07 April 2016

Straining Toward Natural Law: Margaret Radin and Contract Degradation Part 1.5.2

This represents my third in a series of posts that began here with my initial comments on Margaret Radin's Access to Justice and Abuses of Contract. Yesterday saw my second post here in which I responded to the first of Dean Eric Enlow's critiques, which had to do with whether contract law was a public good. Based on his prodding, I have affirmed that indeed contract law is a public good.

Dean Enlow went on to raise a second point, this one about my use of the expression "commutative justice" in connection the social practice of contracting in place of the more common contemporary reference to corrective justice. Quoting my original contention,
Among the components of justice is "commutative," which entails a rough equality in exchange. In other words, when all is said and done, a contractual exchange of money (or information) for goods or services should be a fair one.
To which Dean Enlow responds:
Second, in your discussion of the type of justice relevant to contract law, you follow the later typology in distinguishing between commutative and distributive justice which emphasizes equality in the exchange, rather than the older tradition distinguishing between rectifying and distributive justice, which emphasizes reestablishing equality of position after a harm.
And in addition asks, 
If we consider contract law to be concerned with rectifying the distinct kinds of harms that arise out of the breaking of contracts, i.e., enforcing the obligations that arise to remedy harms caused by certain and only certain kinds of contracts, would this make the analysis above easier than when we focus on equality in bargains as the essence of contractual justice?
Two points should be made here. First, I believe the idea of equality of exchange--commutative justice--precedes rectifying justice. As I argued in Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition (download here), we should distinguish between primary rights, what we owe one another on account of our common humanity, and secondary rights of rectification, what is owed when a primary right has been denied. Restoring the status quo ante is often a vital aspect of what the law does to correct a wrong but only follows what the parties have already done.

In any event, the world of primary rights can be divided between commutative (e.g., equality of exchange) and distributive (those owed on account of account of status or dignity). Drawing on the work of Nicholas Wolterstorff, I state my argument about the nature and foundation of primary rights in three lengthy paragraphs of Looking for Bedrock. I won't tax my readers with reproducing them here but would direct anyone who is interested to pages 627-629 of the linked article for more detail. (Alternatively, look at some of my blog posts on Wolterstorff's book "Justice: Rights and Wrong" here, here, and here which, while they do not exactly make my point, have the advantage of easy accessibility.)

Second, I would appreciate anything that would make the task of identifying examples of Margaret Radin's "contract degradation" any easier. Yet I'm not sure how moving the initial focus from commutative justice to rectifying justice, as Dean Enlow wonders, would do so. If we leave aside the idea of equality in exchange, how do we identify when a particular contract causes harm? Or, how do we identify which "certain kinds of contracts" from which harm arise should not give rise to a legally enforceable claim? Perhaps there are simpler answers to these questions than there are to when a particular term of the underlying contract is so unfair as to have deprived a party of commutative justice but I'm not sure what they are.

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