Review article. Corrective justice and correlativity in private law

Abstract

Ernest Weinrib's aim is to show how private law should be 'understood'. By 'private law' Weinrib means the law of contract, the law of tort and the law of restitution, which he calls 'the entire domain of liability' (20). For Weinrib the central feature of private law is correlativity. The term 'correlativity' refers to the fact that through private law we organize the world in terms of bilateral relationships between individuals. The correlativity of private law finds expression both in the bipolar nature of private law litigation and in doctrines, such as causation, which link the plaintiff's claim to the defendant's wrong. In private law, one person's right is always a function of another person's duty, and vice versa. Weinrib argues that in order to give a proper account of private law, we must explain this central feature of correlativity. This can only be done, he says, from an 'internal' perspective because correlativity is a structural feature of private law. In his view, this accounts for the failure of 'external' explanations of private law in terms of its social purposes. For instance, the idea that the function of private law is to compensate for losses suffered does not explain why one person rather than another should provide the compensation or why compensation is only payable when losses are caused in certain ways. Conversely, the idea that the function of private law is to deter certain types of conduct does not explain why such conduct is often only actionable if it causes loss to another. The inadequacy of external explanations of private law is a major reason, according to Weinrib, why economic analyses of private law are bound to fail. Properly understood, says Weinrib, private law is an end in itself and not a means to some other end such as a particular political or economic or social state of affairs. Rather more rhetorically, he says that 'the [only] purpose of private law is to be private law' (5). What this seems to mean is that the purpose of private law is to encapsulate and give effect to the fundamental idea of correlativity (or reciprocity) in human relationships. Reciprocity is only one of the bases on which human relationships can be conducted, and Weinrib does not argue that it is normatively superior to other modes of human interaction. His basic point is that since private law expresses that particular mode of