The Third Form of Justice

Abstract

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.” 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,” the millennial treatment of the Aristotelian distinction has been disregarded in recent times. Englard’s recently published book brings the cumulative knowledge to the 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. Nonetheless, one can break down his sequential analysis of discrete manuscripts and extract fascinating inter-temporal debates on concrete questions that have occupied the minds of Western thinkers for centuries. This Critical Notice focuses on one of the main themes that run 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. Following a short presentation of the Aristotelian text, this Critical Notice utilizes 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.