What is Tort Law For? The Place of Corrective Justice

2019 ◽  
pp. 27-78
Author(s):  
John Gardner
Keyword(s):  
Tort Law ◽  
Corrective Justice

This chapter considers the question of what tort law is for, building on the work of Jules Coleman and Ernest Weinrib. Weinrib claims that tort law itself is a justificatory enterprise, but he equivocates about whether he, in invoking corrective justice, is in turn attempting to justify the justificatory enterprise of tort law. Coleman denies that his enterprise of explaining tort law in terms of corrective justice is a justificatory one to explore, and ultimately to affirm, the view. The chapter argues that any complete explanation of tort law—whatever other considerations it may invoke—cannot but invoke considerations of corrective justice. Considerations of corrective justice cannot be reduced out. They are necessary even if not sufficient.

scholarly journals Treating Wrongs as Wrongs: An Expressive Argument for Tort Law

2018 ◽  
Vol 10 (2) ◽  
pp. 405-447 ◽  
Author(s):  
Scott Hershovitz
Keyword(s):  
Criminal Law ◽  
Tort Law ◽  
Tort Reform ◽  
Corrective Justice ◽  
Social Standing ◽  
Tort Liability ◽  
Criminal Punishment ◽  
Expressive Function ◽  
The Social ◽  
The Way

AbstractThe idea that criminal punishment carries a message of condemnation is as commonplace as could be. Indeed, many think that condemnation is the mark of punishment, distinguishing it from other sorts of penalties or burdens. But for all that torts and crimes share in common, nearly no one thinks that tort has similar expressive aims. And that is unfortunate, as the truth is that tort is very much an expressive institution, with messages to send that are different, but no less important, than those conveyed by the criminal law. In this essay, I argue that tort liability expresses the judgment that the defendant wronged the plaintiff. And I explain why it is important to have an institution that expresses that judgment. I argue that we need ways of treating wrongs as wrongs, so that we can vindicate the social standing of victims. Along the way, I consider the continuity between tort and revenge, and I suggest a new way of thinking about corrective justice and the role that tort plays in dispensing it. I conclude by sketching an agenda for tort reform that would improve tort’s ability to serve its expressive function.

1. Overview of tort law

2021 ◽  
pp. 3-26
Author(s):  
Christian Witting
Keyword(s):  
Tort Law ◽  
Corrective Justice ◽  
Theoretical Perspectives ◽  
History Of ◽  
The Law ◽  
Rights And Interests

This chapter provides an overview of tort law. It explains that tort law is a branch of the law of obligations which imposes liability for the breach of norms of conduct based on the type of interest at stake and/or the degree of fault present in the defendant. It provides a brief history of tort law. It then moves on to discuss the rights and interests protected by tort law. The chapter considers also theoretical perspectives on tort law. These concern such things as the bases of tortious liability and the issue of whether tort law should serve individual (eg, corrective justice) or social (eg, deterrence) goals.

1. Introduction

2017 ◽  
Author(s):  
Kirsty Horsey ◽  
Erika Rackley
Keyword(s):  
Tort Law ◽  
Corrective Justice ◽  
Good Knowledge ◽  
Loss Distribution ◽  
The Law ◽  
The Individual

This introductory chapter begins by providing examples of torts. It then discusses the aims of the law of torts, the most significant being compensation and deterrence. Part of the justification for a tort is that it identifies what actions should be avoided and deters people from engaging in them. It is essential to know that action is wrongful, but a tort action may over-deter or under-deter. It may over-deter where the perception of the chance of liability is exaggerated. It may under-deter where either the chances of somebody suing to enforce their rights are small, or where the consequences to the individual tortfeasor may be slight. Originally tort was about ‘shifting’ or ‘transferring’ the loss from the victim to the defendant (corrective justice). The defendant themselves paid compensation to the victim. However, those days are gone and we are now in an era of ‘loss distribution’. In other words, it is not the defendant himself who pays, but it will be their, or their employer’s, insurer. The chapter then considers the study of torts. Tort law is almost wholly a case-driven subject and therefore a good knowledge of the cases and what they stand for is essential. The chapter presents three steps to studying cases.

Tort Law, Corrective Justice and the Problem of Autonomous-Machine-Caused Harm

2020 ◽  
pp. 1-43
Author(s):  
Pinchas Huberman
Keyword(s):  
Tort Law ◽  
Corrective Justice ◽  
Tort Liability ◽  
Proximate Causation ◽  
Autonomous Machines ◽  
Learning Capabilities ◽  
Autonomous Machine ◽  
Theoretical Issues ◽  
Harmful Effects ◽  
And Robotics

Developments in artificial intelligence and robotics promise increased interaction between humans and autonomous machines, presenting novel risks of accidental harm to individuals and property.1 This essay situates the problem of autonomous-machine-caused harm within the doctrinal and theoretical framework of tort law, conceived of as a practice of corrective justice. The possibility of autonomous-machine-caused harm generates fresh doctrinal and theoretical issues for assigning tort liability. Due to machine-learning capabilities, harmful effects of autonomous machines may be untraceable to tortious actions of designers, manufacturers or users.2 As a result, traditional tort doctrine—framed by conditions of foreseeability and proximate causation—would not ground liability.3 Without recourse to compensation, faultless victims bear the accident costs of autonomous machines. This doctrinal outcome reflects possible incompatibility between tort’s theoretical structure of corrective justice and accidents involving autonomous machines. As a practice of corrective justice, tort liability draws a normative link between particular defendants and plaintiffs, as doers and sufferers of the same tortious harm, grounding defendants’ agent-specific obligations to repair the harm. Where accidents are caused by autonomous machines, the argument goes, the essential link between defendants and plaintiffs is severed; since resulting harm is not legally attributable to the human agency of designers, manufacturers or users, victims have no remedy in tort.

Aristotle and Posner on Corrective Justice: The Tortoise and the Hare

1999 ◽  
Vol 9 (4) ◽  
pp. 651-657 ◽  
Author(s):  
Bill Shaw ◽  
William Martin
Keyword(s):  
Economic Theory ◽  
Tort Law ◽  
Corrective Justice ◽  
Significant Component ◽  
Theory Of Law

Abstract:This paper examines judge Richard A. Posner’s “The Concept of Corrective Justice in Recent Theories of Tort Law,” as well as a restatement 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.

A reasonable woman standard in sexual harassment litigation

Legal Studies ◽  
1999 ◽  
Vol 19 (4) ◽  
pp. 552-579 ◽  
Author(s):  
Giorgio Monti
Keyword(s):  
Sexual Harassment ◽  
Sex Discrimination ◽  
Tort Law ◽  
Case Law ◽  
Feminist Perspective ◽  
Corrective Justice ◽  
Reasonable Woman Standard ◽  
Gender Specific

Sexual harassment litigation may be thwarted by judges failing to address the acts in question from the perspective of the victim, thus legitimising behaviour acceptable to men but unacceptable to women. This paper shows how this problem may be overcome by adopting a ‘reasonable woman’ standard to decide if: (i) objectively, the acts in question constitute harassment; and (ii) subjectively, whether the victim suffered injury. Using US case law the paper shows how the reasonable woman standard, which has been accepted in some courts, can allow women's perspectives to be heard. The paper suggests that a reasonable woman standard should be adopted in UK tort law, specifically in litigation under the Sex Discrimination Act, but also for litigation under trespass torts and under the Protection from Harassment Act. Doctrinally, the proposed standard fits within the fabric of tort la; and does not challenge the principle of corrective justice. From a feminist perspective, the reasonable woman standard can successfully redirect tort law to address gender-specific harms.

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