scholarly journals RESTITUTION AND CORRECTIVE JUSTICE IN THE ARISTOTELIAN SCHOLASTIC TRADITION: THE CONTRIBUTION OF FRANCISCO SUÁREZ (1548-1617)

2020 ◽  
Vol 15 ◽  
pp. 221-254
Author(s):  
Sebastián Contreras Aguirre ◽  
Author(s):  
Richard Adelstein

This chapter distinguishes torts from crimes in terms of the moral costs created by crimes, discusses the nature and incidence of these costs and the problems of assigning liability prices to compensate for them, and describes criminal liability as organized vengeance, a means of inflicting visible, proportioned suffering on offenders as compensation for the moral costs imposed by crimes. The ideas of retribution and deterrence are illustrated in the case of competitive market prices, which also separate efficient from inefficient cost imposition through retribution. Criminal entitlements are defined and distinguished from tortious entitlements, and the differences and connections between tort and criminal liability are explored. In seeking punishment that fits the crime in every case, criminal liability also seeks corrective justice, in this context called proportional punishment, rather than absolute deterrence, and through retributive liability pricing effectively encourages crimes whose value to the perpetrator exceeds the moral costs they impose.


Author(s):  
Richard Adelstein

Torts are involuntary seizures of entitlements of a certain kind in a particular exchange environment, and tort liability attempts to ensure that tortfeasors compensate their victims for the costs these takings impose. Liability is the law’s answer to externality. It doesn’t seek to deter torts absolutely, but to control them through the principle of corrective justice, which separates efficient from inefficient torts by liability prices and deters only the latter. This chapter examines how these involuntary exchanges are governed by tort liability to do corrective justice and imperfectly completed through individual and class action tort suits for compensatory damages. Tort liability is shown to effectively encourage efficient torts, in which the value of the unlawful cost imposition to the tortfeasor exceeds the external costs of the tort, and thus provide a means to move entitlements to higher-valuing owners in an environment of involuntary takings by private takers.


Ethics ◽  
1980 ◽  
Vol 90 (2) ◽  
pp. 180-190 ◽  
Author(s):  
Christopher Arnold
Keyword(s):  

1999 ◽  
Vol 98 (1) ◽  
pp. 138 ◽  
Author(s):  
Hanoch Dagan
Keyword(s):  

2018 ◽  
Vol 10 (2) ◽  
pp. 405-447 ◽  
Author(s):  
Scott Hershovitz

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.


Legal Theory ◽  
2006 ◽  
Vol 12 (2) ◽  
pp. 137-156
Author(s):  
Peter Jaffey

Private law is generally formulated in terms of right–duty relations, and accordingly, private-law claims are understood to arise from breaches of duty, or wrongs. Some claims are not easy to explain on this basis because the claim arises from an act that the defendant was justified in doing. The violation/infringement distinction seems to offer an explanation of such claims, but it is argued that the explanation is illusory. Claims of this sort are best understood as based not on a primary right–duty relation at all but on a “primary liability” or “right–liability” relation. A primary-liability claim is not a claim arising from the breach of a strict-liability duty. The recognition of primary-liability claims does not involve skepticism about duties or rules or legal relations and it is consistent with the analysis of private law in terms of corrective justice.


2017 ◽  
Vol 30 (1) ◽  
pp. 4-27 ◽  
Author(s):  
Stephen Clucas

The Animadversiones in Elementorum Philosophiae by a little known Flemish scholar G. Moranus, published in Brussels in 1655 was an early European response to Hobbes’s De Corpore. Although it is has been referred to by various Hobbes scholars, such as Noel Malcolm, Doug Jesseph, and Alexander Bird it has been little studied. Previous scholarship has tended to focus on the mathematical criticisms of André Tacquet which Moranus included in the form of a letter in his volume. Moranus’s philosophical objections to Hobbes’s natural philosophy offer a fascinating picture of the critical reception of Hobbes’s work by a religious writer trained in the late Scholastic tradition. Moranus’s opening criticism clearly shows that he is unhappy with Hobbes’s exclusion of the divine and the immaterial from natural philosophy. He asks what authority Hobbes has for breaking with the common understanding of philosophy, as defined by Cicero ‘the knowledge of things human and divine’. He also offers natural philosophical and theological criticisms of Hobbes for overlooking the generation of things involved in the Creation. He also attacks the natural philosophical underpinning of Hobbes’s civil philosophy. In this paper I look at a number of philosophical topics which Moranus criticised in Hobbes’s work, including his mechanical psychology, his theory of imaginary space, his use of the concept of accidents, his blurring of the distinction between the human being and the animal, and his theories of motion. Moranus’s criticisms, which are a mixture of philosophical and theological objections, gives us some clear indications of what made Hobbes’ natural philosophy controversial amongst his contemporaries, and sheds new light on the early continental reception of Hobbes’s work.


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