Chwaszcza, Christine --- "Can We Make Sense of Commutative Justice? A Comment on Professor Wojciech Sadurski" [2011] ELECD 668; in Micklitz, Hans-W. (ed), "The Many Concepts of Social Justice in European Private Law" (Edward Elgar Publishing, 2011)

Book Title: The Many Concepts of Social Justice in European Private Law

Editor(s): Micklitz, Hans-W.

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849802604

Section: Chapter 3

Section Title: Can We Make Sense of Commutative Justice? A Comment on Professor Wojciech Sadurski

Author(s): Chwaszcza, Christine

Number of pages: 10

Extract:

3. Can we make sense of commutative
justice? A comment on Professor
Wojciech Sadurski
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 compensa-
tion 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 termi-
nology consists in the (anti-Platonic) idea that the generic term `justice'
addresses a plurality of different types of practical conflicts as well as a plural-
ity 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 philos-
ophy, and the Aristotelian notion was replaced by the idea that an exchange is
just if it results from the voluntary agreement of all parties ...