Director of the IT Law Program Dr. Helen Eenmaa-Dimitrieva speaks at Harvard Law School
Dr. Helen Eenmaa-Dimitrieva presents a paper and holds a conversation with Professor Lewis Sargentich at Harvard Graduate Legal Philosophy Colloquium which takes place on November 7-8 2014 at Harvard Law School.
The title of her paper is “Responsibility Under Corrective Justice as a Necessity for any Legitimate Distributive System”.
More information: http://graduatecolloquium.law.harvard.edu/about
In tort law, there is a tension between, on one hand, holding people responsible under corrective justice (CJ), and on the other hand, serving the demands of distributive justice (DJ) or welfare maximization. I offer a solution to this tension and explain why any legitimate distributive system presupposes strict application of CJ.
Moreover, I show how such application of individual responsibility is fully consistent with each person’s rational interest and contributes to the stability of property rights and markets.
We know that one cooperative problem that the market needs to solve before it can operate concerns property – markets presuppose systems of property rights. A scheme of property rights, although clearly in each person’s rational interest, cannot emerge as a result of individually rational decisions or actions due to various structural problems like the prisoner’s dilemma. In cases like these, cooperation aids the creation of something that is in each person’s rational interest. In this case, it aids the creation and sustaining of a scheme of property rights, which allows markets to operate. (Coleman 1998) In order for markets to contribute to liberal stability, they need something that would ensure this cooperation. CJ that protects people against various infringements of their rights (life, security, property) is perfect for this task. In essence, CJ protects people against infringements of their personal autonomy: in case someone has suffered a wrongful loss, it repairs the victim’s ability to direct her own life according to her particular set of opportunities and options (Raz 1986).
It contributes to the stability of peoples’ rights and protects the cooperative mechanism of the markets thus being in each person’s rational interest.
The fact that CJ is necessary for the markets means that the principle's acceptance is not only beneficial but also necessary for any distributive system which includes markets. It is necessary for the legitimacy of a distributive system in the same manner as a system of property rights is necessary for the existence of a market. Without it, a distributive system would not have the guarantees for stability and market-type cooperation which would be in everyone’s rational interest.
As such, it would be illegitimate.
What does this tell us about the original tension between responsibility and welfare maximization in tort law? If CJ is indeed necessary for any legitimate distributive system, then, first, CJ would serve DJ; second, distributive system would depend on CJ. This type of relationship between CJ and DJ does not follow the rule-consequentialist model but a strict constraint theory and a theory of constrained maximization. CJ is a constraint on the pursuit of distributive goals, independent of whether its application leads to greater DJ or not. It protects the stability of peoples’ property rights and more generally their personal autonomy. Without such a constraint, it would be irrational for us to cooperate. This means that CJ would not be just beneficial for serving the demands of DJ or maximizing welfare. Without it, a distributive system would be illegitimate.