LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

106 Chapter 4
perceives the law as a tool for restoring those who have been wronged
to the position they would have been in but for the wrong. 9 Aristotle
defined corrective justice as ‘that which plays a rectifying role in a
transaction between man and man’. 10 Aristotle favoured corrective
above distributive justice; he contended that judges must posses the
moral virtue of corrective justice and the intellectual virtue of
practical wisdom in order to determine the just result in all cases. 11
Corrective justice has also been described as compensatory justice
and associated with three essential features: (1) the parties are
treated as equal; (2) there must be damage inflicted by one party on
another; and (3) the remedy granted must seek to restore the victim
to the condition he or she was in before the violation. 12 Once a
violation is proven, the judge has to insist on full correction without
attempting ‘either to balance the affected interests or changing …
behaviour in the future’; 13 the judge will focus on restoration of the
status quo.
In modern private law, corrective justice is not only most
prominent in tort (delict) law, but obtains also in property and
contract law. 14 When parties enter into a contract, it is assumed that
they begin as equals who assume corresponding rights and duties.
Omissions by one party to discharge his or her duties, for example by
not paying the price or delivering the goods, destabilises the equality
of the parties. It leads to an unjustifiable gain by one party and a
corresponding loss to the other party. The effect of such conduct is
that it changes the position of both parties, unfairly advantaging one
and disadvantaging the other. This is what is meant by destabilisation
of the parties’ equality. The purpose of the law in this case becomes
9 K Roach Constitutional remedies in Canada (1994) 3-17 describes corrective
justice as a powerful remedial theory which demands that wrongs be corrected.
Though it empowers the courts to correct the wrong, the remedies are limited to
the harm that a wrongdoer has caused (3-18).
10
V Aristotle Nicomachean ethics 2, as quoted by M Modak-Truran ‘Corrective
justice and the revival of judicial virtue’ (2000) 12 Yale Journal of Law and
Humanities 249 250. See also Roach (n 9 above) 3-17. Aristotle distinguished
corrective justice from distributive justice when he said that distributive justice
is that ‘which is manifested in distributions of honour or money or other things
that fall to be divided among those who have a share in the constitution’.
11
See Modak (n 10 above) 250.
12 D Shelton Remedies in international human rights law (1999) 38. Shelton
contends that in all legal systems, the principle that a wrongdoer has an
obligation to make good the injury caused is prominently enforced, together with
the restitution of property wrongly taken (60).
13 Roach (n 9 above) 3-2. He contends further that, if a court focuses on correcting
harms caused by a proven violation, it will not have to worry about infringing the
role of other branches of government to pursue distributive justice. This means
that corrective justice is intrusive in nature as it looks at the outcome of the case
and its impact from the perspective of the plaintiff.
14 See C Bridgeman Strict liability and the fault standard in comparative justice
accounts of contract Public Law and Legal Theory Working Paper No 146, Florida
State University College of Law, sourced at SSRN http://ssrn.com/
abstract=669504 (accessed 22 June 2006).