Private lawyers often talk about interpersonal justice in a way that presumes some level of consensus ad idem over the concept. This, however, can be doubted.
In my article recently published in the Oxford Journal of Legal Studies, I argue that contemporary private law theory has located no foolproof conception of interpersonal justice. Any notion of interpersonal justice must encompass certain desiderata. It must spell out some notion of persons or personality. It must give us a sense of what an ‘interpersonal nexus’ looks like. And it should offer a process of interpersonal reasoning, identifying which considerations figure in the process of reasoning to what we owe each other. Such an account must then be harnessed towards working through the details of private law, both its structural elements and doctrinal data.
My (rather audacious) contention is that many of the leading theories of private law can be found wanting in explicating a fully persuasive notion of interpersonal justice. Roughly speaking, economists abandon interpersonal justice completely for an impersonal conception of welfare. Kantian and corrective justice theorists do attempt some version of interpersonal justice but truncate the notion to that of equal and reciprocal non-interference. Critical and social justice appear to be concerned with classes of group interests, but their approaches lean heavily towards instrumentalism in their aim to vindicate these marginalised interests, thus tending to give up on any clear idea of personality and interpersonal reasoning. And human flourishing approaches sometimes narrow private law to a quest for certain fixed goods based on contestable ideas of ‘truth’.
This leaves us with the enigma of ‘interpersonal justice’ in private law. How then should we proceed? Should we abandon the project of working out ‘interpersonal justice’? Should we try to draw out some of the more attractive features of existing theories and meld them together in a pluralistic fashion? Or we should we try some other framework for working out what ‘interpersonal justice’ can or should mean in private law?
I reject the pessimistic suggestion that we should abandon the search for a theory of interpersonal justice. I also doubt that we can find a stable equilibrium in attempting a modus vividendi among existing theories. Instead, I take the view that interpersonal justice is not so much a unitary concept, focused on individual claimants and defendants or based on a single regulative idea replicated throughout private law. Looking (solely) at specific bilateral interactions, or hoping to find the Rosetta Stone of private law by locating a single value, arguably leads us astray.
Instead, I draw from the resources of contractualist moral and political theory to develop an interpersonal justice framework for determining what we owe each other in different spheres of life, concerning classes of persons with a range of interests that come into play depending on context, and relational reasoning to entitlements and obligations. Contractualism, an approach drawn from the works of John Rawls and Tim Scanlon, understands interpersonal morality as modelled upon ideas of mutual cooperation and reciprocity among equals. Its reasoning is ‘interpersonal’ in being based on the notion of ‘justification to’ affected agents on grounds they cannot reasonably reject. Contractualism as a normative framework relies not on actual consent, but utilises notions of reasonable acceptance or rejection as a heuristic to direct us to the positions of individual ‘contractors’, in order that affected interests are accounted for as personal reasons in the consideration of candidate regulative principles, under process of normative idealisation.
In the article, I explain how this (rather capacious and inclusive approach) can be applied to the justification of the very institution of private empowerment; the interpersonal aspect of duties of care; and the distinctiveness of the remedial nexus when crafting secondary entitlements. To take the last-mentioned example, I think the question of what we owe each other remedially is quite distinct, as a matter of interpersonal reasoning, from what we owe each other as our primary entitlements and obligations, and certainly more macro-type questions of what we owe each other as members of a polity in crafting institutions of power-conferring and duty-imposing private law. From a relational perspective, the remedial relation must consider the contexts of individual victim and wrongdoer, yet also make space for classesof such persons when judges craft the regulative principles, both in a backward and forward-looking manner. The choice of remedial regime opens space for a fresh consideration of relative burdens to interests of repairers and repairees considering the remedy in question and its possible alternatives. This means that points of both principle and policy can both be relevant to the calculus, as long as they pass the test of reasonable rejection from the standpoint of parties in the relational nexus at hand, who might participate in the system of remedies as repairer or repairee at various points in time.
This framework of interpersonal justice reasoning, with its plasticity, thus avoids two unattractive extremes. Firstly, it rejects pure consequentialist reasoning such as that of lawyer-economists who see remedies and manipulable policy levers (e.g. property and liability rules). Secondly, it is more accommodating of a range of considerations in comparison with Kantian-type theories that place emphasis on a single consideration or value that is said to define the normative content of all relational nexuses in private law interactions. If there is value in this contribution, as I hope, it thus opens up space for progress on one of the key structuring ideas in private law theory.
Keywords: Interpersonal justice, torts, contracts, private law institutions, duties and remedies
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