Autonomy, relational justice and the law of restitution

This chapter considers the law of restitution to reflect a variety of different social values in different contexts, not any, single one. It argues that restitutionary rules aim (or should aim) to promote the autonomy of individuals in a positive, perfectionist liberal sense that makes them fully self-determining agents. This commitment to autonomy is markedly different to the idea of some corrective justice scholars that the law is concerned only to correct interferences with individuals’ purposes. It demands the endorsement of substantive, not merely formal, equality and requires account be taken of human difference and interdependence. Applying this model to the mistaken payment case, restitution is justified because, although the defendant did nothing wrong in receiving the payment (and did not therefore interfere with the plaintiff’s entitlements), he is under a duty to assist the plaintiff by returning the money, in order to respect and promote the plaintiff’s autonomous choices about what to do with it (and therefore his life). The defendant’s own autonomy is also protected by granting him a defence of change of position if he has made choices of his own in the meantime. Further, the rules governing restitution of mistaken payments should reflect differences in the power and informational sophistication of the parties, so that restitution should be more easily available to individuals from banks than vice versa. This analysis of the law as perfecting a form of ‘relational justice’ is further extended to cases in which the plaintiff benefits the defendant by advancing a joint project, cases of cohabitation and cases involving fiduciaries and intimates. Key components of the theory are that it is a legitimate part of the law of restitution’s function to further welfarist public values and that one of these values is freedom – understood not simply negatively (protection against interferences with one’s purposes, or what is one’s own), but positively – comprising access to what one needs to be a fully autonomous, self-determining person.