Private law is often said to be distinctive in a certain sense: it is about ‘interpersonal justice’. But consider the following: Antony Duff says criminal law is to be understood in a certain relational way. Kristen Rundle says that the Fullerian ideal of the internal morality of law concerns certain relations between the lawgiver and law subject. Avihay Dorfman argues that there are relational aspects of many public law duties. If there is any meaningful use of the relational architecture in these domains, it must extend beyond the vision offered by what is traditionally known as the ‘bipolarity’ thesis in private law.
The last-mentioned idea, often associated with the seminal work of Ernest Weinrib, is very influential in private law circles. Bipolarity is said to reflect a special connection between a particular plaintiff and defendant, constraining various types of ‘external’ considerations such as loss-spreading or deterrence from impinging on the ‘relational nexus’. These considerations are either too one-sided (focused on plaintiffs or defendants alone), or too collectivist in orientation (hence about distributive, as opposed to corrective, justice).
I challenge this set of shibboleths in my recent article published in the University of Toronto Law Journal, and in a way different from those who have provided ‘internal’ (i.e. from within the field) critiques of private law theory. I look past private law and find many sets of interpersonal nexuses that reflect a certain parallel train of thought. Across different domains of moral philosophy, jurisprudence, criminal law, and constitutional and administrative law, one can carve out a framework of interpersonal justice that exhibits both continuities and discontinuities. In each domain, there is a resistance to purely instrumentalist, collectivist, or distributive tendencies, an emphasis on working on what we owe each other, and perhaps just as importantly, who ‘we’ and ‘each other’ refer to, for the purposes of the domain in question.
Hence Fuller’s internal morality of law can be understood as a relational ideal repudiating a ‘managerial’ approach to law, concerning what the law-giver owes subjects. The construction of public wrongs in criminal law concerns what individuals owe as duties to the polity in virtue of association as citizens, an idea that counteracts ambitious legal moralism and economic deterrence. And an interpersonal account of constitutional and administrative law, focusing on standing in judicial review, makes sense of duties owed by the state to classes of persons, as against a sceptical account of ideologically manipulated doctrine. At the same time, my analysis is sensitive to distinctive features of the relational nexus in each area, including the construction of parties, representative standing where required, and boundary issues between spheres of interpersonal justice.
Some of these further complications are addressed in the article, but I also want to highlight a number of implications that I see as upshots of this conceptual and normative re-mapping. For instance, I explain how the so-called Aristotelian division between corrective and distributive spheres of justice is not a particularly helpful way of understanding the normative landscape. In line with the vision proposed, a better way would be to see different spheres of interpersonal relations and interpersonal justice interacting, each sphere containing its own formula of allocation to what parties and persons owe each other (a ‘distributive’ issue, if you like), and at the same time, involving modes of accountability and rectification, whether institutionalised or not (thus encompassing a ‘corrective’ dimension, broadly understood).
This article forms part of a larger project on rethinking the foundations of interpersonal justice in private law theory and adjacent domains, and may be read alongside the author’s post on a related article, ‘The Enigma of Interpersonal Justice in Private Law Theory’ published in the Oxford Journal of Legal Studies.
Keywords: Interpersonal Justice, Jurisprudence, Constitutional Law, Criminal Theory, Corrective and Distributive Justice
AUTHOR INFORMATION
Assistant Professor Tan Zhong Xing is the Director of the Sheridan Fellowship Programme and a member of the Leadership Team at NUS Law.
Email: lawtzx@nus.edu.sg