The Justice in Unjust Enrichment
Osgoode Hall Law Journal, 51:3 (2014)
30 Pages Posted: 14 Feb 2014
Date Written: January 21, 2014
The question of what justice has to do with the law of unjust enrichment (if it has anything to do with it at all) has in recent years come to occupy scholars who sought to explain the theoretical foundations of this area of law and its relationship with other branches of private law. A popular answer has been that the law of unjust enrichment, like the rest of private law, instantiates the norms of corrective justice. In this essay I argue that this is not the case in two distinct senses. First, even on its own corrective justice does not provide a satisfactory grounding for this area of law (or, for that matter, for other branches of private law). Second, parts of the law of unjust enrichment are explained by competing notions of justice. I consider some of them in this essay and I show that what all of them have in common is that they are grounded in considerations of distributive justice or that they are part of a political theory. In the concluding sections of the essay I offer a way of reconciling these political/distributive foundations of unjust enrichment law with private law’s seeming indifference to such considerations. I do this by calling attention to the institutional constraints that courts operate under. I argue that while such constraints are essential for understanding private law adjudication, they lead to practical implications quite different from those suggested by corrective justice theorists.
Keywords: unjust enrichment, restitution, corrective justice, fairness
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