Restitution: The Heart of Corrective Justice

Abstract

I. Introduction One of the central features of the law of restitution for unjust enrichment is, for many commentators, a puzzle. This is the phenomenon of liability without fault. A defendant can come under an obligation to the plaintiff without having done anything wrong. The primary goal of this Article is to provide an explanation of how such obligations can rightly be said to arise. This part of the argument attempts to build on Ernest Weinrib's developed theory of corrective justice, as set out in The Idea of Private Law.1 The secondary goal of this Article is to apply this analytical framework so developed to some contested areas of unjust enrichment law to test the fit between the framework and the law. Particular attention will be paid to the difficult cases in which the initial recipient of an enrichment has passed it on to another person, who is now the defendant. These cases have caused difficulty in all legal systems. It will be argued that the common law's solution, properly understood, is consistent with corrective justice. Such remote recipients can be strictly liable, but only to the extent that they still hold an asset in which the plaintiff can establish a proprietary interest. Weinrib presents his theory of corrective justice as capable of explaining the main features of private law. There are two difficulties with squaring this theory with the law of restitution.2 First, the book does not clearly distinguish between the two distinct parts of the law of restitution: (a) claims that the defendant must disgorge some gain achieved through a wrong against the plaintiff (disgorgement for wrongdoing) and (b) claims that the defendant must make restitution of a benefit received from the plaintiff (autonomous or subtractive unjust enrichment).3 The two kinds of claims are fundamentally distinct.4 In disgorgement for wrongdoing, the plaintiff builds her claim on the wrongful conduct of the defendant. The plaintiff need not show a loss; her entitlement to the gain is based on her being the victim of the wrong. By contrast, in a claim in autonomous unjust enrichment, the plaintiff needs to show that the defendant's gain corresponds to a deprivation on the part of the plaintiff.5 Moreover, such a claim does not depend on any wrongdoing; it is based on an autonomous cause of action, the elements of which do not include any fault on the defendant's part. This leads to the second difficulty: Weinrib's theory in general presupposes that private-law liability depends on wrongdoing by defendants. In this regard, it does not seem to square with the law of autonomous unjust enrichment. The first problem has now been addressed by Weinrib himself. He has treated the problem of disgorgement for wrongdoing separately and provided a convincing explanation of how and to what extent it can be subsumed within his theory of corrective justice.6 The primary aim of this Article is to address the second problem: fitting autonomous unjust enrichment within Weinrib's theory of corrective justice. It will be argued that it is possible to fit into Weinrib's theory an understanding of unjust enrichment liability that does not depend on any wrongdoing by the defendant. The secondary aim of this Article is to assess the proper scope of unjust enrichment, so understood. II. Theory A. Weinrib's Theory of Corrective Justice Weinrib's theory of corrective justice is a magnificent intellectual achievement. Built upon Aristotle's Nicomachean Ethics,7 mediated by the work of Kant, the theory shows us how to understand a large body of our private law as an internally intelligible system which protects and defends that which is common to all of us: our ability to make choices in our lives and our corresponding duty to allow others to do the same. A remarkable feature of the theory is that it understands private law in its own terms and on its own terms. It therefore permits the rejection of functionalist understandings, which view the role of private law as the promotion of some external goal, such as increasing economic efficiency or deterring undesirable conduct. …