Online research in philosophy

One approach to legal theory is to provide some sort of rational reconstruction of all or of a large body of the common law. For philosophers of law this has usually meant trying to rationalize a body of law under one or another principle of justice. This paper explores the efforts of the leading tort theorists to provide a moral basis — for the law of torts. The paper is divided into two parts. In the first part I consider and reject the view that tort law is best understood as falling either within the ambit of the principle of retributive justice, a comprehensive theory of moral responsibility, or an ideal of fairness inherent in the idea that one should impose on others only those risks others impose on one. The second part of the paper distinguishes among various conceptions of corrective or compensatory justice and considers arguments — including previous arguments by the author himself — to the effect that tort law is best understood as rooted in principles of corrective justice. This paper argues that although the use of principles of justice may render defensible many (but by no means all) of the claims to repair and to liability recognized in torts, it cannot explain why we have adopted a tort system as the approach to vindicating those claims. Some other principle — probably not one of justice — is needed to explain why it is that the victims claims to repair is satisfied by having his losses shifted to his injurer — rather than through some other means of doing so. The paper concludes that the law of torts cannot be understood — in the sense of being given a rational reconstruction — under any one principle of morality.

This paper is a reading of Aristotle's book on justice (Book V of the Ethics) as what he says it is, a study of the disposition or inclination towards doing just (or unjust) acts. In that light, the content of Aristotle's famous treatments of distributive and corrective justice are only incidental, for their true role is as clues to a meaningful picture of the Just and the Unjust person. Aristotle's treatment of Being Just as a specific virtue is the most detailed treatment he offers of any moral virtue. Being Just as distributive justice emerges as a commitment to the equal treatment of all citizens, but to an equality tempered by always contentious considerations of merited reward. Being Just as corrective justice is a commitment to protecting and repairing the sphere of each person's dignity and opportunity from damaging and sometimes malicious interactions. But more is required. For Being Just means overcoming the disordered and misdirected desire that both Aristotle and Plato call "pleonexia", wanting - tyrant-like - more-of-and-more-than. If that is overcome by re-directed libido, the virtuous will then have to integrate more subtle elements if they are to achieve an inclination to this tempered, but real equality. These elements are two. One is present only implicitly, the passion Aristotle calls nemesis, a demand that the world - and justice within the world - must never permit an evil person to go unpunished or a good one, to suffer harm. That passion cannot be admitted, but at best can only be temporarily stilled. The second impediment arises from the dynamic of human communities that are made up of diverse and actively striving individuals: such citizens, haunted by suspicion grounded in their own pleonexia, demand that the community be one of laws. That creates a true dilemma, for in Aristotle's estimation, no set of rules can cabin any virtue. The Rule of Law is in tension with the particularity of justice in real life, and that tension is ultimately only bearable through the invention of equity, the trusted deviation from the law to preserve the law. In making this abstract I have had to leave untouched the subject matter of the first and two last chapters, but in my paper I do treat these. More importantly, I also show how all political community and the inclination to seek to be a Just Person rests on a gracious act of reciprocal commitment.

Introduction -- The starting point : Aristotle's classification of justice -- High scholastics -- Late scholastics -- A special theological problem : divine justice -- Jewish commentators -- Post scholastic writers -- The modern use of Aristotle's forms of justice.

“Virtue jurisprudence” is a normative and explanatory theory of law that utilises the resources of virtue ethics to answer the central questions of legal theory. The main focus of this essay is the development of a virtue–centred theory of judging. The exposition of the theory begins with exploration of defects in judicial character, such as corruption and incompetence. Next, an account of judicial virtue is introduced. This includes judicial wisdom, a form of phronesis, or sound practical judgement. A virtue–centred account of justice is defended against the argument that theories of fairness are prior to theories of justice. The centrality of virtue as a character trait can be drawn out by analysing the virtue of justice into constituent elements. These include judicial impartiality (even–handed sympathy for those affected by adjudication) and judicial integrity (respect for the law and concern for its coherence). The essay argues that a virtue–centred theory accounts for the role that virtuous practical judgement plays in the application of rules to particular fact situations. Moreover, it contends that a virtue–centred theory of judging can best account for the phenomenon of lawful judicial disagreement. Finally, a virtue–centred approach best accounts for the practice of equity, departure from the rules based on the judge’s appreciation of the particular characteristics of individual fact situations. [ABSTRACT FROM AUTHOR].

People currently regard justice as the main principle of institutions and society, while in ancient Greek people took it as the virtue of citizens. This article analyzes Aristotle’s virtue of justice in his method of virtue ethics, discussing the nature of virtue, how justice is the virtue of citizens, what kind of virtue the justice of citizens is, and the prospect of the virtue of justice against a background of institutional justice. Since virtue can be said to be a specific individual character, Aristotle also defines the virtue of justice as the character of justice, with which citizens act justly and desire to do what is just. The virtue of justice is also an individual ethical virtue, differing from others for it is at the same time a social ethic. We can call the virtue of justice a “non-individual individual ethical virtue.” It has been explained as between pure altruism and egoism, which is a wrong explanation. John Rawls regards justice as the first virtue of social institutions, challenging Aristotle’s virtue of justice, an assertion which also needs further deliberation.

In A Theory of Justice, Rawls makes almost no mention of the issues of justice that animated philosophers in earlier centuries. There is no discussion of justice between persons, issues that Aristotle sought to explain under the idea of “corrective justice.” Nor is there discussion, except in passing, of punishment, another primary focus of the social contract approaches of Locke, Rousseau and Kant.1 My aim in this article is to argue that implicit in Rawls’s writing is a powerful and persuasive account of the normative significance of tort law and corrective justice.

In this paper I discuss the proposal that the law of torts exists to do justice, more specifically corrective justice, between the parties to a tort case. My aims include clarifying the proposal and defending it against some objections (as well as saving it from some defences that it could do without). Gradually the paper turns to a discussion of the rationale for doing corrective justice. I defend what I call the ‘continuity thesis’ according to which at least part of the rationale for doing corrective justice is to mitigate one’s wrongs, including one’s torts. I try to show how much of the law of torts this thesis helps to explain, but also what it leaves unexplained. In the process I show (what I will discuss in a later companion paper) that ‘corrective justice’ cannot be a complete answer to the question of what tort law is for.

This paper explores how the widely acknowledged conception of tort law as corrective justice is to be applied to the law of negligence. Corrective justice is an ordering of transactions between two parties which restores them to an antecedent equality. It is thus incompatible with the comprehensive aggregation of utilitarianism, and it stands in easy harmony with Kantian moral notions. This conception of negligence law excludes both maximizing theories, such as Holmes' and Posner's, and Fried's risk pool, which combines Kantianism with distributive rather than corrective justice.Central to the Kantian approach is the impermissibility of self-preference. The two types of self-preference, self-preference in conception and self-preference in action can respectively account for the objective standard and the Learned Hand test, which are the two most characteristic features of negligence and which are generally (and wrongly) considered to be inescapably aggregative. This corrective justice conception of the negligence standard can then be compared to Epstein's corrective justice conception of strict liability, and arguments can be offered in favour of the superiority of the former.

This paper examines judge Richard A. Posner’s “The Concept of Corrective Justice in Recent Theories of Tort Law,” as well as arestatement of that position in The Problems of Jurisprudence, and argues that Judge Posner has mistakenly claimed Aristotle’s notion of corrective justice as a significant component of the economic theory of law.

This article offers a refutation of the corrective justice interpretation of tort law – the view that it is essentially a system of corrective justice. It introduces a distinction between primary and secondary tort duties and claims that tort law is best understood as the union of its primary and secondary duties. It then advances two independent criticisms of the corrective justice interpretation. The article first argues that primary tort duties have nothing fundamentally to do with corrective justice and that, if one understands what is meant by ``primary tort duties,'' one is compelled to regard this fact as a decisive objection to the corrective justice interpretation. Second, it argues that, whatever relation there is between secondary tort duties and corrective justice, that relation also holds between corrective justice and secondary duties of other legal branches. In sum, the concept of corrective justice is neither capable of unifying tort law nor of demarcating it from other legal branches.The article also offers a general alternative interpretation of tort law. Rather than being essentially corrective, tort law is essentially protective. Under this picture, if tort law has a most important point, it is the protection of legal subjects and valuable social interests from harm. This is the overarching ambition that unifies primary and secondary tort duties. It does not, however, demarcate tort law from other legal branches.