In This Book, Izhak Englard aims “To retrace the long and complex history of the Aristotelian conceptual distinction between distributive and corrective justice from antiquity to the present day” (p.ix). The task that he undertakes is an important and a surprisingly neglected one. Aristotle's Ethics and Politics have fundamentally shaped western moral, political and legal thinking. The discussion of justice in Book 5 of the Ethics is one of the most intriguing parts of those two works, and the enigmatic distinction between distributive and corrective justice (forming part of that discussion) has long fascinated scholars in both law and philosophy. Indeed, the last thirty years has seen a remarkable increase in the prominence accorded to the distinction within legal scholarship and judicial reasoning, while the precise nature and significance of the distinction is more hotly contested than ever before.
In spite of the importance of Aristotle's distinction, and the longevity of the debates that it has stimulated, there are few books that render the history of those debates accessible. The discussions of distributive and corrective justice that we find in Aquinas, Grotius and Hobbes are reasonably well known, but most of us know little of the wider tradition into which these discussions must be fitted if they are properly to be understood. If we feel inspired to embark on exploratory research we will quickly be deterred by the discovery that many of the relevant materials are available only in manuscripts or in very rare printed books. In this context, Englard performs a great service for which he deserves our thanks: visiting many European libraries he has sought out the books, studied them carefully, and told us (with considerable patience and with a disarming lack of pretension) what they have to say about the Aristotelian distinction. In addition to covering scholastic, post-scholastic and modern texts, Englard also offers us interesting chapters that discuss the theological problem of divine justice, the Jewish commentators on Aristotle, and the iconography of the Aristotelian distinction. His book therefore provides a valuable resource both for legal philosophers and for legal historians.
Aristotle tells us that one type of justice is “found in distributions of honour or money or the other things that have to be shared among the members of the political community”, while the other type “plays a rectificatory role in transactions”, which may be voluntary (Aristotle gives as examples selling, lending, depositing and pledging) or involuntary (the examples given are various wrongs such as theft, murder, assault and slander). Distributive justice involves an equality of “geometrical proportion” between the shares received and the qualities of the recipient. Corrective justice, on the other hand, involves an “arithmetical proportion”: if one party has committed an injustice against another, the law ignores the good or bad properties of the individuals and “looks only to the difference made by the injury”.
Beneath the surface of an apparently continuous tradition the debates concerning Aristotle's distinction have undergone some significant transformations. One metamorphosis occurred in the early modern period when writers such as Grotius and Hobbes began to move away from an Aristotelian framework of thought and to disconnect questions concerning justice from the broader issues of well-being and the common good where Aristotelians would have located them. In more recent times, ideas of justice have been shaped by the gradual realisation that the structures of civil society should not be regarded as a natural horizon but rather as the alterable result of shared institutions and practices. As a consequence, the twentieth century saw the notion of “distributive justice” applied to the polity's overall structuring of benefits and burdens. For many theorists, distributive justice has come to be the core of justice, corrective justice being understood as occupying only a subordinate role.
Englard describes his work as an instance of Begriffsgeschichte, grounded upon the view that “the meaning of terms is imbedded in cultures” (p. xi). His intention, he explains, is to “map throughout the ages the fundamental controversies about the understanding and significance of the distinction, and, most importantly, the different and changing purposes of its use” (p. xi). However, he presents the works that he discusses “in a neutral, objective way”, with the aim of bringing before the reader the content of texts that, to most of us, are “practically inaccessible” (pp. xii–xiii). Furthermore, he is not selective in his coverage, but endeavours to cover all of the (printed) works that he could find in the libraries.
The exposition of a succession of specific texts has its limitations, particularly when the texts are expounded with little reference to the surrounding intellectual and political circumstances of their production. Englard rarely seeks to discern broader trends or watersheds of the kind described above. His emphasis is, for the most part, upon a continuous tradition of dialogue and debate: shifts in outlook are noted only when they are visible on the surface of the texts. There is little eagerness to search for those subtle changes in atmosphere and background assumption that can transform significance without any outward change in the traditional verbal formulae. Nor is there much interest in the diverse concerns that may have motivated these (sometimes very different) writers to embark upon discussion of the Aristotelian distinction. This is a field, however, in which a thousand flowers can profitably bloom, and Englard's work will facilitate the efforts of those who prefer a somewhat more astutely contextual approach.
We learn from Englard's account that the bulk of the scholastic and late scholastic discussions puzzled over the application of Aristotle's distinction, or pondered the need for additional categories. Only a minority of scholars (Buridan being the principal example) questioned the distinction itself. Thus we find a long-running disagreement about the place that should be accorded to punishment within Aristotle's scheme (retributive justice has been thought to resemble corrective justice in some respects and distributive justice in others) and many examples of situations where the forms of justice appear to merge, compete or overlap. Like Aristotle, these writers seem to find the irreducible plurality of forms of justice untroubling.
In my view, it is possible to find in early modern theorists, such as Grotius, indications of a desire to reduce the forms of justice to unity. In Grotius's case this was done by building upon the (late scholastic) idea that the rights created by corrective justice are weightier than those of distributive justice. Grotius promotes corrective justice to a position of outright pre-eminence by suggesting that distributive justice is not truly a matter of justice at all, but rather of “generosity, compassion and foresight” in the affairs of government. In recent times, theorists have pursued this quest for unity, but now it is distributive justice that tends to be promoted, while corrective justice is reduced to the role of a procedural mechanism whereby an originally just distribution can be restored after being upset.
The modern search for unity is significant. Aristotelian thought has tended to view moral principles as abridgments or summaries of a much richer and more complex practical wisdom. Consequently, Aristotelians are usually comfortable with the idea of diverse ethical considerations that are not reducible to any single principle or ordered set of principles. The plurality of forms of justice can be accommodated by the appreciation that they apply in different contexts and fit together within a coherent pattern of life that serves the common good. By contrast with this, modern liberalism has gravitated towards a different view wherein morality must be grounded in articulable principles of great generality and inclusiveness: such principles are supposed to provide an Archimedean point from which a society may be judged.
In this way, moderns find themselves torn between two theories. One of these asserts the priority of distributive justice, thereby threatening to obscure the autonomy of private law and the independence of ordinary moral life from the state. The other leaves us with an irreducible plurality of conceptions of justice without any deeper background (such as the notion of “common good”) that could explain and mediate their relationship.
The modern search for unifying principle can threaten to erode the fabric of an otherwise stable and coherent moral life grounded in less-than-fully-reflective habits of affection and conduct. But a simple affirmation of the given is not really an option available to us. Our established form of moral life now itself encompasses a search for transparency and grounding principle that cannot plausibly be treated as the sheer result of intellectual error. It is an aspect of (as Hegel puts it) “the obstinacy that does honour to humanity” that we cannot simply accept the authority of the given without grasping its justification in thought. This problem provides the central task for political philosophy and jurisprudence, and an improved grasp of our own intellectual history is essential if we are clearly to understand its contours.
