David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Law and Philosophy 2 (1):37 - 62 (1983)
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.
|Keywords||No keywords specified (fix it)|
|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
Ernest J. Weinrib (1989). Aristotle's Forms of Justice. Ratio Juris 2 (3):211-226.
Similar books and articles
Ori J. Herstein (2010). Responsibility in Negligence: Why the Duty of Care is Not a Duty “To Try”. Canadian Journal of Law and Jurisprudence 23 (2):403-428.
Kenneth W. Simons (1999). Negligence. Social Philosophy and Policy 16 (02):52-.
Toby Handfield & Trevor Pisciotta (2005). Is the Risk–Liability Theory Compatible with Negligence Law? Legal Theory 11 (4):387-404.
Gerald J. Postema (ed.) (2001). Philosophy and the Law of Torts. Cambridge University Press.
H. Sheinman (2003). Tort Law and Corrective Justice. Law and Philosophy 22 (1):21-73.
William Martin (1999). Aristotle and Posner on Corrective Justice. Business Ethics Quarterly 9 (4):651-657.
John Gardner (2011). What is Tort Law For? Part 1. The Place of Corrective Justice. Law and Philosophy 30 (1):1-50.
Joseph Raz (2010). Responsibility and the Negligence Standard. Oxford Journal of Legal Studies 30 (1):1-18.
Randall R. Curren (1992). A Causal Theory of Negligence. Social Philosophy Today 7:111-124.
Added to index2009-01-28
Total downloads77 ( #21,041 of 1,413,284 )
Recent downloads (6 months)1 ( #154,925 of 1,413,284 )
How can I increase my downloads?