David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Law and Philosophy 22 (1):21-73 (2003)
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.
|Keywords||Law Logic Philosophy of Law Law Theory/Law Philosophy Political Science Social Issues|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
John Oberdiek (2008). Philosophical Issues in Tort Law. Philosophy Compass 3 (4):734-748.
Similar books and articles
Christopher J. Robinette, Can There Be a Unified Theory of Torts? A Pluralist Suggestion From History and Doctrine.
Larry A. Alexander (1987). Causation and Corrective Justice: Does Tort Law Make Sense? [REVIEW] Law and Philosophy 6 (1):1 - 23.
Ernest J. Weinrib (1983). Toward a Moral Theory of Negligence Law. Law and Philosophy 2 (1):37 - 62.
Jules L. Coleman (1983). Moral Theories of Torts: Their Scope and Limits: Part II. [REVIEW] Law and Philosophy 2 (1):5 - 36.
Jules L. Coleman (1982). Moral Theories of Torts: Their Scope and Limits: Part I. [REVIEW] Law and Philosophy 1 (3):371 - 390.
William Martin (1999). Aristotle and Posner on Corrective Justice. Business Ethics Quarterly 9 (4):651-657.
Gerald J. Postema (ed.) (2001). Philosophy and the Law of Torts. Cambridge University Press.
John Gardner (2011). What is Tort Law For? Part 1. The Place of Corrective Justice. Law and Philosophy 30 (1):1-50.
Added to index2009-01-28
Total downloads47 ( #72,555 of 1,726,249 )
Recent downloads (6 months)6 ( #118,705 of 1,726,249 )
How can I increase my downloads?