Table of Contents

The Many Concepts of Social Justice in European Private Law

The Many Concepts of Social Justice in European Private Law

Edited by Hans-W. Micklitz

This insightful book, with contributions from leading international scholars, examines the European model of social justice in private law that has developed over the 20th century.

Chapter 3: Can We Make Sense of Commutative Justice? A Comment on Professor Wojciech Sadurski

Christine Chwaszcza

Subjects: law - academic, european law, private international law

Extract

Christine Chwaszcza The concept of commutative justice is notoriously difficult. Aristotle, who seems to have invented it, conceived of commutative justice1 as concerning voluntary (commercial) exchange and defined it in terms of the objective worth of exchangeable goods: an exchange is just, according to Aristotle, if goods of equal worth are transferred.2 Commutative justice thus differed from what Aristotle called distributive justice, which is concerned with honors and status and requires that equals be treated equally and unequals unequally, as well as from rectificatory justice, which regulates punishment and compensation for wrongful harm, and from equity, which is related to justice but becomes relevant primarily where the application of standards of justice seems unwarranted or unfair. The concept of commutative justice thus refers to a particular branch of justice – closely related to private law today – rather than to one essential ideal of justice, because the crucial point of Aristotle’s terminology consists in the (anti-Platonic) idea that the generic term ‘justice’ addresses a plurality of different types of practical conflicts as well as a plurality of different moral standards for addressing them. Following the demise of the belief that goods have objective value or worth, the concept of commutative justice was reinterpreted in early modern philosophy, and the Aristotelian notion was replaced by the idea that an exchange is just if it results from the voluntary agreement of all parties involved (Hinsch, 2003, pp. 27–8). In early modern philosophy the concept of commutative 1 In English translations, ‘commutative justice’ is...

You are not authenticated to view the full text of this chapter or article.

Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.

Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.

Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.

Further information