothing is distributed.

In a specific

The court allocates an

indivisible burden to a single person. Aristotle made clear that “justice involves at least four terms, namely, two persons for whom it is just and two shares which are just.”97 Petrus Barbay reiterated that proportion requires at least four elements: two things (“shares”) and two persons, and concluded that this condition is absent in punishment, where the equality is merely between crime and punishment.98 This probably reflects Aquinas’ observation that distributive justice requires proportion between persons and things, whereas retribution requires proportion between things (crime and punishment).99 We have seen that at least according to one view, attributing a single benefit to a single person is possible within distributive justice. Arguably, this may also be true with regard to the allocation of a single burden to a single person. But this is possible only if various persons compete for a single indivisible benefit (or burden), and one is more deserving than all others. In the case of punishment, not only is the burden indivisible, but it is not 96

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


ARISTOTLE, supra note 2, at 1131a6–1131a27. Aristotle further states that the “just involves at least

four terms, and the ratio between one pair is the same as that between the other pair.” Id. at 1131b1-1131b14. 98

ENGLARD, supra note 1, at 66.


Id. at 19.


23 attributed on the basis of relative merit: The court does not compare the specific offender with others to determine who will attain the burden. Only one person is a candidate for punishment. There are no other contestants. Therefore, the act of punishing in a specific case cannot be regarded as an implementation of distributive justice. However, those who associate retribution with distributive justice refer not to the allocation of punishment in a particular case, but rather to a distribution of all punishments among all offenders in accordance with geometric proportion: the greater the sin, the heavier the punishment. Grotius found this argument unconvincing, stating that geometric proportion in punishment is incidental, not intended: the punishment in each case must fit the crime in an arithmetic sense, so naturally graver crimes entail harsher sanctions, and geometric proportion between crimes and punishments ensues.100 Pufendorf endorsed this observation.101 More importantly, there is a fundamental difference between a just allocation of sanctions according to the principle of retribution and a just distribution in the Aristotelian sense. Distributive justice deals with the distribution of certain benefits or burdens among certain persons. If one of the participants in an Aristotelian distribution got too much, there is at least one other participant who got too little. Amending a distributive injustice requires a transfer from those who received too much to those who received too little. Conversely, in a retributive allocation of sanctions the class of persons who may deserve punishment for wrongful conduct is indeterminate, and there is


Id. at 145.


Id. at 152.


no given burden that has to be distributed. Each wrongdoer must get due punishment; an unfair punishment in one case does not swell or shrink the pool of sanctions available for other cases. The fact that one person has been punished excessively or too leniently does not mean that it will be impossible to impose just sanctions on others. Finally, distributive justice entails a transfer from or to the distributor. In the case of distributing benefits, the distributor transfers something to the distributees. In the case of distributing burdens, the distributor receives something from the distributees. In the case of punishment, no transfer is required. Nothing is given by or to the punisher in case of incarceration, capital punishment, and the like. IV. RETRIBUTION IS PART OF BOTH FORMS Two theories conceive of punishment as an amalgam of the two Aristotelian forms of justice. The first combines the general views of Suárez and Scotus. The different versions of this theory correspond to the different offshoots of Suárez’s position. For instance, Juan De Lugo opined that a punishment that exceeds the measure of the delict violates corrective justice, since it infringes the defendant’s strict right to his life and bodily integrity, and at the same time violates distributive justice, which requires a punishment according to merit.102 Similarly, the author of an academic dissertation defended at the Catholic University of Salzburg in 1667 opined that the judge is obliged by contract to impose punishment for the common good, and for the protection of citizens from crimes, and violation of this obligation generates a corrective justice duty to pay damages. Yet the very task of imposing punishment in proportion of the delict


25 may be considered an act of distributive justice, since it is executed in the name of the community.103 According to these views punishment is not genuinely a mixture of the two forms of justice. It is basically a manifestation of distributive justice as per Scotus, and the judge simply has a corrective justice duty to the state, the offender, the victim or any combination thereof to comply with the distributive yardstick. Hence any criticism of the association of retribution with distributive justice is equally applicable here. The second, more interesting theory posits that punishment in se, namely the form of justice that is applied with respect to the offender, is a mixture of corrective justice and distributive justice. This general theory has various versions. For example, Wolfgang Heider found that punishment conforms to corrective justice, because it must correspond exactly to the offense (as per Aquinas), but can also be classified under distributive justice, because it takes into account a person’s merits.104 Nicolaus Agricola maintained that the law sets the standards of conduct in accordance with distributive justice; but once a legal standard has been established, its violation calls for a reaction in accordance with corrective justice.105

A few authors even endorsed a combination of Suárez,

Aquinas, and Scotus. For instance, Honoré Tournély opined that punishment pertains to distributive justice, because the offender’s suffering in relation to another person is 102

Id. at 51.


Id. at 166.


Id. at 132. For further examples see, e.g., id. at 67 (citing Jacques Channevelle), 142–43 (citing

Adrianus Heereboord). 105

Id. 128; see also id. at 164–65 (citing a dissertation which endorses a similar view).


proportional to the injury caused by him. Punishment also belongs to corrective justice, because the punishment is equal to the guilt. Finally, the judge is bound by his office to impose the punishment.106 Alas, as explained above, retribution is incompatible with either of the two Aristotelian forms. Hence it cannot be a manifestation of both. V. RETRIBUTION IS A THIRD FORM OF JUSTICE The remaining position on the nature of retributive justice derives from the accumulated criticism of Aquinas and Scotus. If retribution pertains neither to corrective justice nor to distributive justice, it is inevitably an independent form of justice, or at least a derivative of some third form, unrecognized or undeveloped in the Nichomachean Ethics. Many theologians, philosophers, and legal theorists from the high period of scholasticism to recent times ultimately endorsed this view. Domenico Cavalca was probably the first to hold that vindictive justice was a third form of justice. Interestingly, he found that Christ demonstrated all three forms of justice on the cross.107


prominent early-modern jurist and philosopher Pufendorf similarly concluded, following a lengthy criticism of the association of punishment with the Aristotelian forms of justice, that punishment was a different form.108 Some found similarity between retribution and the Aristotelian forms of justice but concluded that the affinity was incomplete, for one or more of the reasons set forth in


Id. at 69.


Id. at 24.


Id. at 151–53; see also id. at 49–50 (citing Juan de Dicastillo) 69, (citing Domenico Viva), 167

(citing a dissertation).


27 preceding sections. Patricius Sporer, like Suárez, opined that from the point of view of the judge, who exercises his official punitive function, punishment constitutes corrective justice as in relation to the state and the victim. He understood, however, that this says nothing about the inherent nature of punishment. On the one hand, punishment is meted out in accordance with the measure of the crime, so it has a likeness to corrective justice. On the other hand, when considered proportionally in relation to other offenders, it is similar to distributive justice. But in his view, punishment belongs neither to distributive nor to corrective justice because it is not a distribution of common goods nor does it compensate the victim.109 I showed earlier that at least one of these arguments is flawed. But I use Sporer only as an example for a mode of reasoning that rejects both Aquinas and Scotus after recognizing the obvious similarity between retribution and the two Aristotelian forms. His ultimate conclusion is that punishment constitutes an imperfect kind of justice. The idea that retributive justice constitutes an independent form has gained support in modern legal scholarship. It is assumed without explanation by many authors. For instance, Tony Honoré refers to three “elements of justice”: corrective, distributive, and retributive.110

In a previous article, I endorsed and tried to justify this stance.111


Id. at 64.


HONORÉ, RESPONSIBILITY, supra note 25, at 7, 13; Honoré, The Morality of Tort, supra note 25, at

78–90; see also Lea Brilmayer, International Justice and International Law, 98 W. VA. L. Rev. 611, 615, 617–19 (1996) (“The basic conceptions of international justice include retributive justice, corrective justice, and distributive justice.”).


Although Englard’s study is descriptive, hence neutral on the question explored in this Review, I think that his detailed analysis of the mutual criticism of Thomists and Scotists yields a clear conclusion.


Ronen Perry, The Role of Retributive Justice in the Common Law of Torts: A Descriptive Theory, 73

TENN. L. REV. 177, 183–86 (2006).


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