Moral theories of torts: Their scope and limits: Part II [Book Review]

Law and Philosophy 2 (1):5 - 36 (1983)
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 - in the sense of rational reconstruction based on alleged moral principles - 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 ones 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 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 victim's claim 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.
Keywords No keywords specified (fix it)
Categories (categorize this paper)
DOI 10.1007/BF00145311
 Save to my reading list
Follow the author(s)
My bibliography
Export citation
Find it on Scholar
Edit this record
Mark as duplicate
Revision history
Request removal from index
Download options
Our Archive

Upload a copy of this paper     Check publisher's policy     Papers currently archived: 28,829
Through your library
References found in this work BETA

No references found.

Add more references

Citations of this work BETA

Add more citations

Similar books and articles

Monthly downloads

Added to index


Total downloads

28 ( #185,059 of 2,178,180 )

Recent downloads (6 months)

1 ( #316,504 of 2,178,180 )

How can I increase my downloads?

My notes
Sign in to use this feature

There  are no threads in this forum
Nothing in this forum yet.

Other forums