The Problem of Dependency

Several legal philosophers have argued that the principle of corrective justice provides the best explanation of various areas of the law—especially the law of torts. On the other hand, some philosophers of law and many economists of law have argued that the principle of corrective justice is not an independent principle of justice. I call this the problem of dependency. If the critics are right, the principle cannot be an explanation of a large area of our law as it claims to be.

What is the principle of corrective justice (PCJ)? According to Coleman, it gives expression to a specific form of liability. It demands that an individual provide a repair to the person to whom he caused a wrongful loss. Wrongful losses could be taken to be those losses that one brings about by committing a wrong. Coleman has described committing a wrong also as breaching the duty of care or breaching the first-order duty of care. The principle draws a connection between our first-order duties of care and second-order duties of repair, whereby the failure to fulfill the former gives rise to the latter.^{Footnote 1} According to PCJ, when people breach the first-order duty of care and cause a loss to another to whom they owe the duty of care, they thereby incur a second-order duty of repair; they do not incur such duty unless they have failed to discharge the first-order duty and thereby caused a loss.^{Footnote 2} The bilateral nature of liability is a feature that arguably distinguishes corrective justice (CJ) from other possible responses to breaches of the duty of care that bring about a loss.^{Footnote 3}

The big question for those who defend PCJ as a potential explanation of the core of tort law is the following: how are the first-order duties of care and second-order duties of repair related to each other?

According to an important line of criticism, the principle is not independent as a principle of justice, but derives its content from various other principles. The problem of dependency, as I have called it, enters the picture, because we know that corrective justice does not fully determine the content of the first-order duties of care. Their content depends on the political and moral considerations in the society. What happens when the first-order duties are breached is a completely separate question and depends on other considerations. This seems to indicate that the relationship between the duties of care and duties of repair is too loose for the principle of corrective justice to be able to determine when the breach of the duty of care triggers the duty of repair. This determination may be up to a separate political decision or dependent on the principles underlying the first-order duties of care. The idea is that since the duties of care and duties of repair are related too loosely and various principles are involved in connecting them, then corrective justice alone is insufficient for triggering the second-order duty of repair.

In this paper, I aim to clarify critics’ arguments regarding the most complex dependency relationships and show how they relate to each other. In a similar fashion, I systematize the arguments which can be used to defend CJ as an explanatory principle. I determine where they are relevant and which of them are able to establish the independence of CJ. The structure of the paper follows this idea. I focus our attention on the various ways in which CJ could reduce to a mere tool for another principle which could establish the relationship between the two sets of duties. The paper is divided into subsections each of which analyses an increasingly complex version of the dependency relationship into which CJ may fall.

We shall focus on the dependency between CJ and distributive justice (DJ), the justice of holdings, because the varied conceptions of DJ are sufficiently complex and broad to enable the discussion of the whole variety of dependency relationships into which CJ might fall. As a result, one can use the conclusions of this analysis later to discuss the dependency of CJ on efficiency or any other principle.^{Footnote 4}

DJ is typically concerned with the distribution of wealth, income, and property. Norms of DJ regulate the allocation of goods among people together with the grounds of such allocations.^{Footnote 5} “Persons who participate in the same institutions of [DJ] have their claims against one another mediated by those institutions. Claims in [DJ] are not direct claims on other persons. We may have a claim in [DJ] to a certain share of society’s wealth and income, but we do not have a claim in [DJ] against another person for that share.”^{Footnote 6} Holdings-based conceptions of DJ generally tell us what characterizes a just scheme of holdings, or what characterizes a just mechanism for the distribution of resources in society. These include among others the static conceptions of DJ, the dynamic conceptions of DJ as proposed by Ronald Dworkin, the Rawlsian conceptions of distribution of resources, and Nozickian entitlement theories.^{Footnote 7}

Traditionally, the problem of dependency has been understood as presenting the relationship between CJ and DJ as a dilemma for CJ—the latter either reduces to a mere tool for DJ, or ends up not being a principle of justice at all.^{Footnote 8} This twofold concern is triggered by the idea that CJ requires the reversal of wrongful changes to an initial distribution of resources.^{Footnote 9} “If, on the one hand, some initial distribution of resources is just, then [CJ] seemingly does no more than require that we return individuals to the position to which they are entitled merely as a matter of [DJ]. This suggests that [CJ] is but [DJ] from an ex post perspective rather than an independent principle of justice. If, on the other hand, an initial distribution of resources is unjust, then [CJ] seemingly requires that we sustain, enforce, or entrench what is ex hypothesi an injustice. This suggests that [CJ] is not really a matter of justice at all: independent, yes; a genuine principle of justice, no.”^{Footnote 10}

Of course, we can object to the dilemma. It is not necessary for the underlying system of holdings to be distributively just in order for the PCJ to be a principle of justice.^{Footnote 11} For being a principle of justice, it is sufficient if it supports a legitimate distribution of holdings. For example, we might still want to protect property rights as they have an important role in sustaining markets, which in turn contribute to overall welfare.^{Footnote 12} The PCJ creates stable and enduring entitlements to property that are not subject to continuous ongoing or ad hoc redistribution.^{Footnote 13} The property rights may contribute by sustaining institutions that improve individual well-being and social stability; those rights would then be worthy of respect even if they did not exactly coincide with the best or most just distribution of resources.^{Footnote 14} It is presumed that the moral legitimacy of the system will be transmitted to individual entitlements.^{Footnote 15} Other roles that property rights may have despite not being distributively just are, for example, giving incentives to work and preventing social chaos, as James Gordley has suggested.^{Footnote 16} In general, such entitlements are sufficiently reliable to provide grounds for expectations and actions enhancing well-being that follow from these expectations.

From the CJ point of view, there is a difference between stating that the victim did not have a morally legitimate entitlement to the property, and that the victim’s entitlement to the property was not distributively fully just. Moral legitimacy and DJ are two different grounds for entitlement. The category of legitimate entitlements is broader, and encompasses the distributively just entitlements. CJ only operates when the entitlements are legitimate. This means that it operates both in situations where the entitlements are fully distributively just and also in some situations in which they are not fully distributively just. It does not operate, however, when the minimal conditions for the distribution of holdings are not met and the entitlements are accordingly not legitimate. In the latter case, it would even be difficult to call them entitlements at all.^{Footnote 17}

Defining Corrective Justice on the Basis of Corrective Entitlements and Private Transactions

Beyond the traditional formulation, we should notice a much deeper problem of dependency which derives from the relationship between the two sets of duties in PCJ. According to critics, the main characteristics of the problem of dependency derive from the following features of PCJ.

– The critics share the view that the duty of repair is a duty to place the parties into a position involving a particular state of holdings, where that state depends on what defines the duty of care.

– They define the duty of care in relation to either a distributive system or a value that we endorse with regard to the resources of the system, conceptualizing the breach of the duty of care as a departure from a particular distributively just, legitimate, efficient, or welfare maximizing system of holdings. Accordingly, the state of holdings to which people are returned is their prior distributively just, legitimate, efficient, or welfare maximizing position.

– They share the view that the underlying principles of duties of care determine peoples’ entitlements to material resources and CJ protects the interests that people have in preserving their thus-defined entitlements.

Accordingly, the general problem of dependency could be formulated in the following manner. Since the duty of care is determined on the basis of principles outside the PCJ, and the PCJ gives rise to a duty of repair that corresponds to the duty of care, then the PCJ effectively enforces, protects and sustains the values underlying the principles that determine the duty of care. Since the PCJ imposes the duties of repair only when the outside principle has given rise to the duty of care, and the duties of repair correspond to the duties of care, then the PCJ loses its independence to the outside principle.

For example, if CJ provides a basis for repair in a system of legitimate entitlements, it potentially takes people to certain distributive positions which can be characterized as part of a legitimate distribution of resources. As there are many legitimate states, the principle does not necessarily have to return people to the precise state where they were before (i.e., it does not have to annul the damage), but it may correct it in a way that preserves the prior legitimate state of entitlements. Although it is not necessary for it to move people to their distributively just states in order to be a principle of justice, to the extent that we understand it as returning people to particular legitimate states of distribution or annulling deviations from these particular legitimate states of distribution, it seems to be just a mechanism for preserving the particular legitimate state of distribution.

Most generally, the problem is that the PCJ is seen as placing people in the positions to which they are entitled according to some other principle; for example, the principles of DJ, of legitimacy, of efficiency, or of welfare maximization. If so, CJ may be seen as dependent on a particular conception of these principles. As a mere tool, it could not be an independent principle of justice.

Protecting peoples’ interests in material resources means, on one hand, protecting the shares that people are entitled to in the general pool of resources, which is the concern of DJ; and, on the other hand, protecting the stability and integrity of the resources that people have, which is the concern of CJ. Based on some earlier work, I think that it would be incoherent to think of CJ as dependent on patterned conceptions of DJ, and we can support the independence of the PCJ on the grounds that CJ protects different kinds of interests in material resources than DJ. Yet, we do not yet have a comprehensive theory of its independence. As I intend to show here, it could still remain dependent upon DJ in two additional ways. What theory provides the best grounds for the independence of CJ in light of this criticism? The rest of this paper will center on that question.

First, CJ can remain dependent by operating on distributive entitlements. This means that it can give rise to duties of repair only with regard to the entitlements that people have under a legitimate or fully just distribution. Accordingly, CJ would merely be implementing or confirming the existing system of distribution.

Second, CJ could promote DJ through private transactions. In the case of a sufficiently flexible conception of DJ, we could define the duties of care whereby the application of CJ would benefit DJ (e.g., where the protection of the stability and integrity of peoples’ resources would promote greater DJ). In this case, the principle would be triggered only in those circumstances where losses need to be repaired as a matter of DJ. As some might suggest, this might be sufficient to consider CJ to be dependent upon DJ.

We will discuss four theories that could provide grounds for the independence of CJ in response to these problems. After that, we will be ready to draw conclusions about the independence of CJ.

Problem: Corrective Justice Protects Distributive Entitlements

Let me start with the first of these two problems. According to some critics, CJ could still be dependent on DJ due to the fact that it operates on distributive entitlements.

This line of reasoning suggests that if all people’s entitlements are distributive in nature, and CJ operates on these entitlements, then all duties of care regarding them could be at least partially if not fully determined by the distributive scheme which defines the entitlements. In other words, CJ gives rise to a duty of repair regarding the material resource only if one has an entitlement to it under a scheme of DJ. The defenders of this view claim that since CJ protects peoples’ interests in material resources, which requires that people already had an entitlement to these resources under a scheme of DJ, then that distributive scheme and distributive entitlements are necessary in order for CJ to operate. A person could not have interest in particular material resources that would also be recognized by others for the purposes of CJ, unless he has an entitlement to these resources under DJ.^{Footnote 18} This means that whether CJ can give rise to a duty of repair regarding material resources depends on whether a person who suffered the loss that must be repaired has an entitlement to these resources under a scheme of DJ. In short, the PCJ is limited to operating within a scheme of DJ.

We know that there are good reasons not only to protect the distributively just entitlements, but also the legitimate entitlements against damage. As with just distributions, legitimate distributions are worth protecting, because this provides stability for our ownership of property and everyday dealings with one another. Operating within a legitimate system of entitlements is sufficient to make CJ a full-fledged principle. Such a legitimate distribution of entitlements, like a fully just distribution, is a scheme of DJ. In both cases, we speak about people having an entitlement to particular resources under a scheme of DJ. This means that in both schemes one can have a recognized interest in material resources, and if he suffers a wrongful loss regarding these resources, the PCJ can justifiably give rise to the duty to repair the loss. After all, both schemes meet the minimum requirements for the operation of CJ. Considering this fact, critics would conclude that CJ can protect interests in material resources only when one has an entitlement to these resources under a legitimate or fully just scheme of distribution. This reveals a limitation on the scope of interests that CJ can protect. It could not protect resources if they were based on entitlements in an illegitimate scheme of distribution.

In order to understand the nature of dependency that is connected with this limitation, we need to take a few further steps. While the limitation is significant, this does not yet make CJ’s application dependent on the demands of DJ in a particular case. It only means that wrongful losses which trigger the application of CJ are limited to those regarding entitlements in a legitimate or just scheme of distribution. What is the source of dependency, then, when CJ operates on distributive entitlements under a legitimate or fully just scheme of distribution?

In their debates, Peter Benson, Dennis Klimchuk, and Stephen Perry have suggested a framework for thinking about this problem. As they point out, some philosophers argue that if we view CJ as operating on distributively just or legitimate entitlements, then it inevitably collapses into the particular theory of DJ that determines those entitlements.^{Footnote 19} If DJ is postulated as the basis of the entitlements on which CJ operates, then one can argue that CJ is bound to protect distributive entitlements, because to operate on the entitlements is to be understood as protecting them. In this case, there is nothing to preclude the injurer from claiming that his infringement of the entitlement is actually a distributive improvement or a redistribution of holdings in accordance with a criterion of distribution.^{Footnote 20}

According to Benson, “If the injuring party can coherently frame the dispute in this way, the correction of the infringement should also properly be characterized as an act of [DJ], seeing that it can be viewed as a decision made between two competing distributive claims. In short, once the initial entitlement is grounded in [DJ], there is no reason why the violation of the entitlement as well as its correction should not be construed from the same distributive standpoint. It follows that there is no need to introduce, and indeed no basis for referring to, a second, genuinely distinct form of justice such as [CJ].”^{Footnote 21}

Ernest Weinrib has called the claim that infringements should be viewed simply as a redistribution of holdings, “the Robin Hood defense”. According to this conception, the wrongdoer raises the point that since from the distributive standpoint the post-transactional holdings are closer to what DJ requires, then justice requires leaving losses where they fall.^{Footnote 22} The distinct feature of this position is that it views CJ not only as operating on distributive entitlements (i.e., operating in the framework of legitimate distribution), but also as protecting these entitlements by restoring them following a particular understanding of justice. According to this particular understanding, the distinction between corrective and DJ is not necessary, as in the end they both protect an interest in the establishment and preservation of distributive entitlements.

This is similar to Dworkin’s position, as he also regards CJ as a principle that restores certain states of affairs.^{Footnote 23} Dworkin believes that CJ makes distributive shares concrete, and enforces DJ in this manner. His position overlaps with the one we have introduced above: both suggest that CJ protects distributive entitlements by establishing or restoring them, and thereby reduces to a mere tool for DJ.

The key to understanding these positions is to see that from the critics’ point of view, operating on entitlements means to protect these entitlements by restoring them. Since what constitutes a restoration is determined by the foundational principles of entitlements, CJ depends fully on those principles (here: a particular theory of DJ).

Response: Perry’s Corrective Interests Account

There are several points where the argument that CJ is dependent on distributive entitlements goes too far too fast without a firm basis.

– First, protecting entitlements does not necessarily mean restoring them.

– Second, operating on entitlements does not automatically mean protecting them, although this argument makes that assumption. CJ may not protect anything, or it may protect some other entitlements or interests.

– Third, it is an open question whether CJ indeed operates on distributive entitlements and what this means.

I will discuss these points in the context of two accounts, which provide the grounds for the independence of CJ.

Stephen Perry argues that while operating on the same legitimate entitlements as DJ, CJ is nevertheless independent. He defends the position that its independence is founded on the difference between the interests that CJ and DJ protect with regard to material resources—an idea that we first presented in response to the dynamic conception of DJ. CJ protects interests in the stability and integrity of material resources, while DJ protects interests in particular shares of these resources. In the following argument he develops this idea further, establishing a rich account of the grounds for the independence of the PCJ. He argues that:

He regards the legitimacy of the underlying holdings as sufficient for the existence of an entitlement not to be harmed. The claims of CJ are not based on the need to achieve certain distributive results, but rather create “moral obligation[s] to compensate” the harm the victim has suffered.^{Footnote 25} Insofar as the PCJ is based on the moral significance of harm, Perry believes that it is possible to distinguish the conceptual independence and normative independence of CJ from DJ.

Perry argues that corrective and DJ are conceptually independent of each other since they serve different purposes. They are conceptually independent because, “[C]orrective justice does not protect the entitlement qua distributive share, and its purpose is not to maintain or preserve a distributive scheme as such. Rather it protects a legitimate entitlement because interference with the entitlement harms the entitlement-holder. In that sense, corrective and [DJ] are conceptually independent.”^{Footnote 26}

Moreover, they are also to some extent normatively independent from each other. Perry argues that, “The harm-based view looks upon [CJ] as conceptually distinct from [DJ], and also in large measure as normatively distinct, because the two principles have different normative functions. One is concerned with the just distribution of resources, while the other is concerned with remedying harmful interactions between persons. But that does not mean there are no normative connections between the two principles; they are not, (…) completely independent from one another. Despite the possibility of a shortfall between moral legitimacy and ideal [DJ], a system of private property rights will generally only be morally legitimate if it is distributively just to at least some minimum degree. Thus, in the case of property interests, [CJ] generally operates on what we might loosely call distributive entitlements (‘loosely’, because of the possibility of shortfall). To that extent, corrective and [DJ] are normatively connected.”^{Footnote 27}

What does he mean by the functions of CJ and DJ? The function of CJ is to provide a remedy to persons who have been harmed in certain ways by other persons. The function of DJ is to provide society with a just system for allocating entitlements. These two systems operate on the same kinds of entitlements—distributive entitlements—, and are normatively connected since CJ operates on entitlements that are legitimate. At the same time, CJ is dependent on DJ only abstractly, because for the former to have applicability, the DJ system only has to be legitimate; not fully just. As Perry maintains, this difference in function makes the principles independent, but complementary to each other: “[T]he harm-based view of [CJ] is consistent with and complementary to, although it is conceptually independent of, an appropriate, abstractly-patterned theory of [DJ].”^{Footnote 28} This creates “the logical space” within which CJ is able to function independently of DJ.^{Footnote 29} As Perry writes, CJ is, so to speak, “transparent to [DJ].”^{Footnote 30}

We should understand Perry to argue that CJ protects legitimate entitlements because interference with the entitlement harms the entitlement-holder. It is important to understand that by protecting legitimate entitlements, he would not mean establishing or returning people to a state of legitimate entitlements that concerns the entire distributive system. Rather, he would suggest that CJ protects an interest in the stability of peoples’ material resources, which is different from DJ, which protects the interest in a just distribution and acquiring of one’s just share. CJ is concerned with remedying harmful interactions between persons and focuses on the interactions between a few people, while DJ is concerned with a just distribution of resources. The independence of CJ is based on the difference between the functions of the two principles.

Note that when Perry talks about the functions of these principles of justice, it is easy to interpret him as suggesting that they have purposes or goals. This is problematic in the case of CJ, because the pursuit of a goal is not an obvious part of its essence. Attributing a goal would require an additional justification. For example, when we consider the idea that CJ protects peoples’ interests in the stability of their resources, we do not consider the general stability of resources in a system to be a goal being pursued. CJ concerns peoples’ individual concerns in this regard like, for example, the stability of property rights, and the reliability of opportunities and options that their resources provide to them. We do not apply CJ in order to pursue a goal like stability on the level of society. However, peoples’ interest in the stability of resources is a factor in determining which losses ought to be repaired as a matter of CJ. What counts as a wrong depends on our political and moral considerations regarding (a) individual responsibility for one’s actions, and (b) protection of peoples’ resources against certain infringements. Among these, we certainly consider it important that people are able to conduct their lives while relying on their resources. Recognizing this interest, the PCJ protects those resources against wrongful infringements and thus, their stability. However, it does not promote stability as a goal. It is important to see that CJ is entirely coherent as a principle of justice without the attribution of an express purpose or a goal.

Response: Corrective Entitlements Account

What other grounds do we have for the independence of CJ? Now that we are familiar with Perry’s account, let us also discuss an alternative one, which, differently from Perry, rejects the idea that CJ operates on distributive entitlements.

In reference to the question whether CJ indeed operates on distributive entitlements, Peter Benson and Ernest Weinrib suggest defending its independence by showing it to operate on the basis of non-distributive or pre-distributive entitlements.^{Footnote 31} Benson writes that one way for the principle to preserve its distinctiveness from DJ, while at the same time remaining a principle of justice, is to operate on entitlements that are not distributive in nature. If these entitlements were based on non-distributive or pre-distributive principles, then the “Robin Hood defense” would not be available. The non-distributive entitlements could be defined as those that are not subject to DJ; including, for example, the entitlement to freedom from physical harm, etc.^{Footnote 32} Accordingly, for Benson and Weinrib, the source of independence is a different set of entitlements underlying CJ as compared with DJ. Here, they suggest the analogy of viewing each form of justice within its own self-contained normative sphere.^{Footnote 33}

Before we go further with this idea, we need to see where it could go wrong. In the current form, this account limits the scope of CJ to issues that concern freedom from physical harm and similar issues, whereas we do not view the principle as operating within such a narrow scope in our current practices; it also concerns material losses and other property-related wrongs.

Additionally, a similar problem of dependency to the one arising in the relationship between CJ and distributive entitlements may arise also in its relationship to non-distributive entitlements. It is fitting to refer here to Dennis Klimchuk, who has pointed out that CJ would not be independent if it protected non-distributive entitlements. It could simply reduce to their foundational principles, losing its distinctiveness since its task of restoring the entitlements is also the task of the foundational principle.^{Footnote 34}

However, as I see it, the problem of dependency might disappear if the entitlements in question were particular to CJ—corrective entitlements.

In one of his writings Benson makes the following statement: “A person who, through an external manifestation of will, has brought something under his or her present and exclusive control prior to others is, relative to those others, entitled to it in [CJ].”^{Footnote 35} Inherent in this claim is the idea that we could talk about corrective entitlements, i.e., being entitled to something in CJ. Accordingly, we could maintain that the PCJ operates on these corrective entitlements, not distributive entitlements or entitlements based on non-distributive foundational principles.

The corrective entitlements would be determined by our judgments regarding which losses are wrongful, in which circumstances one is eligible for repair, and in which circumstances one has a duty of repair. Indeed, these entitlements would concern both material resources as well as freedom from physical harm, but one’s entitlement to them under CJ would be different from one’s entitlement under DJ. If the claims of corrective and DJ conflict due to the fact that the distributive entitlements are different from the corrective entitlements, then we are merely faced with conflicting claims regarding the same resources. Most importantly, the claims of CJ would not reduce to DJ, or be fully explainable in distributive terms. This is particularly helpful in establishing the independence of CJ.

Notice that there is a difference between having a corrective entitlement (i.e., being entitled to something in CJ) and having a legitimate interest in the stability and integrity of one’s resources. It is true that CJ protects some interests, DJ others. At the same time, CJ does not protect the stability and integrity of one’s resources in all circumstances (e.g., we still need to pay taxes). It protects such interests specifically in circumstances where people are entitled to these resources in CJ. When people suffer a wrongful loss with regard to these resources, then they are entitled to a repair under CJ, even if from the point of view of DJ their entitlements are different.

Entitlement to Freedom from Interference with Personal Autonomy

What is the nature of the entitlements that CJ protects? If someone has a legitimate entitlement to something, then an interference with it is of significance. If the legitimate entitlement is also a corrective entitlement, then in the case of an interference that brings about a loss, CJ gives rise to the duty of repair. One way to understand corrective entitlements is to view them as entitlements to freedom from interference with one’s personal autonomy.

We can find this idea in the writings of Joseph Raz. The source of legitimacy of the entitlements that CJ protects is our general entitlement to freedom from interference with personal autonomy.^{Footnote 36} As Raz has argued, “[t]he main reason that personal injury constitutes harm is that it interferes with personal autonomy. It interferes, that is to say, with the set of opportunities and options from which one is able to choose what to do in one’s life.”^{Footnote 37} The idea is that we derive this entitlement from the value of having a set of opportunities and options from which one is able to choose what to do in one’s life. When anyone interferes with someone’s personal autonomy it constitutes a wrong (or, in the terminology that Raz and Perry use, harm).

Protecting these entitlements is a matter of CJ, for the following reason. If one is entitled to freedom from interference with his personal autonomy, then this constitutes duties for other people. When they breach those duties, they cause harm to the particular person whose personal autonomy they interfered with. One’s entitlement in this regard is not a matter of DJ, as the extent to which everyone has it does not depend on the system of allocation. Every person has an entitlement to make choices regarding what to do in one’s life from the opportunities and options available to them, whatever their distributive shares may be, as long as the opportunities and options are legitimate. Since the claims for freedom from interference with personal autonomy run against claims for just allocation of resources in society, they could not constitute claims under DJ. They are, rather, claims against the particular people who have interfered with one’s personal autonomy, consisting in the demand to end the wrongful interference and to compensate the losses that it caused.

There are many ways to interfere with personal autonomy.^{Footnote 38} Causing a personal injury to somebody interferes with the set of opportunities and options available to that person for directing their life.^{Footnote 39} Another way to interfere with personal autonomy is to damage or destroy a person’s property, as adversely affecting the use-value and exchange value of the property likewise diminishes his opportunities and options.^{Footnote 40}

Perry’s writings, which also refer to personal autonomy, are very helpful here. As he writes, “[CJ] applies in such cases because the owner of damaged property has suffered harm. She has, in fact, suffered the same general type of harm as she would have suffered had she been injured in her person.”^{Footnote 41} “The use-value and exchange-value of property both represent opportunities for the owner, and adversely affecting either type of value harms the owner precisely because it diminishes her opportunities. If her entitlement to the property is morally legitimate, then the interference with autonomy is morally significant and a remedy against inappropriate instances should be provided by the independent principle of repair.”^{Footnote 42}

The fact that at least some infringements of personal autonomy are wrong, and that the losses resulting from these wrongs can be best repaired by the means that help to preserve the person’s ability to direct her own life, lead us to a principle of justice. The structure of CJ, which triggers duties of repair for the wrongful losses that one’s conduct has caused, is particularly suitable for responding to individual claims in cases of interferences with personal autonomy. It, rather than DJ, operates on such an entitlement. While DJ protects interests in the just allocation of resources independent of whether one’s resources are legitimate or not, CJ protects peoples’ resources against certain infringements, whether or not they are distributively just.

Even more specifically, corrective entitlement is an entitlement to freedom from infringement to personal autonomy, which can only be provided through the stability and security of one’s resources. By giving rise to the duty to repair the wrongful losses caused in the case of these infringements, CJ promotes such stability and security of resources. In Raz’s terms, we would say that when the injurer repairs the infringement of personal autonomy that his conduct caused to the victim, then in essence he repairs the victim’s ability to direct her own life according to her particular set of opportunities and options.

Based on these considerations, we can distinguish corrective entitlements (as entitlements to freedom from interference with personal autonomy) from distributive entitlements (as entitlements to a just share in the resources of society). This distinction supports the notion that DJ could not define wrongful losses that trigger the application of CJ, because the latter operates on a different set of entitlements than the former.

Problem: Corrective Justice Serves Distributive Justice via Private Transactions

After comparing the two accounts above that propose the grounds of independence for CJ, we have a choice. Based on one of these options, following Benson, CJ is an independent principle, because it operates on corrective entitlements, which derive from the entitlement to freedom from interference with personal autonomy. Based on the second, it is an independent principle because while operating on the same legitimate entitlements as DJ, it has a distinct function—it protects different interests in material resources than the latter. This idea comes from Perry.

Before deciding in favor of either account, we need to consider one more argument for the dependency of CJ: it could promote DJ through private transactions and some suggest that this might be sufficient to consider CJ dependent upon DJ.^{Footnote 43}

While discussing the problem of dependency, we usually rely on a particular understanding of what it means to carry out DJ: either giving rise to or restoring a certain distribution of holdings in the society, while taking into account all participants in society and their distributively just shares. We know that CJ does not establish particular states of holdings in society, because it operates only in bilateral relationships giving rise to private transactions between particular people, who have respectively caused or suffered a wrongful loss in their relationship. Moreover, it is not concerned with providing people with their distributive entitlements, but with protecting the stability of their resources, and thus guaranteeing that they can choose what to do in their lives relying on the set of opportunities and options that they have available.

At the same time, it would be too simplistic to believe on a general level that the principles of justice (CJ among them) always protect entitlements by overriding private transactions with the purpose of restoring entitlements. It is more plausible that these principles regulate rather than replace private transactions.^{Footnote 44} We should, thus, consider the possibility that CJ could perform DJ via such transactions.

For example, Stephen Perry argued that whenever the system is not ideally distributively just, changes can be brought about only at the macro level by modifying taxation schemes, passing anti-trust legislation, and so on.^{Footnote 45} However, distributive improvements can also be brought about at the level of private transactions, and CJ may operate in such a distributive system as a tool for regulating such transactions, which in turn brings about distributive changes. The PCJ demands that one repair the wrongful losses that he caused to another person. If we define these wrongful losses in a manner that would be most beneficial with regard to DJ, then CJ would give rise to the duty of repair, when the losses are such that from a distributive standpoint it would be beneficial to repair them. By applying CJ, we could bring about a distributive improvement. Based on this, one could potentially argue that CJ serves DJ and, via this service-relationship, ultimately depends on it.

As stated above, the problem of dependency suggested that if the connection between the PCJ and the underlying principle of the duty of care is sufficiently loose, then almost any principle could fill the latter’s content. The suggestion here is that even if the above arguments correctly maintained that CJ focuses on protecting different interests and operates on different entitlements than distributive institutions then CJ would be performing DJ just like other distributive institutions, if the wrongful losses were defined according to DJ. The task of CJ, then, would be to protect the basic structure of distributive entitlements by regulating certain private transactions.

The problem is particularly distinct in a case where the requirement of CJ conflicts with DJ. Here, one can argue that CJ should not be applied as a tool, if its application would be distributively unjust. The only way to establish the principle’s independence in the face of this claim would be to show that the Robin Hood defense is inapplicable to the requirements of CJ, even though it may serve DJ by helping to achieve distributive ends via private transactions. As we will see below, Perry’s harm-based account, which grounds the independence of CJ on the idea that the principle has a unique function, is not sufficient here. Klimchuk’s distinction between the claims of CJ and DJ is more successful. At the same time, it is one thing to make a clear distinction between CJ and DJ, and another to show that CJ is independent of DJ. It seems to me that while Klimchuk can draw such a distinction, he cannot establish full independence. For this, we still need an additional account.

Problem: Rule-Consequentialist Service Relationship

We can model the problem of dependency related to the service relationship between CJ and DJ in rule-consequentialist terms. Let me explain this approach through a comparison with a deontological viewpoint.

Generally, deontological moral principles constitute constraints on maximizing consequences. The demands of deontological moral principles often conflict with the demands of consequentialist principles.^{Footnote 46} Just as moral principles are constraints upon self-interest on a personal level, deontological moral principles are constraints upon maximizing the welfare function on the social level. Drawing a parallel between these general views in normative ethics and the relationship between CJ and DJ, we can suggest that the PCJ functions as a constraint upon maximizing welfare on the social level. Just like deontological moral principles, it demands that people fulfill their duties of repair independent of the distributive circumstances that give rise to this duty. Similarly, it demands that people fulfill their duty of repair independent of the effects of the acts of repair on DJ.

Contrary to this general normative starting point, a rule-consequentialist would suggest that the application of constraints upon consequences might instead bring about better consequences than their non-application. Rule-consequentialist theories of morality suggest that rules should determine which kinds of acts are morally wrong whereas these rules should be selected solely on the basis of the goodness of their consequences (i.e., the consequences of their application or acceptance).^{Footnote 47} Unlike act-consequentialism, rule-consequentialism defends a position according to which the moral wrongness of an act is based on whether the act complies with a relevant rule, and thus the rule cannot be viewed as a mere guideline. According to rule-consequentialist normative theories, the existence of such rules allows the achievement of a greater good than their non-existence in a system of resources.

When we interpret the relationship between CJ and DJ along the lines of rule-consequentialism, we view the former in terms of a rule that imposes a constraint, and the latter in terms of consequentialism as described above. If it is true that the PCJ is such a rule allowing one to achieve greater DJ within a system, a rule-consequentialist account would suggest that it be accepted within such a system. In circumstances where a distributive system adopts CJ on rule-consequentialist grounds, we could justifiably view the principle as being in the service of DJ. By seemingly setting constraints on the pursuit of a more distributively just state, it in fact helps society to achieve greater DJ. In this context, critics argue that CJ is limited to operating only in distributive systems where it can contribute to the goal of achieving greater DJ. As such, it is dependent upon DJ.

The nature of dependency becomes even clearer if we look back at the “Robin Hood defense.” It defended the idea that if CJ operates on distributive entitlements, then the injuring party can in some instances argue that his infringement of the entitlement represents a distributive improvement. Thus, distributively speaking, it would be better from distributive standpoint if he did not have to pay compensation.^{Footnote 48} If the task of CJ is to protect the basic structure of distributive entitlements by regulating certain private transactions, then it would be powerless in the face of this claim. It would be bound to serve the distributive entitlements and not trigger the duty of repair if the wrongful loss represents a distributive improvement.

Interpreting the relationship between CJ and DJ on the rule-consequentialist model, we would have difficulties rejecting this argument. According to rule-consequentialism, the application of a rule is justified only to the extent that it brings about better consequences than non-application of the rule. This means that in circumstances where a wrongful loss represents a distributive improvement, which would be greater than the benefit from continued application of the rule (i.e., the PCJ), or whenever the benefit from non-application of the rule would be greater than the benefit from the application of the rule, one could claim that the demands of the rule should be disregarded.

The challenge is this: Does the PCJ serve DJ through private transactions, and can it be independent if it does? Many philosophers have recognized this as a serious problem.

Response: Klimchuk’s Distinction between Corrective and Distributive Claims

A successful response to the challenge would be to show that the PCJ remains independent of DJ, even when it serves DJ via private transactions. To this end, let us consider the idea that independence is simply a matter of being able to distinguish claims in CJ from those in DJ and following Dennis Klimchuk’s advice in this regard.

There is an account of CJ, which is very similar to Klimchuk’s. As we know, Perry argues that CJ is distinct from DJ because it has a different function regarding the same legitimate entitlements. As he suggests, this distinction between functions is sufficient for establishing that CJ does not enforce distributive entitlements, and is conceptually an independent principle of justice. However, it might have difficulties defending the independence of CJ in light of the possibility that CJ promotes DJ through private transactions. While Perry does tell us what is specific to CJ, he also claims that CJ operates on distributive entitlements. This means that nothing excludes the possibility that the two forms of justice have an impact on each other at the normative level and the demands of DJ override the demands of CJ (e.g., when applying Robin Hood defense) in case of particular transactions.

From Klimchuk’s point of view, there is nothing in the described situation, or in the rule-consequentialist description of the service relationship between CJ and DJ, which would necessitate drawing such conclusions. Instead, we could view the claims of CJ as conflicting with the claims of DJ. In this case, we would simply need a separate basis for deciding which claims prevail.

In Perry’s framework, CJ would be independent only if it operates on moral entitlements, and harm, which triggers the claims in CJ, would be defined pre-politically and non-distributively. Klimchuk saves Perry from these limitations and argues that it actually does not matter for the existence of an independent claim of repair whether the rights and entitlements underlying the claim ought to be protected as a matter of justice (non-conventionally), or as a matter of some convention. From his point of view, CJ is also independent when it operates on entitlements which we define, for example, through law. With this argument, Klimchuk establishes a broader basis for the independence of the PCJ than Perry.^{Footnote 49}

Unlike earlier accounts, which argued that the grounds for independence lie in the content of the entitlements that CJ protects, Klimchuk suggests asking what determines those protected entitlements. From his standpoint, the question of whether CJ operates on entitlements that are distributive or non-distributive in character is important, but we can settle the question about the independence of the principle without settling these other questions fully. The content of the foundation for CJ is important only to the extent that it conflicts with a positive account of the principle’s independence.

According to the view that Klimchuk calls the positive law thesis, “[CJ] takes as found the positive law’s measure of those interests which merit protection in individuals’ interactions with one another”.^{Footnote 50} Klimchuk believes that this thesis is correct, and is willing to accept the fact that among other possibilities, the positive law may protect a distribution which is substantially unjust. CJ, which protects the interests that positive law considers worth protecting, remains a principle of justice despite the fact that it protects interests which are distributively unjust and even not legitimate. Notice that according to Klimchuk, it could thus be a principle of justice even if it operated in a system of non-legitimate entitlements. As he claims, this is because the principle that those who impose wrongful losses must repair those losses (i.e., CJ) is no less a principle of justice whether what counts as a wrongful loss is measured against local conventions of property and protected interests, or against morality.^{Footnote 51}

Klimchuk contrasts his positive law thesis with the morality thesis that, in his opinion, characterizes Stephen Perry’s idea about the relationship between CJ and its underlying legitimate entitlements. According to the morality thesis, the system of entitlements must be minimally distributively just for CJ to operate, while according to the positive law thesis, CJ is a distinct moral principle which operates independently of whether the system of entitlements is distributively just.

In both cases, if the system of entitlements is not fully distributively just or is distributively unjust, then we are faced with a contest between the demands of CJ and those of DJ. According to the latter, it would be better if the wrongful losses were left where they fell. According to the former, it would be better if those who imposed the wrongful losses would repair those losses to those who suffered them. Does the competition between two groups of demands support the independence of CJ?

Klimchuk’s argument that claims under CJ can be clearly distinguished from claims under DJ supports the conceptual independence of the PCJ, to which Perry referred. At the same time, it might be seen as a drawback of this account that it does not help to establish the principle’s normative independence. It neither shows that CJ would not serve DJ under any circumstances, nor that the demands of DJ could not override it, which other authors have considered essential for proving that the principle is independent. Klimchuk argues that, on balance, distributive claims may sometimes override claims under CJ, but what is most important is that those latter claims are clearly distinguishable. The basis of independence for CJ is not that it is based on different entitlements than DJ, but that there is a distinction and a conflict between their respective claims. Moreover, the facts show that this conflict exists. One example of claims under CJ is the fact that one incurs the duty of repair in relation to a particular individual when he has caused a loss to that person, through an infringement of his non-distributive entitlement to personal autonomy. The loss would trigger the duty of repair even where the infringement represents a distributive improvement. Thus, Klimchuk is right in pointing out that some claims in CJ conflict with claims in DJ.

From his point of view, the competition between two groups of demands sets CJ apart from DJ. The former’s independence is guaranteed by the fact that it presents a separate group of demands which compete with those of DJ, and under no circumstances reduce to or serve the latter.

Response: Corrective Justice as a Constraint and a Condition for Legitimacy

There is even a stronger sense in which we can consider CJ an independent principle of justice. It is not only clearly distinguishable from DJ thanks to their competing demands, but also normatively independent, because considering its substantive content it could serve a system of DJ only as an independent constraint. In fact, we have a good reason to believe that if the PCJ is necessary for a distributive system then the dependency relationship would be turned and DJ would be dependent on CJ instead.

We will develop this account of independence with the help of David Gauthier’s and Jules L. Coleman’s work in the area of rational choice and political theory. Even though they do not intend to make a point about CJ, but only about rationality and its constraints, their arguments are also applicable in this debate.^{Footnote 52} The parallel between these different theories is as follows: Just as moral principles serve and are simultaneously constraints upon self-interest on a personal level, deontological moral principles are constraints upon maximizing the welfare function on the social level. In a similar manner, the PCJ is a constraint upon the aspirations of DJ.

According to Coleman, a person is rational if she seeks to maximize her utility function or her preferences.^{Footnote 53} “If her preferences represent her interests, then we might say that a rational person seeks to maximize her self-interest”.^{Footnote 54} Someone guided by morality sometimes constrains her self-interest and in this sense moral principles should be understood as constraints on the wish to maximize the utility function.^{Footnote 55} We see a clear tension between rationality and morality. The conflict between DJ and CJ, meanwhile, is essentially similar to the one between rationality and morality. In both cases, a moral principle constrains the maximization of a certain function: utility function in the first case, DJ in the second.

How should we explain the relationship between rationality and morality? Is it rational to constrain one’s rationality, and if so, under what conditions?^{Footnote 56} According to Coleman, it is clearly not rational to do so under conditions of perfect competition. In these circumstances, “each individual does as well as he or she can (given the behavior of others) by acting purely on the basis of self-interested rationality” and “individually rational choice leads to Pareto optimal outcomes that are Pareto superior to the origin”.^{Footnote 57} A rational actor would do less well by constraining her rationality under conditions of perfect rationality.^{Footnote 58} In all other situations, constraints are rational.

Gauthier advances the theory of constrained maximization.^{Footnote 59} According to the theory, constraints allow individuals to secure gains unavailable when the conditions of perfect competition are not satisfied.^{Footnote 60} How? A simple way to explain this is by modeling the conditions of imperfect competition according to the prisoner’s dilemma. “In the standard [prisoner’s dilemma], individually rational action leads to a suboptimal equilibrium. By definition, a suboptimal equilibrium is not Pareto optimal. That means that there are gains to be had. Ex hypothesi, these gains cannot be secured by individuals acting narrowly self-interestedly. Precisely such behavior generates the suboptimal equilibrium. In order to secure the gains, that is, in order to secure a Pareto optimal outcome, the parties must forego individually rational strategies in favor of a cooperative one. The cooperative strategy will require each individual to constrain his self-interest.”^{Footnote 61}

It is important to notice that only some cooperative strategies would work in these circumstances.^{Footnote 62} Coleman suggests, “[T]hinking of the market as itself a form of cooperation”.^{Footnote 63} Markets would be institutional arrangements that rational cooperators choose as the most appropriate for themselves, especially because they contribute to social stability “by allowing individuals to cooperate with one another over a broad range of areas without first having to share deep or controversial commitments about the nature of what is good or valuable in a life”.^{Footnote 64} Coleman emphasizes that markets are not valuable because of their efficiency, but because they contribute to liberal stability.^{Footnote 65} Market competition is itself a form of cooperation-by-competition, where competition presupposes cooperation.^{Footnote 66}

What does this imply about the PCJ? According to Coleman, one cooperative problem that the market needs to solve before it can operate concerns property—markets presuppose systems of property rights.^{Footnote 67} “Property rights (like moral constraints) are collective goods. Creating and sustaining collective goods is a cooperation problem (as is putting moral principles in place).”^{Footnote 68} As Coleman argues, a scheme of property rights, although clearly in each person’s rational interest, cannot emerge as a result of individually rational decisions or actions due to various structural problems like the prisoner’s dilemma. In cases like these, cooperation aids the creation of something that is in each person’s rational interest.^{Footnote 69} In the case of property rights, in particular, cooperation aids the creation and sustainment of a scheme of property rights because this allows markets to operate.^{Footnote 70}

In order for markets to indeed contribute to liberal stability, they need something that would ensure the stability of peoples’ property rights. CJ that protects people against various infringements of their rights (life, bodily security, and property) is perfect for this task. In essence, using Raz’s terms, CJ protects people against infringements of their personal autonomy: in case someone has suffered a wrongful loss, it repairs the victim’s ability to direct her own life according to her particular set of opportunities and options. Thanks to its particular focus on individuals’ corrective entitlements, it contributes to the stability of peoples’ rights, protects the cooperative mechanism of the markets, and is thus in each person’s rational interest.

The fact that CJ is necessary for the markets to ensure liberal stability shows that the principle’s acceptance could be not only beneficial but also necessary for any system of DJ, which includes markets. At the same time, it could be said that the principle serves the distributive system. The reason why this service relationship does not lead immediately to a dependency relationship is that while the distributive system “supports the acceptance of a principle” in its system, this is not equivalent to “having impact on the content of the principle”. The mere inclusion of the PCJ in a distributive system tells us only that the exercise of that principle as a constraint on the pursuit of DJ is valuable for achieving greater DJ. It tells us nothing about the precise content of the principle. Its acceptance would benefit a system of DJ only if the principle is brought into the system as a distinguishable and independent one, which would promote the stability of the distributive system at the price of constraining the pursuit of distributive goals.

Moreover, just as we consider a system of property rights necessary for the existence of a market, we could consider the PCJ necessary for the legitimacy of a distributive system. A distributive system could be illegitimate without CJ, because it would not have the necessary guarantees for the stability of people’s property rights and thus insufficient conditions for market type cooperation, which would be in everyone’s rational interest. If I am right and CJ is indeed necessary for any legitimate distributive system, then, on one hand, CJ would serve DJ; on the other hand, we could say that distributive system is dependent on CJ, because without the strict application of CJ the system of DJ would not be legitimate.

Notice that this type of relationship between CJ and DJ is not based on a rule-consequentialist model. Instead, we could talk about something like a strict constraint theory. Here, CJ is a constraint on the pursuit of distributive goals, independent of whether its application leads to greater DJ or not. It protects the stability of peoples’ property rights and more generally their corrective entitlement to personal autonomy. Without such a constraint, it would be irrational for us to cooperate. Accordingly, CJ would not be just beneficial for a distributive system. Without it, the distributive system would be illegitimate.

Conclusion: The Grounds for Independence

We have four accounts which defend different grounds for the independence of CJ: (1) Perry’s corrective interests account, (2) corrective entitlements account, (3) Klimchuk’s distinction account, and (4) strict constraint theory. Let me summarize them and point out where they overlap, as their shared ideas reveal the strongest grounds for independence.

According to Perry, CJ is an independent principle of justice due to its particular function—to protect people’s particular interests regarding their legitimate entitlements to tangible objects as well as to life and bodily security. Since interference with these entitlements harms the entitlement-holders, then correcting them is justified. In contrast, the function of DJ is to provide society with a just system for allocating entitlements. The two forms of justice operate both on distributive entitlements, and are thus normatively connected. At the same time, CJ is dependent on DJ only to the extent that it needs to be based on a legitimate distributive system to be applicable. As Perry writes, the principles are complementary to each other, while at the same time CJ is, so to speak, “transparent to DJ.”^{Footnote 71} Thanks to this transparency, it is also independent.

As Klimchuk points out, the only problem with this account is that in case of conflicting claims between CJ and DJ, distributive claims would probably prevail (especially considering the Robin Hood defense). This means that CJ might not be entirely independent from DJ after all, although Perry might argue that they make competing claims regarding the same legitimate entitlements. While Perry’s account has this weakness, the other three accounts build the independence of CJ on possibly stronger grounds.

Corrective entitlements account defends the independence of CJ on the grounds that the principle has nothing to do with distributive entitlements, because it operates only on corrective entitlements. We all have an entitlement to freedom from interference with personal autonomy as there is a value in having a set of opportunities and options from which one is able to choose what to do in one’s life. Every person has that entitlement, whatever their distributive shares may be, and it can be provided to them through the stability and security of their resources. Interference with the opportunities and options that we consider people to be entitled to and causing a loss triggers the application of CJ. Since the claims for freedom from interference with personal autonomy (i.e., claims of CJ) run against claims for just allocation of resources in society, they could not constitute claims under DJ.

From Klimchuk’s point of view, the independence of CJ is guaranteed by the fact that it presents a separate group of demands which compete with those of DJ, and under no circumstances reduce to or serve the latter. CJ, which protects the interests that positive law considers worth protecting, remains a principle of justice whether it protects interests which are distributively just or unjust. It could be a principle of justice even if it operated in a system of non-legitimate entitlements. This is because the principle that those who impose wrongful losses must repair those losses (i.e., CJ) is no less a principle of justice whether what counts as a wrongful loss is measured against local conventions of property and protected interests, or against morality.^{Footnote 72}

According to strict constraint theory, a distributive system would be illegitimate without CJ, because it would not have the necessary guarantees for the stability of people’s property rights and thus insufficient conditions for market type cooperation, which would be in everyone’s rational interest. Accordingly, on one hand, CJ serves DJ; on the other hand, distributive system is dependent on CJ, because without the strict application of CJ as a constraint, the system of DJ would not be legitimate.

There are certain aspects of CJ and its relationship with DJ, which all three latter accounts—corrective entitlements, Klimchuk’s distinction, and strict constraint account—would be ready to accept. These common positions establish the strongest grounds for its independence. All these theories are ready to defend the ideas that:

1. 1. The demands of CJ conflict and compete with the demands of DJ,

2. 2. The role of distributive entitlements is insignificant in determining the content of CJ, and

3. 3. CJ provides guarantees for the stability of people’s property rights, whatever they happen to be, whereas DJ could not do that, unless it included an independent PCJ as a constraint on the pursuit of distributive goals.

These are strong and reliable grounds, whether we consider CJ to operate on distributive or corrective entitlements, and whether we consider it to be in a rule-consequentialist or constraint-type relationship with DJ. They are sufficient to conclude that CJ is indeed an independent principle of justice. As the strict constraint theory suggests, it could potentially also be a prerequisite for the legitimacy of a distributive system. Whether it is depends on our political and moral considerations.

Moreover, if we extended the analysis of dependency from DJ to other principles like efficiency or welfare maximization, which CJ might serve according to critics, we would find that its independence could be based on similar grounds. Since CJ imposes a particular responsibility for repairing the wrongful loss in front of the person who suffered it, the demands of CJ are clearly distinct from those of other principles. They would compete and conflict with the demands of efficiency and welfare maximization, just like with the demands of DJ.

Furthermore, the application of PCJ is limited (to the conditions of human agency, bilateral relations between particular persons, impartiality to distributive patterns, wealth neutrality, distributive status neutrality, and backward-looking approach), which clearly conflicts with the content of the said principles. Its characteristics make CJ particularly suitable for providing guarantees for the stability of people’s property rights and market type cooperation, which is in everyone’s rational interest. The other principles could not do that unless they included an independent PCJ as a constraint on the pursuit of their respective goals.

This is sufficient to conclude that CJ is indeed an independent principle of justice. Additionally, as the strict constraint theory showed, CJ could be actually a prerequisite for the legitimacy of any distributive system, which includes a market, since it provides the guarantees for the stability of people’s property rights and market type cooperation This would mean that DJ would depend on CJ instead, not, as critics have suggested so far, the other way around.