The Justice in Unjust Enrichment

The question of what justice has to do with the law of unjust enrichment (if it has anything to do with it at all) has in recent years come to occupy scholars who have sought to explain the theoretical foundations of this area of law and its relationship with other branches of private law. A popular answer has been that the law of unjust enrichment, like the rest of private law, instantiates the politically neutral norms of corrective justice. In this article, I argue that this is not the case in two distinct senses. First, even on its own, corrective justice does not provide a satisfactory grounding for this area of law (or, for that matter, for other branches of private law). Second, parts of the law of unjust enrichment are explained by competing notions of justice. I consider some of them in this article, and I show that what all of them have in common is that they are grounded in considerations of distributive justice or that they are part of a political theory. In the concluding sections of the article, I offer a way of reconciling these political foundations of unjust enrichment law with private law’s seeming indifference to distributive considerations. I do this by calling attention to the institutional constraints under which courts operate. I argue that while such constraints are essential for understanding private law adjudication, they do not challenge the political foundations of private law, and they undermine many of the practical recommendations for private law offered by corrective justice theorists.