LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Reconciling corrective and distributive forms of justice 105
4.2 Corrective and distributive forms of justice
distinguished
4.2.1 The ethos of corrective justice
The traditional conception of litigation as guided by corrective justice
reflects the nineteenth century vision of society, which promoted the
individual as an autonomous entity. 3 The corrective justice theory is
also guided by the vision of libertarianism. It is this vision that
distinguishes corrective justice from distributive justice. Libertarians
are of the view that each person has the right to live his or her life in
any way he or she chooses, so long as that person respects the equal
rights of others. The government exists only to protect people from
the use of force by others. 4 From this perspective, individual freedom
cannot be sacrificed for the sake of the common good as each person
possesses an inviolability founded on justice that even the welfare of
society as a whole cannot override. It is for this reason that justice
denies that the loss of freedom for some is made right by a greater
good shared by others. 5
In terms of this view, the primary function of the court is
resolution of disputes in order to achieve fair results from human
interaction and to maintain individual autonomy. 6 Libertarians define
human rights in a negative manner; all that people need are those
rights that guarantee non-interference from others in their enterprise
of seeking autonomy. 7 In terms of this philosophy, litigation is viewed
as a vehicle to restore the autonomy of those whose rights have been
interfered with. Libertarianism places much emphasis on the concept
of property and the unfairness of the distribution of property gained
through individual efforts. It therefore rejects the welfare state in
favour of a liberal non-intervention state that respects people’s
property rights. 8 The notion of corrective justice is designed to
achieve these objectives.
The philosophy of corrective justice recognises the fact that
stopping legal wrongs completely is impossible. It, however,
3 A Chayes ‘The role of the judge in public law litigation’ (1979) 89 Harvard Law
4
Review 1281 1285.
D Boaz ‘The coming of libertarian age’ (1997) 19 CATO Policy Report, sourced at
5
http://www.heartland.org/pdf/63011a.pdf (accessed 25 June 2006).
M Sandel Liberalism and the limits of justice (1998) 16. See also J Rawls A theory
of justice (1999) 3.
6 Chayes (n 3 above) 1285.
7 J Garret The limits of libertarianism and the promise of a qualified care ethic
(2004), sourced at http://www.wku.edu/~jan.garrett/ethics/libcrit.htm
8
(accessed 25 June 2006).
See C Wellman ‘Justice’ in L Simon (ed) The Blackwell guide to social and
political philosophy (2002) 70. See also generally A Ryan ‘Liberalism’ in E Goodin
& P Pettit (eds) A companion to contemporary political philosophy (1995) 291.