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Liberty, Community, and Corrective Justice

Published online by Cambridge University Press:  09 June 2015

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In a well-known article, Duncan Kennedy has stated that the central problem for law is its treatment of the fundamental contradiction of our condition. On the one hand we are dependent on others for protection against destruction and for the fullest realization of our sense of ourselves; on the other hand we recognize in others a threat to our own well-being. Kennedy regarded the dilemma “that relations with others are both necessary to and incompatible with our freedom” as the essence of every legal problem, and he ascribed to the liberal conception of law the historical function of dressing up as rational or natural the structures of bondage that emerged as its particular resolutions. Kennedy’s contradiction invokes the recurrent tension between the notions of liberty and community that supply traditional vantage points for the analysis of social and political relations. The reconciliation of these notions poses an enduring philosophical problem, and one need not agree with Kennedy’s unflattering assessment of the law’s function to realize that it is a problem in which law too has been centrally implicated.

Type
Research Article
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1988

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References

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3. Throughout this paper “private law” is used as a conventional term that includes tort law, contract law, and the law of restitution. As will be seen, however, my focus is not on the content of this conventional term but on the ordering of corrective justice that underlies the most significant features of private law. Legal doctrines that are not intelligible on that basis (e.g. contribution among tortfeasors) are beyond the purview of this essay, although they might conventionally be included in private law.

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34. Ibidat 96.

35. Hegel, supra note 17, ss. 96–101.

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38. In Notion et Portée de la “Volonté Generale” chez Rousseau, Jean-Jacques (1912) 20 Révue de Méta-physique et de Morale 383, at 384 Google Scholar, at 384, Rudolf Stammler formulates Rousseau’s decisive conceptual innovation in terms of this shift. Hegel describes a similar transformation in his Prefatory Lectures on the Philosophy of Law (1978) 8 Clio 49, at 57–61 (Brudner tr.). Cf. Habermas' account of what he terms “the positivization of Natural Law” in Theory and Practice (Viertel tr. 1973) 82ff.

39. For an outline of the significance of the Kantian priority of the right, see Weinrib, supra note 15, 501–3. The matter is dealt with at length in a forthcoming article, Benson and Weinrib, The Right and the Good.

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43. Iam grateful to Peter Benson. David Copp. Peter Schuck, and Roger Shiner for comments on earlier drafts of this paper.