Tort law and corrective justice

Law and Philosophy 22 (1):21-73 (2003)
  Copy   BIBTEX


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.



    Upload a copy of this work     Papers currently archived: 92,907

External links

Setup an account with your affiliations in order to access resources via your University's proxy server

Through your library


Added to PP

98 (#180,469)

6 months
7 (#486,539)

Historical graph of downloads
How can I increase my downloads?

Author's Profile

Hanoch Sheinman
Bar-Ilan University, Ramat Gan

Citations of this work

Philosophical issues in tort law.John Oberdiek - 2008 - Philosophy Compass 3 (4):734-748.
Is the role of tort to repair wrongful losses?Gregory C. Keating - 2012 - In Donal Nolan & Andrew Robertson (eds.), Rights and private law. Portland, Oregon: Hart.

Add more citations

References found in this work

No references found.

Add more references