The Constitutive Demands of Corrective Justice

Area of Science:

• Legal Philosophy
• Private Law Theory
• Kantian Jurisprudence

Background:

• Ernest Weinrib's work on Kantian corrective justice provides a framework for understanding private law.
• A key ambiguity in Weinrib's prior scholarship concerns whether corrective justice imposes substantive limits on private law.
• The book "Reciprocal Freedom" explores the broader implications of this corrective justice account for legal and political philosophy.

Purpose of the Study:

• To analyze Ernest Weinrib's "Reciprocal Freedom" and its engagement with Kantian corrective justice.
• To investigate whether Weinrib's corrective justice theory places constitutive limits on private law.
• To examine the implications of Weinrib's revised stance for legal positivism.

Main Methods:

• Close reading and textual analysis of Ernest Weinrib's "Reciprocal Freedom".
• Comparative analysis of Weinrib's current work with his previous scholarship on corrective justice.
• Philosophical interpretation of Kantian concepts of constitutive and regulative requirements in law.

Main Results:

• Weinrib's corrective justice, initially presented as regulative, does impose constitutive limits on private law.
• Private law is deemed non-authoritative if it violates the innate right of persons.
• This finding challenges the purely positivist interpretation of Weinrib's legal theory.

Conclusions:

• Ernest Weinrib's theory of corrective justice inherently limits the substance of private law.
• The violation of innate rights renders private law non-authoritative, indicating a departure from a purely regulative role.
• This nuanced understanding necessitates a re-evaluation of whether Weinrib's account remains strictly positivist.