Justice as a Variation on a Theme

Abstract In private law, judges are creative across types of justice (inventing new ones where needed), and they are also creative within types of justice (inventing new content internal to a justice type). The latter will be the focus of this paper. Such intra-justice creativity can be shown in many ways, but one is especially significant for the present discussion: a justice type (say, corrective justice) may be modified so that, in some settings, it is sensitive to the concerns of another justice type. This means that less heralded types of justice can play a vital role in explaining private law despite the fact that, in practice, these ancillary types of justice only show up in exceptional circumstances. This paper will suggest that the relational justice idea developed by Hanoch Dagan and Avihay Dorfman can be fruitfully understood in this way.