Corrective Justice and Unjust Enrichment

Abstract

A popular theoretical account of private law explains it in terms of corrective justice. Professor Weinrib in particular has argued that private law is the instantiation of a particular form of corrective justice; one which invests the traditional Aristotelian notion with elements of Kant’s concept of right. His work, above all the seminal Idea of Private Law, remains the most comprehensive and sustained attempt yet to integrate private law doctrine and theory. Naturally, the early battleground for Weinrib’s theory was tort law: his theory stood in diametric opposition to the prevailing economic analysis, which formed the principal focus of his attack. A debate on similar terms has also occurred in contract law, due in large part to the work of Professor Benson. It is only relatively recently, however, that the focus has shifted to consider whether Weinrib’s theory of corrective justice can account for the other major area of the private law, unjust enrichment. It is that important question that is addressed in the following article. The conclusion reached is that Weinrib’s theory cannot explain the duty to restore which arises in cases where the defendant plays no role in the sequence of events that result in the conferral of the enrichment.

Keywords: Unjust Enrichment, Corrective Justice, Weinrib, Kant, Aristotle