Theories of Tort Law

A tort is a legal wrong. Tort law is a branch of the civil law;

the other main branches are contract and property law.
Whereas in criminal law the plaintiff is always the state and
the defendant, if found guilty of a crime, is punished by the
state, in civil law the dispute is typically between private
parties (though the government can also sue and be sued). In
the case of torts, the plaintiff is the victim of an alleged wrong
and the unsuccessful defendant is either directed by the court
to pay damages to the plaintiff (the usual remedy) or else to
desist from the wrongful activity (so-called "injunctive
relief"). Examples include intentional torts such as battery,
defamation, and invasion of privacy and unintentional torts
such as negligence. Most contemporary tort theory focuses on
the legal consequences of accidents, where the relevant forms
of liability are negligence and strict liability. This entry
likewise focuses on these forms of liability.
Misfortune happens and when it does its victims incur costs.
Those costs can remain the burden of victims or they can be
shifted to others. Sometimes the costs are borne by everyone
(within a particular group or political community). Still other
times those costs are borne by particular individuals, namely,
those who are responsible for having caused them. The
question is: Who is to bear the costs of life's misfortunes:
victims, the community as a whole, those who are responsible
for them, or someone else entirely? How are we to answer this
question? What principles ought to guide the decision, and
what institutions ought we create to realize these principles in
practice?
· 1. Introduction
· 2. The Difference Between Fault and Strict Liability
 · 3. Framework for a Theory of Tort Law
· 4. Theories of Torts: Economic Analysis
· 5. Theories of Torts: Corrective Justice
· Bibliography
· Other Internet Resources
· Related Entries

1. Introduction
Let's set aside for the moment the costs of misfortune that are
borne collectively and distributed throughout the community
through tax systems that support, for example, social welfare
and safety net programs more generally. Of those that remain,
the question is whether the costs are to be borne by victims or
some other particular person or persons. Tort law is one of the
institutions political communities develop in order to allow
victims the opportunity to shift the costs that befall them to
others. Insurance is another such institution. Many individuals
purchase ‘first party’ insurance to protect themselves against
having to shoulder the full costs of some misfortunes that may
befall them and to guard against others. Private health
insurance provides a good example of first party insurance
against risk to oneself. The contrast is with third party
insurance — a contract into which one enters to guard against
shouldering the full costs of misfortune one imposes on others
for which one is held by law to be responsible.
Tort law and insurance are connected in the following way.
Tort law establishes conditions under which victims can shift
at least some of the costs they incur to others. All individuals
realize that they may be subject to a judgment against them in
torts and so many buy third party insurance to protect them
from bearing the full costs of those judgments. In some
jurisdictions purchasing third party insurance is mandatory.
All individuals are likewise aware that they may be victims of
another's actions and may not be able to secure a favorable
judgment against their injurers — or they not deem it worth
the effort to pursue redress through the courts. So many of
them buy first party insurance to guard against some of the
costs they would otherwise have to shoulder completely.
It is important to note that tort law provides an avenue of
redress, not a guarantee of recovery. The victim must
determine whether pursuing a remedy through torts is worth
the effort and cost. Indeed, as an empirical matter most simply
grin and bear the loss then move on. When a victim chooses
the form of redress provided by tort law she is given the
opportunity to shift her losses to another — provided the
conditions the law sets out for doing so have been met. The
conditions for shifting losses from victim-plaintiffs to injurer-
defendants are expressed in ‘liability rules’. The law of torts
distinguishes between two basic kinds of rules: those that
impose ‘fault’ liability and those that impose ‘strict’ liability.
In the next section we will characterize the difference between
these liability rules precisely, but for now it may be helpful to
illustrate the underlying distinction in familiar terms that do
not rely on the technicalities of the law.
Suppose I made a mess of some sort on my property, then I
turned to you and presented you with the bill for cleaning it
up. In the absence of some prior agreement we might have
made this would seem rather odd. After all, it is my mess, not
yours. The burden, accordingly, is mine, not yours, to
discharge. Now suppose that instead of making a mess on my
property and presenting you with the bill, I simply move the
mess I made to your property (or I make the mess on your
property from the get-go), and simply walk away claiming the
cleanup problem is now yours. If it was inappropriate of me to
present you with the bill for the mess I made on my property,
it hardly seems that I have improved matters by placing my
mess on your property instead. It is, after all, my mess, and
the responsibility of cleaning it up is mine. This is the
underlying thought behind strict liability. One has a duty to
clean up one's messes, and that responsibility does not appear
to depend on how hard one has tried not to make a mess in the
first place.
On the other hand, unless each of us stays in his respective
dwelling, we are bound to make the occasional mess in each
other's lives. You would not be justified in demanding of me
that I never bump into you or make something of a mess in
your life, nor would I be justified in making similar demands
of you. What I can demand of you is that you take my
interests into account and moderate your behavior
accordingly. You need to take reasonable precautions not to
harm me; you need to avoid being reckless with respect to my
interests. And I am obligated to treat you similarly. That is,
what we have a right to demand of one another is that we
behave responsibly with respect to the other's interests. This is
the underlying thought behind fault liability.
The question is which is the appropriate standard of liability
in torts? Most tort theorists believe that we cannot answer that
question without first answering another — namely, what are
the goals or aims of tort law? The conditions of liability in
torts justify imposing a duty of repair on those who satisfy
them only if (a) the duties so imposed are the ones best suited
to help tort law meet its goals, and (b) the goals are
themselves justified. The primary focus of tort theory has
been to identify the goals of tort law and to justify them as
legitimate aims for the law to pursue. Once the goals are
identified and justified, tort theory is then a matter of
exploring the extent to which the conditions of liability in
torts are appropriate instruments for pursuing them.
Put this way, tort theory is largely a normative activity that
appears to eschew explanatory projects. Whereas explanatory
projects in law can be pursued without raising justificatory
questions, it is less clear that justificatory projects of this sort
can be pursued completely independently of basic explanatory
ones. Consider the claim that the goal of tort law is
deterrence. The claim is not that deterrence is a legitimate
goal for some logically possible tort law. The claim is that
deterrence, for example, is the goal of this or that system of
tort law; and making out such a claim requires showing that
the law makes sense as the sort of thing that could pursue that
goal or aim. That requires in turn establishing that various
features of existing or idealized practice makes sense in the
light of the goal one attributes to it. In that sense, the
normative project requires that we address certain explanatory
or conceptual questions. And so part of making the case that
say, the efficient reduction of accident costs is the goal of tort
law rests on showing that fundamental features of actual tort
practice are best explained by seeing them in the light of
efficiency.
As noted above tort law has both strict and fault liability rules.
Thus, we have at least two projects. The first project is to
distinguish between fault and strict liability as conditions of
liability in torts. The second is to explore the extent to which
the central features of tort law — including the rules of fault
and strict liability — can be explained by the putative goals of
tort law.
2. The Difference between Fault and Strict Liability
There are three basic elements in a tort: wrong, harm and an
appropriate relationship between the injurer's wrong and the
harm to the victim. To harm someone is to set back a
legitimate interest of hers. The law does not recognize all
harms as grounds for a claim in torts. If you beat me in tennis
or in competition for the affections of another, I may be
harmed, and you may be the cause of it, but I have no claim in
torts to repair for my broken heart or my bruised ego. Even if
the interests harmed are protected by the law, claims to repair
for the losses one imposes on others require more than risk
and harm; they require a wrong — the violation of a duty not
to harm or not to impose risks of a certain kind on others. You
have no duty not to harm me through competition in business
or the affections of another, and so in harming me you do not
thereby wrong me. There is no overstating the importance of
the idea of a wrong — or of a breach of duty — to tort law.
The central idea in tort law is that liability is based not so
much on acting badly or wrongfully, but on committing a
wrong. At the same time, a victim's claim to recover for harm
to her depends on the wrong the injurer has committed being a
wrong to her. It is not enough that the injurer has committed a
wrong and that she (the victim) has suffered as a consequence.
The defendant's liability to the victim and the victim's claim
against the defendant depend on the defendant's having
breached a duty of care to the victim.
Just as harm without wrong is no tort, wrongs without harms
are typically not torts either. Suppose for a moment that every
motorist has a duty to exercise reasonable care in driving his
or her car, and that the intended beneficiaries of the duty
include all the pedestrians and other drivers who might be put
at risk by one's failure to drive with adequate care. Now
imagine two people who drive recklessly and in so doing
breach the duty we suppose they have, but that one motorist
causes damage whereas the other escapes injuring anyone. By
hypothesis, both have breached a duty to those whose security
is put at risk, and in doing so both have committed wrongs.
Only one driver harms someone as a result of the wrongs he
commits and thus only he subjects himself to tort liability.
So torts require both wrong and, in most cases, harm. A
notable exception to the harm requirement is the case in which
injunctive relief is awarded in order to prevent harm that is
virtually certain but yet to occur. As a general rule though
torts require both wrongs and harms. They require more as
well: for liability in torts can be imposed only if the harm has
been caused in the appropriate way by the wrong. A's wrong
must be what the law calls the ‘proximate’ cause of B's harm.
These are the elements of a tort, but the question is how are
they represented in the context of the rules of strict and fault
liability. On the conventional view, the difference between
fault and strict liability is that in strict liability, but not in fault
liability, a defendant can be liable even if he has done nothing
wrong. The common understanding, then, is that strict liability
is liability without wrong, and fault liability alone is liability
based on the injurer's wrong. But then the conventional view
seems incompatible with the claim that all torts involve
wrongs.
There is a distinction between wrongs and wrongdoings — a
difference between committing a wrong and acting
wrongfully. To act wrongfully is to act without justification or
excuse. Wrongdoing reflects badly on an agent for his actions.
On the other hand, to commit a wrong is to breach a duty, to
invade another's right. One can breach a duty for good reason,
with adequate justification, or under excusing conditions.
Rights in other words can be invaded innocently (or
justifiably) on the one hand, or wrongfully (or unjustifiably)
on the other. This distinction is sometimes expressed in terms
of the difference between rights-infringements and rights-
violations. Whether my action invades your right is one thing;
whether, if it does, the action reflects poorly or favorably on
me is another.
Let's apply this distinction to the conventional understanding
of the difference between strict and fault liability. When
liability is imposed strictly, the question is whether the
defendant has invaded the plaintiff's right. A plaintiff under
strict liability does not have to establish the fault of the
defendant, though a judgment of strict liability does not
necessarily mean that the defendant has acted innocently or
justifiably. According to the conventional view, under fault
liability, the plaintiff has to establish not only that he was
wronged by the defendant but that in doing so the defendant
acted wrongfully, that is, without justification or excuse.
But this way of explaining the distinction between fault and
strict liability leads us even further astray. For if the victim's
being wronged by the defendant is adequate to ground his
claim to repair (other things being equal) in some cases, why
is it not enough in all cases? Concern for the character of the
defendant's action may be appropriate to the question whether,
in addition to incurring a duty to make his victims whole, he
should be punished, held up to ridicule or banished from the
community. Under strict liability, the breach of the duty is
what is relevant to the duty to repair. In other words, if a
practice of strict liability is justified at all, then the duty to
make repair cannot depend on whether the injurer has acted
justifiably or not. If that is so, why should the duty of repair in
fault liability require more than it does in strict liability?
When fault is treated as an element of a tort distinct from the
breach of duty, either fault liability requires too much or strict
liability too little.
The conventional understanding of the difference between
fault and strict liability goes astray precisely because it
distinguishes the breach of the duty from the fault
requirement. The better view is that the difference between
fault and strict liability is a difference in the content of the
underlying duty of care. To see this, consider the cases of
blasting, on the one hand, and motoring on the other. In a case
like blasting — an activity traditionally falling under strict
liability — the blaster has a duty-not-to-harm-by-blasting.
This is the content of the duty of care blasters owe those
whom their blasting puts in danger. On the other hand, in the
case of motoring — a familiar example of an activity covered
fault liability — the motorist is thought to have a duty-not-to-
harm-by-faultily-motoring. That these duties have different
content is illustrated by their respective success and failure
conditions. A blaster fails to discharge his duty when his
blasting, regardless of the care he takes, injures someone to
whom he owes the duty. A motorist fails to discharge his duty
when he harms another negligently, recklessly or intentionally
through his driving. The blaster can satisfy his obligations
only by not harming another. The motorist can meet hers
either by not harming anyone or, in the event she harms
someone, by not having done so negligently, recklessly or
intentionally. And this is just another way of saying that the
contents of the respective duties differ. The fault requirement
is thus an aspect of the underlying duty, not a reflection on the
character of the defendant's action.
The force the interests of others imposes on our duty to
moderate our behavior varies with the circumstances.
Sometimes, the likelihood or magnitude of harm to others is
so great that the duty we have to others is not to harm them as
a result of the actions we choose to undertake. At other times,
the balance of interests indicates that we need to take
reasonable precautions to guard against harm to others, and no
more. Understood in this way, the problem is familiar and not
in the least unique to tort law. It is a matter of ordinary
morality that the content of our duties to others varies as a
consequence of a range of familiar factors. Noting this does
not solve the problem of telling us why sometimes the duty is
strict and other times it demands only reasonable care. But the
difference is that between points on a continuum, and so the
stark contrasts that are implied in the conventional view are
inapt.
3. Framework for a Theory of Tort Law
It is customary in tort theory to distinguish substantive from
structural and procedural aspects of tort law. The rules of
strict and fault liability are substantive features of tort law.
The bilateral structure of a tort suit — the fact that victims sue
those they identify as their injurers and do not instead seek
repair from a common pool of resources (as is the case in New
Zealand) is a structural feature of our tort law. The fact that
the burden of bringing forward a claim and of making the
prima facie case falls to the plaintiff is a procedural feature of
tort law, and so on. We have already identified the most basic
substantive concern of a tort theory, and that is to justify,
insofar as possible, the rules of fault and strict liability. It is
not the only substantive feature of the practice that has drawn
the attention of theorists, as the following summary of
substantive concerns helps to make clear.
Mischief, even great mischief, that does not materialize into
harm, may be wrongful, but it is not tortuous. Similarly, a
reckless and irresponsible defendant who is fortunate to
escape causing major damage to others, is only liable for the
minor damages he causes. This in stark contrast to the
generally focused and attentive actor whose minor mischief
occasions a great deal of misfortune. The general principle of
tort is that both are liable for the full costs of the harms their
conduct has occasioned. Yet, the burdens they face bear no
relationship to the degree of their relative wrongdoing. Why
should fortuity play so pervasive and powerful a role in tort
law?
A defendant judged liable in torts incurs a duty to make good
the full costs of the harms that result from his wrong. The
liability takes the form of the imposition of a duty of repair.
The defendant, however, is often able to discharge his duty
through an insurance mechanism. The contrast with the
criminal law can be illuminating. It is unimaginable that we
would permit individuals to purchase insurance against the
likelihood of criminal liability. What explains the difference?
4. Theories of Torts: Economic Analysis
Competing theories of tort law offer accounts of these various
features of tort law. The degree to which they illuminate our
practice is relative to their perspective on legal practice It is
helpful to understand tort law through the lens of a judge
deciding cases based on prior rulings and doctrine, from the
perspective of potential litigants seeking the vindication of
claims, and from the perspective of the legal reformer trying
to formulate the best rules for imposing liability. Economic
analysis of law is unconvincing if its aim is to illuminate the
law from the perspective of either judge or litigant. It is much
more plausible when viewed through the lens of a particular
kind of legal reformer. We will get the most from economic
analysis if we remind ourselves that the economic analyst is
asking questions of the following sort: what substantive
liability rules are most likely to have the greatest impact on
reducing the incidence of accidents at the lowest cost? What
procedural rules at a trial are most likely to induce those with
the most relevant information to reveal it, or most likely to
lead to optimal investments in information or safety; and so
on. These are the questions of a reformer less interested in the
actual state of tort law than in how the law can be improved.
The economic approach to tort law, like the economic
approach to law more generally, attributes a particular goal to
the law: namely, efficiency. In the case of tort law, efficiency
is understood as optimal cost reduction. The aim of tort law is
to minimize the sum of the costs of accidents and the costs of
avoiding them. This is to be accomplished in part by creating
a system of incentives adequate to induce individuals to invest
appropriately in determining what the optimal precautions are
and to take them.
The distinguishing feature of economic analysis is the account
it provides of fault: the formula it offers for determining
whether an actor has adequately taken into account the
interests of others. In general, to be at fault in torts is to fail to
take others interests appropriately into account and to adjust
one's conduct accordingly. Reasonable persons take the
interests of others appropriately into account and adjust their
behavior accordingly. To be at fault is to fail to behave as
would a reasonable person of ordinary prudence. It is a failure
to accord others the appropriate level of care to guard against
harming their interests.
Economic analysts focus primarily on the concept of
negligence. Negligence is the failure to take adequate care and
adequate care consists in taking cost-justified precautions.
Precautions are cost-justified whenever their cost is less than
the costs of the harm risked (by not taking precautions)
discounted by the probability of the harm's occurrence. Once
we understand negligence as the failure to take cost-justified
precautions we need to ask what justifies imposing liability on
those who have failed to take appropriate precautions.
From an economic point of view, the costs of the accident for
which one is responsible are sunk. There is nothing to be done
about them. All that we can do is shift the costs from the
victim upon whom they have fallen to someone else. From the
economic point of view, such a decision must be based on the
impact of cost imposition on the incentives of individuals to
invest appropriately in safety. Individuals ought to bear sunk
costs only if imposing those costs on them will have the
desired impact on the reduction of costs in the future. The
responsibility relationship is backward looking; the cost
reduction aim is forward looking. It may turn out that having
the property of being responsible for a harm may be reliably
connected to the property of being an effective cost-avoider.
Even in that case, being responsible for a loss is not the
ground of liability, but is instead a reliable indicator that the
injurer possesses the property that is the ground of liability.
Beyond that, if having the property of being responsible for a
harm is a reliable indicator that one has the property of being
a good cost-avoider (even of harms of the particular sort for
which one is responsible), it does not follow, without more,
that one should be held liable for the particular harm for
which one is responsible. One could just as well be held to
bear the costs of a similar injury, or one could be held to bear
the costs adequate to induce investments in cost reduction —
and those costs may or may not coincide with the costs
associated with the harm for which one is responsible. So it
cannot be part of an economic argument that the party who is
at fault must pay for the costs of harms that are his fault
because he is responsible for them. Rather, liability is
imposed on those at fault in order to put in place the right
incentives on the defendant and those similarly situated.
If we assume that actors are fully rational and informed,
imposing liability on those at fault will have the desired effect
on others. Here's the argument. If we assume that agents are
fully rational, then under the economic conception of
rationality it follows that they will maximize benefits or
minimize costs. If agents are fully informed, they know the
costs of liability and the costs of precautions. Ex ante, all
agents will choose the lesser of these costs. The relationship
between precaution costs and potential liability based on fault
is as follows. An agent will be at fault only if the costs of
precautions are less than the costs of the harm discounted by
the probability of occurrence. To avoid being at fault the
rational agent takes the precautions, which, in addition, are the
lesser costs he faces. If the costs of precautions exceed the
cost of the harm discounted by the probability of its
occurrence, then he will not take precautions, but then he will
not be negligent either. Should harm to another result, he will
not be required to shoulder the victim's costs. That will be for
the victim to do (an important consequence of fault liability to
which we shall return below.) So the rational and informed
agent will take precautions whenever it would be efficient for
him to do so, not otherwise.
In contrast to fault, strict liability is imposed whether or not an
agent ought to have taken precautions. Why might we want to
hold someone liable who has in fact invested in cost-justified
precautions? The economic answer to this puzzle in effect is
that there is more than one way to skin a cat. Skinning a cat,
in this context, amounts to inducing individuals to take cost-
justified precautions.
An agent subject to strict liability has to bear the full costs of
his activities — the costs to him of engaging in it and the
costs his engaging in it imposes on others. All the costs are
his. The question he faces, then, is whether there is anything
he might do to reduce the costs he faces. That depends on
whether there are precautions he can take, their costs and their
expected effectiveness. In other words, if the costs of
precautions are less than the harms likely to occur discounted
by the probability of their occurrence, then he will take the
precautions. He does so because these costs are lower than
those he would otherwise expect. Notice that those
precautions are in fact the cost justified ones. And so under
strict liability the rational and informed agent will also be
induced to take all and only cost justified precautions. In this
respect fault and strict liability give the same results. The only
difference between the two is that under fault liability the
costs of accidents not worth preventing are borne by victims,
whereas under strict liability, those same costs are borne by
injurers. In fault liability, the costs of accidents that are no
one's fault are the burden of victims; in strict liability, they are
the burden of injurers.
If strict liability can induce efficient investments in safety,
why would we have a rule of fault liability? If fault liability is
capable of inducing individuals to take optimal precautions,
why impose strict liability? The two rules have different
distributional consequences. From the economic point of
view, the distributional consequences are not important in
their own right, but they can be important because of their
impact on activity levels. The choice of strict or fault liability
is in one sense a choice between making activities more or
less expensive relative to each other. Take ranching and
farming for example. A rule of strict liability imposed on
ranchers for the damage their straying cows impose on corn
crops makes ranching more expensive relative to farming.
This means that even if, at any level of ranching and farming,
both strict and fault liability could be efficient in reducing
accidents at that level, a rule of strict liability will make
ranching relatively more expensive and reduce the overall
level of it (in relation to farming). This means more farming
and more farming accidents and fewer ranching related
accidents. And so on. If efficiency depends on activity levels,
then fault and strict liability need not be equally efficient. Or
put another way, because fault and strict liability have
differential impacts on activity levels, they can be used
differentially whenever appropriate to secure an efficient
overall allocation of risks.
The implications of fault and strict liability are more
complicated once we distinguish between one and two party
accidents. A one party accident is one in which in order
optimally to reduce the probability of its occurrence only one
of the parties to the accident need take appropriate
precautions. In contrast, in a two party accident, securing the
optimal reduction in the probability of the accident's
occurrence requires that both parties take appropriate
precautions. Setting aside the problem of activity levels, we
can be taken to have shown that in the case of one party
accidents both strict and fault liability can be efficient. The
same is not true in the case of two party accidents, where
strict liability is not efficient. In strict liability, the victim is
always compensated his full damages and therefore has no
incentive to invest in precautions, yet the situation requires
him to do so.
In contrast, the rule of fault liability is efficient in the two
party case in that it induces both injurers and victims to make
optimal investments in safety. The rule of fault liability
imposes liability on the injurer only if he is at fault. If the
injurer is rational, he will always take the cost justified
precautions. We established this result above in the discussion
of the one party accident case. Thus, the rational injurer will
never be at fault. If people are always rational, then the costs
of whatever accidents occur will fall to their victims.
Victims must assume, then, that the costs of all accidents will
be theirs to bear. Notice that this puts the victim in the exact
position the injurer is in under strict liability. On the
assumption that the injurer will never be at fault, the victim
will always be responsible for all of his costs. And just like
the injurer in strict liability, the victim must decide which, if
any, precautions to take. Whenever precaution costs are lower
than the expected costs of the harm victims will opt for them,
otherwise not. In precisely the same way that strict liability
encourages injurers to take optimal precautions, fault liability
encourages the victim to do the same.
If fault liability is efficient, so too is strict liability with the
defense of plaintiff or contributory negligence. Here is another
simple proof. This proof relies on the fact that the rule of fault
liability imposed on defendants can be redescribed as the rule
that victims are strictly liable for the costs of harms that befall
them unless they can establish the fault of their injurer. What
we call fault liability can just as easily be characterized as
strict liability for victims with the defense of injurer fault. But
if this rule is efficient, then so too is the rule of strict (injurer)
liability with the defense of victim fault. They are the same
rule. All that changes is that every occurrence of ‘victim’ is
replaced with ‘injurer’ and vice versa. One rule is efficient if
and only if the other is. The rule of fault liability is efficient,
and therefore the rule of strict liability with plaintiff fault must
be as well. In those cases in which both rules are efficient, the
choice between the two depends on other features of the rules:
in particular, costs associated with their administration.[1]
Notwithstanding the fact that it illuminates important features
of legal practice and remains an invaluable tool in the
assessment and reform of the law, economic analysis has
spawned considerable criticism. Let's begin with two
straightforward objections. Economic analysis reduces
reasonable risk taking to rational risk taking. In doing so, it
treats the care I owe you as identical to the care I would ‘owe’
myself. Suppose I engage in an activity whose benefit to me is
100 and whose costs to me varies. Whenever the costs to me
are under 100 it will be rational for me to absorb the costs and
continue on. As soon as the costs to me exceed the benefits, it
will no longer be rational for me to engage in the activity.
Economic analysis draws no distinction between the case in
which the costs and benefits are mine alone and the case in
which the benefits are mine to enjoy and the costs yours to
endure. But what is reasonable to expect of me when all the
costs are mine to bear may not be what is reasonable to
demand of me when the benefits are mine to enjoy and the
costs yours to bear. To be sure, there is no difference between
these cases from the point of view of collective rationality, but
that is just the point. There is no reason to identify the
reasonable with the rational in the torts context, where one
party (the injurer) secures the benefits (in the form of freedom
from the costs of precautions) and the other party (the victim)
bears the costs (in the form of the costs of injuries more likely
to occur). Economic analysis in effect imposes the fungability
of costs on the practice of torts without showing that in fact
the practice treats costs in this way. That is one reason for
thinking that economic analysts are reformers, not analysts of
tort law.
Now the economic arguments we have considered talk loosely
of fault and strict liability, but nowhere invoke the notion of a
duty. As we have already seen, the duty element of a tort has
two dimensions. The first concerns those to whom I owe a
duty of care; the second concerns the content of that duty. As
we noted above, the fault standard is part of the content of
some of our duties to others; it does not mark out the class of
individuals to whom I have a duty. The distinction between
the scope and content of the duty of care is central to the
American tort case, Palsgraf v. Long Island R.R.. Famously,
Judge Cardozo argued that each of us has a duty to moderate
our actions by taking into account only the interests of those
who fall within the ambit of foreseeable risk. I have to guard
against injuring those who fall within the zone of danger
associated with my conduct. Others may be injured by what I
do, and what I do may have been lamentable or mischievous,
but those who fall outside the ambit of foreseeable risk have
no claim in torts against me. They have no claim, not because
I did not act badly or carelessly. Ex hypothesi, I have. They
have no claim against me because I did not wrong them. I did
not wrong them because I had no duty to take their interests
into account in regulating my conduct. This point cannot be
emphasized enough. The only individuals who can in torts
have a claim against me are those to whom I have a duty of
care. It is only with respect to those individuals that I must
exercise reasonable care.
The problem for economic analysis is that the duty restriction
on liability is incompatible with the goal of inducing
individuals to take appropriate precautions. In order to
encourage injurers to take appropriate precautions, each must
face the full costs of his activity. But the duty requirement
allows injurers to displace at least some of the costs of their
conduct, costs that efficiency requires them to internalize.
This is one reason that economic analysis has no place for the
duty requirement.
Relatedly, tort law imposes the costs associated with the
actual causal upshots of an individual's action. From an
economic point of view, it is the risk of harm and not actual
harm that should matter. One has to be careful not to
misunderstand this point. Harms are of interest to the
economic analyst. But the harms that matter from an
economic point of view are the ones that have not yet
occurred — the ones that can be optimally avoided by
inducing individuals to take proper precautions — and not the
harm that occasioned the case at hand. If what matters is
reducing the incidence of future harms, then the main concern
of economic analysis should be conduct that risks harm. Some
conduct that risks harm actually causes harm as well, but not
all conduct that risks harm does. Harm that has occurred is of
interest only insofar as it provides reliable evidence of
riskiness of the underlying conduct. In our tort practice,
however, harm, not the risk of it, is a ground of liability and
not merely an epistemic convenience. To the extent that the
fact of harm is central to the practice of tort law and not an
artifact of our limited epistemic capacities, the economic
analysis falls short.
Finally, let us turn to the structure of tort law. Tort law has a
bilateral structure. If the victim of another's mischief brings an
action in torts, he brings it against the person he alleges has
harmed him. In making out his case, the plaintiff argues that
the defendant breached a duty of care owed to him, and that
the breach has resulted in the harm of which he complains.
From the normative point of view, the most basic relationship
in torts is that between the injurer and the victim whom he has
wronged. From the economic point of view, the most basic
relationship is that between each litigant, taken separately, and
the goal of minimizing the sum of accident and accident
avoidance costs. That is, economic analysis separates the
injurer from the victim. The relevant normative questions are:
(1) what is the relationship between the injurer's conduct and
the goals of tort law (cost reduction), and (2) what is the
relationship between the victim's conduct and the goals of tort
law?
The relationship between particular victims and injurers
matters to economic analysis only insofar as features of it
might provide evidence of the ability of either to reduce
accident costs. Since the aim of accident law is optimally to
reduce accident costs, the loss should be imposed on that
individual who is in the best position to reduce costs at the
lowest cost. This means that from an economic point of view,
there is no reason why the victim should be suing the person
he alleges injured him.
5. Theories of Torts: Corrective Justice
According to the principle of corrective justice, an individual
who has wronged another has a duty to repair the wrongful
losses occasioned thereby. The corrective justice account thus
illuminates not just the bilateral structure of tort litigation, but
tort law's emphasis on harm caused rather than harm risked.
Arguably, central to tort law is the moral notion of
‘ownership’, not the moral notion of ‘blame’. Tort law picks
out a particular way of recognizing one's ‘ownership’ of some
of the untoward outcomes for which one is responsible. It
does this by imposing a duty to make good the costs one's
wrongs have imposed on those one has wronged. And so,
rather than trying to determine whether the injurer has
satisfied the conditions that would warrant blaming him for
what he has done, tort law inquires into whether the injurer
has satisfied conditions necessary to impose on him a duty to
repair the plaintiff's loss. In short, the law asks whether the
loss is attributable to him as his doing: whether, to use the
currently fashionable phrase, he is ‘outcome responsible’ for
it. In the prevailing view, to be outcome responsible, the
outcome must be foreseeable and avoidable.[2] This emphasis
on the ascription of responsibility for outcomes rather than on
ascriptions of blame or culpability makes sense within the
corrective justice account of tort law in ways in which it
would not within a traditional retributive view.
According to economic analysis, all liabilities are simply one
or another cost. There is no significant normative difference
among punishments, sanctions, duties of repair and taxes. All
that matters is the way in which each impacts rational
decision-making. But there are important normative
differences among these kinds of costs that this crude picture
misses. Tort law imposes a duty of repair, and while it is true
that a person who is under a duty to act is constrained in the
set of actions open to him, duties are neither punishments nor
sanctions. In contrast with tort law, criminal wrongdoers are
subject to punishment for their crimes, and while this means
that they are not at liberty to prevent others from punishing
them, they have no duty to be punished or to permit others to
punish them.
There are other significant differences between the duty of
repair in torts and punishment as a criminal sanction. The duty
of repair in torts is a debt of repayment one owes those one
has wronged and has injured as a result. Like other debts of
repayment, it can be discharged by third parties — and not
only if the debt holder has authorized repayment. By contrast
‘debts’ incurred as a result of criminal mischief cannot be
discharged by third parties. I cannot serve your prison
sentence justly. To be sure, I might be imprisoned for a crime
you have committed, and my love for you may lead me to
substitute myself for you when the time comes for you to
begin your prison term. But both cases involve injustice: the
first to me, the second to the world as a whole.
Nor can one guard against liability to criminal sanction by
purchasing insurance. In contrast, it is common to purchase
insurance to guard against the burdens of tort liability. Indeed,
in some cases purchasing third party insurance is mandatory.
Not only is it a mistake to lump together sanctions, taxes and
liability judgments as interchangeable implements in the legal
reformer's tool box, the practices for which each is appropriate
are governed by different norms. Failure to notice the
differences in character of these ‘costs’ disables one from
understanding the underlying norms governing our differing
legal and social institutions.
The emphasis on duties of repair as well as on the range of
ways in which those duties can be discharged consonant with
justice is illuminated by the principle of corrective justice in
ways in which these features of tort law are not illuminated by
either retributive or economic theory. The claim is that
corrective justice explains the relationship between the duty to
prevent or avoid harm on the one hand, and the duty to repair
its costs on the other. It is a principle that grounds duties of
repair, not the duties of care that are the bases of those duties
of repair. Though it grounds duties of repair, it does not
mandate a mechanism by which those duties are to be
discharged.
It is tempting to think of corrective justice as a goal of tort law
in the same way that economists think of efficiency or optimal
deterrence as a goal of tort law. The better view is that
corrective justice is not a goal of the law in the way in which
efficiency might be. Rather, corrective justice itself is a
principle of justification; it seeks to articulate grounds upon
which a certain category of duties rest. It claims that certain
duties of repair or repayment are grounded on one's
responsibility for them. The grounds of the duty to repair are:
(1) the fact that one has a prior duty to take into account the
interests of another and to mitigate one's own conduct
accordingly; (2) the fact that one has failed to do so; (3) the
fact that one's failure to do so results (in an appropriate way)
in harm to another; and (4) the harm that results is one for
which can be charged to an agent as his doing, or, in the
contemporary jargon, for which he is outcome responsible. No
one claims that these grounds must be satisfied if ever an
agent is to have a duty of repair or repayment. Corrective
justice grounds some, but, very likely, not all of our duties of
repair.
If this is the way to think about corrective justice, how ought
we think about its relationship to fault and strict liability? The
question is whether the duties of repair and the conditions
under which they arise in tort law are ones which are by and
large grounded in the principle of corrective justice so
conceived. As I argued above, both strict and fault liability in
torts involve wrongs, that is, the breach of an underlying duty
of care. The fault in fault liability is not a modifier of the
character of the injurer but a constraint on the content of the
underlying duty of care he owes the plaintiff. The difference
between fault and strict liability standards is a difference in
the nature of the content of the underlying duties we owe one
another.
In strict liability, the defendant is thought to owe the plaintiff
a duty of the form A not to harm by X-ing. It is natural to
think that the duty is absolute or unconstrained. But it is in
fact constrained in several ways, and in each of the ways it is
constrained, the duty in strict liability resonates with the
conditions of a duty of repair in corrective justice. The blaster
is liable strictly, not to everyone who is injured by his
conduct, but only to those to whom he owed a duty not to
harm by blasting: those who fall within the ambit of
foreseeable risk. Second, he is not liable to all those that he
injures because he blasts, but only to those that are injured in
the appropriate way by his blasting. In strict liability, there are
the requirements of a wrong to a plaintiff (class), a harm, the
appropriate causal connection between the two, and other
elements of responsibility for the outcome, including
forseeability and avoidability.
These same elements are present in all the classic cases of
fault liability. The only difference, as we have noted, above is
that in fault liability the content of the underlying duty not to
harm differs from the duty in cases of strict liability. In fault,
the duty is not to harm faultily, that is, negligently, recklessly
or intentionally. In both the duty of repair requires the breach
of a duty (a wrong), and responsibility for the outcome (the
injury or harm being caused in the appropriate way by that
aspect of the conduct that made it a wrong). Arguably, the
duties imposed in tort law are paradigmatically duties of
corrective justice. The bilateral structure of tort law and the
pattern of practical reasoning embodied within it is
transparent under the light of corrective justice, while cloudy
at best, and mysterious at worst when viewed in the dim light
of economic analysis. Moreover, the same principle explains
both the structure and substance of tort law, and thus provides
explanatory economy as well as consistency.
The corrective justice approach to tort law has been the object
of serious criticism. I want to focus on three of the most
important kinds of these. The first set of objections focuses on
the concept of wrong at work in the principle of corrective
justice. The second raises questions about the claim that
corrective justice is a matter of justice. The third raises
broader doubts about the claim that the goal or purpose of tort
law is to achieve corrective justice. Let's consider these in
turn.
As I have characterized it, corrective justice sets out grounds
upon which a certain category of duties of repair or repayment
are justified. One of the grounds of a duty to repair is the
existence of a wrong, that is, the breach of a duty of care to
another. One might say that whereas corrective justice
theorists have been extremely concerned to specify
appropriately the conditions under which it is fair to impose
duties to avoid or prevent untoward consequences, they have
offered precious little guidance regarding the actual duties to
avoid or prevent harm that we owe to one another. This
complaint has been expressed in two slightly different forms
of criticism. The first is that to the extent that corrective
justice offers only an account of what ought to be done when
some individuals wrong others and not an account of what
constitutes a wrong in the relevant sense, the principle of
corrective justice is empty or merely formal. The second is
that since the principle of corrective justice appears to leave
open what counts as a wrong, it may be that the wrongs that
give rise to a duty of repair are merely the failures to take cost
justified precautions, in which case the principle of corrective
justice collapses into the principle of efficiency.[3] A related
objection is that corrective justice offers us no way of
determining when a rule of strict liability is appropriately
imposed and when a rule of fault liability is. In other words,
corrective justice may tell us that strict and fault liability both
involve the breach of a duty of care and that the difference
between them concerns the content of the relevant duty, but it
offers us no guidance as to why some activities call for the
duty of care typified by strict liability whereas others call for a
duty of care of the sort associated with fault liability. If
nothing else, the economic analysis, as we have seen above,
gives very clear guidance on this question.
In one form or another, the first objection is by far the most
pervasive objection to corrective justice accounts of tort law.
Were it a sound objection, it would be devastating. In fact, it
is not a serious objection, and rests on an important
misunderstanding. There is in morality, as elsewhere, a
significant, if limited, division of labor. It is not the burden of
corrective justice to explain the content of our duties not to
harm others or to determine their scope. It is instead a
principle that grounds some of the duties we incur in the event
that we fail to comply with our duties not to harm others. We
have a responsibility in general to mitigate our conduct by the
impact it is likely to have on the interests of others. This is a
matter of common sense morality and simple fairness. This
general duty we have to others is not itself a matter of
corrective justice. Nor are the specific duties we have to
particular persons to take into account the impact of our
conduct on their interests in concrete ways matters of
corrective justice. It is a good question of morality, just what
it is we owe one another concretely in order to discharge our
general obligations of fairness to one another. How must I
mitigate my conduct in the light of your (presumably,
legitimate) interests? And which of those interests must I take
into account?
One can hold the view that drawing up a list of such concrete
duties is the task of moral philosophy. Others may hold that
moral philosophy is unlikely to be able to provide us with a
definitive list, that at least part of duties we have to others will
depend on the practices we happen to have. In any case, these
underlying duties are not themselves duties of repair; they are
duties of care. It is not a burden of corrective justice to
identify or ground them.
Quite the contrary, in fact. Once we have concrete
requirements to take the interests of others into account in this
or that way in regulating our own affairs, we face the
altogether different question of whether, and in what ways,
the breach of these duties impacts the normative relationships
between the parties . What, in other words, are the normative
consequences of a breach? Here is where the principle of
corrective justice makes its claim. It holds that in the event
certain conditions attend the breach, a second order duty of
repair exists. Whereas the underlying duties of care establish
in part normative relations between the parties, the breach of
such a duty creates a different but related normative
relationship. Or so the principle of corrective justice claims
We could adopt practices in which the losses suffered by
victims as the result of the breach of some are to borne
collectively by us all; or we could adopt practices in which the
victims are left to bear their own costs. Or we could adopt a
practice in which particular wrongdoers have the duty to make
good the costs they have imposed. Or we could adopt some
mixture of these responses, and others as well. In fact that is
precisely what we do. If we adopt a practice of imposing a
duty of repair on wrongdoers, such a practice is (were other
conditions satisfied) defensible as a matter of corrective
justice.
It is a further question whether commitment to the principle of
corrective justice demands that we have such practices. It is
one thing to claim that our practices of tort law — the ones we
actually have and not all logically possible ones — are
usefully or even best illuminated by a principle of corrective
justice; quite another to claim that corrective justice requires
that we have an institution of tort law — that is, an institution
that imposes legally enforceable duties of repair that could be
defended on the grounds of corrective justice. The principle of
corrective justice justifies some of the legally enforceable
duties to repair we might incur. It does not claim that we
suffer an injustice in the event we do not recognize such
duties in our legal practices. So, for example, there is no
reason to suppose that a no-fault scheme of liability for
accidentally imposed losses that distributes the costs of
accidents through general tax coffers would be incompatible
with corrective justice. Such an institutional arrangement is
best seen as reflecting the idea that we are less concerned with
the source of misfortune than with the urgency such
misfortunes create for those who bear them.
To be sure, there are differences between these cases. In the
former, no one may be responsible for the misfortune one
suffers; in the latter case, someone is. Corrective justice
embodies important moral values for it emphasizes not only
the notion of misfortune and loss, but the idea that we owe
duties of care to one another and the fact that some of the
misfortunes that others suffer are our doing. Corrective justice
connects us to our actions and the impact our actions have on
others in ways in which other principles of justice, for
example, distributive justice, do not. In arguing that corrective
justice does not mandate a system of tort law I am not saying
that nothing would be lost from the moral point of view.
Whether something is lost depends on whether we elsewhere
express in our institutional life and practices the moral values
that are embodied in the principle of corrective justice. Those
values can be expressed adequately in a range of formal and
informal practices. They need not be expressed through a tort
law. For what a tort law does is express those values in a
particular way. It ties together one's duties to take into account
the impact of one's conduct on others and one's responsibility
for what happens to others in the event one fails to do so in a
particular way, namely, by imposing a duty to make good the
loss. We could separate the former from the latter, however.
We could have practices of making formal apologies, of
offering services or other forms of aid or restitution, while at
the same time allocating the costs of misfortune more
efficiently through a general tax coffer. If we have a tort
system, it is not because such a system is mandated by
corrective justice. If such a system it is defensible it is
because, on balance, such a practice is a defensible way of
expressing the values embodied in corrective justice and of
doing so in ways that are cost effective and accident cost
avoiding, and so on.
The second objection was that if the principle of corrective
justice is compatible with an economic theory of the
underlying wrongs or duties of care we owe one another, then
corrective justice is reduced to economic analysis. Whereas
no set of underlying duties falls out of the principle of
corrective justice, the principle constrains the set of duties that
can be protected or secured by it. The general form of the
constraint can be put abstractly. The underlying claims of
right and duty sustained by the principle of corrective justice
must be such that the imposition of a duty of repair
occasioned by their breach are requirements of justice and not
merely something that we can provide good instrumental
reasons for.
It may be helpful to illustrate the general point by considering
a different, and less controversial example (at least in this
regard): that is, the relationship between criminal punishment
and retributivism. Retributivism can only be plausible as an
account of criminal punishment if the crimes identified by the
law are the sort that makes it in general clear why punishing
someone for them would be deserved. If, for example, there
were no excuses in the criminal law — if all liability to
criminal sanction were strict in that sense — and if only the
most trivial offences were crimes, retributivism would be an
implausible account of our criminal practices. The plausibility
of retributivism as an account of criminal punishment depends
on the conduct deemed criminal by the law and the conditions
of responsibility for those crimes being appropriate to an
attribution of culpability or blame. This example illustrates
two important points. First, no one criticizes retributivism as
empty because it does not provide a full accounting of the
wrongs for which punishment would be deserved. Second,
even though it does not provide an accounting of the
underlying wrongs for which punishment would be
appropriate, it does constrain membership in that set.
The same is true of corrective justice. While corrective justice
is not a theory of the wrongs it rectifies, it can only make
sense of tort law if in general the kinds of wrongs identified in
torts are ones that must as a matter of justice be repaired.
Another way to put this point is to say that even though
corrective justice does not have nor must it provide a theory
of the wrongs that are identified in torts, it in fact sets out
what are the clear or paradigmatic cases of such wrongs. It
clearly meets that requirement, for the wrongs it picks out as
paradigmatic — trespass against property, the intentional torts
of battery and assault, negligent regard for the interests of
others, and so on — are the bread and butter of tort law.
We can draw three conclusions from this discussion. First,
corrective justice is not empty. It relies on the basic notion of
a division of labor in moral theory. Within its domain, it is as
substantive a principle as one can find. Second, it is not
compatible with all underlying theories of wrong. In fact it
imposes significant constraints on what can fall within the
class of wrongs for which repair can be a requirement of
justice. Finally, it does not require another full theory of
underlying wrongs in order to fill out its content. That is,
because corrective justice identifies a set of paradigms of
wrong compatible with it, the content of corrective justice
does not depend on a full moral theory of wrongs. Rather, the
notion of a wrong compatible with corrective justice may be
filled out by our practices of corrective justice — including
tort law.[4]
We turn now to the question of whether corrective justice is
an independent ideal of justice. Here the worry is that what
makes corrective justice seem like a principle of justice
undermines its claim to independence, and whatever supports
its independence undermines its claim to being a principle of
justice. Corrective justice is a principle that requires
correction in an underlying distribution of holdings. The
wrongs that are the concern of corrective justice, one might
think, are violations of duties we owe one another to respect
the rights we have in those holdings. If those holdings are just,
then corrective justice requires us to protect it. But in doing
so, it does no more than return individuals to the positions to
which they were entitled — as a matter of distributive justice.
Understood in this way, corrective justice is the ex post
component of distributive justice. That is, the claim to repair
is a requirement of distributive, not corrective, justice. Or, put
the other way, there is no independent principle of corrective
justice. On the other hand, if the underlying distribution is not
just, then corrective justice can sustain, enforce or entrench
unjust distributions of resources. In that case, corrective
justice is an independent principle, but it seeks to impose
duties to support unjust institutions. Independent, yes, a
principle of justice, no.
In meeting this objection, corrective justice theorists have
typically taken either of two approaches. The first is to
identify the domain of distributive justice with the initial or
underlying distribution of holdings and corrective justice with
the norms governing the ex post transfer of those holdings.
Corrective justice is a matter of transactional justice in this
sense. Whatever the underlying distribution of holdings may
be, we recognize legitimate and illegitimate means of
transferring them. These are separate, if related, concerns. If
agreement or gift moves resources from one person to
another, that is a legitimate form of transfer. If the result is a
more uneven or unfair overall distribution of resources, that is
a concern of distributive, not transactional justice. Similarly,
if fraud or force moves resources from one person to another,
that is an illegitimate form of transfer. If the result is more
equitable from the point of view of distributive justice, that
does not mean that the benefits and costs of the fraud ought
not to not be annulled. They must be as a matter of
transactional justice. And so on.
One problem with this line of argument is that it explains the
sense in which corrective justice is a principle of justice by
drawing what may well be an artificial distinction between
transactional and distributive justice. On most plausible views
of distributive justice, it concerns the mechanisms and
institutions of resource allocation — including markets, and
non-voluntary transfer practices. In other words, the
mechanisms of transfer are part of distributive justice. So the
distinction between the transactional and the distributive may
be artificial at best.[5]
The second solution is based on a distinction between the
justice of a distribution and its legitimacy. A legitimate
distribution of resources may fall short of being a fully just
one. While it may be true that no one can have a moral duty to
repair losses when doing so merely entrenches a patently
unjust distribution of resources, it is also not true that an
individual can have a duty to repair losses only if doing so
protects a less than fully just distribution of resources.
Individuals can have duties to repair losses that support
legitimate institutions for distributing holdings, and a system
of holdings can be legitimate even if it falls short of the
demands of justice.
Whereas a legitimate distribution of resources is adequate to
confer on each individual a right against others for repair in
the event of wrongful harm to his share, the legitimacy of the
system of holdings does not confer on each individual a right
against the government to prohibit redistribution. Indeed, the
government always has a right, indeed one could argue that it
has a duty, to redistribute holdings if justice requires doing so.
If a distribution is not just, the state can redistribute for the
purposes of achieving justice without triggering claims to
repair by those whose interests it hinders or harms. But a
distribution that is legitimate if not fully just is adequate to
ground private remedies in order to sustain the interests
individuals have in their holdings and to secure their
expectations accordingly.
It is a further question what the standard of legitimacy is.
What must be true of a distribution of holdings before
protecting or securing it by coercive rectificatory practices is
permissible as a matter of justice? This is too big a topic to
address here. We can say, though, that the notion of
legitimacy I have in mind is the same as that which generally
justifies coercion — e.g. in the name of the criminal law — in
legitimate but not fully just states. If these conditions are not
met, we might nevertheless endorse practices of repair that
protect holdings, but not as a matter of justice. Rather doing
so might be desirable to increase security or as a step along
the way to institutions that offer a legitimate promise of
prosperity and equality, or the like. Duties of repair are always
matters of ‘correction’, but they are not matters of corrective
justice unless the conditions of legitimacy in the institutions
of resource allocation are satisfied.[6]
We come finally to one last objection to the corrective justice
account of tort law. Here the worry is that if achieving
corrective justice were the concern of tort law, then
prosecuting wrongful conduct would be the province of the
state. In fact, the state's role in torts is primarily a passive one.
Tort law gives victims an option to pursue redress. The law
does not aim to achieve justice; it merely provides a
mechanism for victims to pursue redress. If tort law meant to
promote justice, it would more actively pursue wrongdoers
and prosecute cases against them. Victims would be
encouraged to appear as witnesses in such prosecutions, and
because they have an interest in having the prosecutions
succeed, they would do so. But victims are the prosecutors in
torts, not witnesses for the prosecution. On this view, if we
want to understand tort law, we need to uncover the reasons
we might have for providing victims with opportunities for
pursuing the particular form of redress tort law gives.[7]
This is an interesting line of argument, and I cannot give it the
care it warrants here. I would note, however, that one
response would begin by acknowledging that at bottom tort
law provides victims with a form of redress. The particular
form of redress it provides, however, is what one would
expect as a matter of corrective justice. Beyond that, the
reason the law does not prosecute on a victim's behalf or on
the behalf of the principle of corrective justice, may have
more to do with considerations of personal autonomy and
privacy than it has to do with the underlying aims of tort law.
That is, there are constraints on political power that limit the
authority of the state to sue on behalf of an unwilling victim.
It may be that the most the state can do consistent with respect
for personal autonomy and privacy is to provide victims with
the opportunity to seek repair and to insure that warranted
claims to repair are enforceable by the law. Lastly, we want to
distinguish between the claim that the law of torts embodies a
principle of corrective justice and the very different claim that
tort law aims to achieve or pursue corrective justice. Tort law
may have no such aims; it may have no aims at all. But it
would be a mistake to infer that tort law does not embody a
principle of corrective justice, or that it is best explained,
therefore, by the principle of corrective justice.
Bibliography
· Abel, Richard, 1990, "A Critique of Torts." UCLA Law
Review 37, 785.
· Benson, Peter, 1995, "The Basis for Excluding Liability
for Economic Loss in Tort Law." Philosophical
Foundations of Tort Law. Ed. David G. Owen. Oxford:
Clarendon Press.
· Calabresi, Guido, 1975, "Concerning Cause and the Law
of Torts." University of Chicago Law Review 43, 69-108.
· ------, 1970, The Costs of Accidents: A Legal and
Economic Analysis. New Haven: Yale University Press.
· ------, 1961, "Some Thoughts On Risk Distribution And
The Law Of Torts." Yale Law Journal 70, 499.
· Calabresi, Guido, and A. Douglas Melamed, 1972,
"Property Rules, Liability Rules and Inalienability."
Harvard Law Review 85, 1089.
· Calabresi, Guido, and Jon T. Hirschoff, 1972, "Toward a
Test for Strict Liability in Torts." Yale Law Journal 85,
1055.
· Chapman, Bruce, 2001, "Pluralism in Tort and Accident
Law: Towards a Reasonable Accommodation."
Philosophy and the Law of Torts. Ed. Gerald Postema.
New York: Cambridge University Press.
· ------, 1995, "Wrongdoing, Welfare, and Damages:
Recovery for Non-Pecuniary Loss in Corrective Justice."
in Philosophical Foundations of Tort Law. David G.
Owen (ed.), Oxford: Clarendon Press.
· Christie, George C., 1995, "The Uneasy Place of
Principle in Tort Law." in Philosophical Foundations of
Tort Law. David G. Owen (ed.), Oxford: Clarendon
Press.
· Coleman, Jules., 1982, "Corrective Justice And Wrongful
Gain." J. Legal Studies 11, 421-440.
· ------, 1988, Markets, Morals, and the Law, Cambridge:
Cambridge University Press.
· ------, 1992, "The Mixed Conception Of Corrective
Justice." Iowa L.Review 77, 427.
· ------, 1982, "Moral Theories of Torts: Their Scope and
Limits: Part I." Law and Philosophy 1, 371.
· ------, 1995, "The Practice of Corrective Justice." in
Philosophical Foundations of Tort Law. David G. Owen
(ed.), Oxford: Clarendon Press.
· ------, 2001, The Practice of Principle, Oxford: Oxford
University Press.
· ------, 1987, "Property, Wrongfulness, and the Duty to
Compensate." Chcago-Kent L. Rev 63, 451.
· ------, 1992a, Risks and Wrongs. New York: Cambridge
University Press.
· ------, 1992b, "Tort Law and the Demands of Corrective
Justice," Indiana Law Review 67, 349.
· ------, 1992c, "Tort Law and Tort Theory: Preliminary
Reflections on Method." in Philosophy and the Law of
Torts. Gerald Postema (ed.), New York: Cambridge
University Press.
· Coleman, Jules, and Arthur Ripstein, 1995, "Mischief
and Misfortune," McGill Law Journal 41, 91.
· Cooper-Stephenson, Ken, 1993, "Corrective Justice,
Substantive Equality, and Tort Law." in Tort Theory.
Ken Cooper-Stephenson and Elaine Gibson (eds.),
Toronto: Captus Press.
· ------, 1993, "Economic Analysis, Substantive Equality,
and Tort Law." in Tort Theory. Ken Cooper-Stephenson
and Elaine Gibson (eds.), Toronto: Captus Press.
· Englard, Izhak, 1995, "The Idea of Complementarity as a
Philosophical Basis for Pluralism in Tort Law." in
Philosophical Foundations of Tort Law. David G. Owen
(ed.), Oxford: Clarendon Press.
· ------, 1993, The Philosophy of Tort Law. Aldershot:
Dartmouth Publishing Company.
· Epstein, Richard A., 1979, "Causation and Corrective
Justice. A Reply to Two Critics." J. Legal Studies 8, 477-
504.
· ------, 1973, "A Theory of Strict Liability." J. Legal
Studies 2, 151-204.
· Finnis, John, 1995, "Intention in Tort Law." in
Philosophical Foundations of Tort Law. David G. Owen
(ed.), Oxford: Clarendon Press.
· Fletcher, George P., 1972, "Fairness and Utility in Tort
Theoery," Harvard Law Review 85, 537.
· Gardner, John, 2001, "Obligations and Outcomes in the
Law of Torts." in Relating to Responsibility: Essays for
Tony Honore. Peter Cane and John Gardner (eds.),
Oxford: Hart Publishing.
· Geistfeld, Mark, 2001, "Economics, Moral Philosophy,
and the Positive Analysis of Tort Law." in Philosophy
and the Law of Torts. Gerald Postema (ed.), New York:
Cambridge University Press.
· Goldberg, John, 1997, "Misconduct, Misfortune, and Just
Compensation: Weinstein on Torts." Columbia Law
Review 97, 2034.
· ------, 2002, "Twentieth Century Tort Theories." Geo.
Law Journal 90.
· Goldberg, John, and Ben Zipursky, 1998, "The Moral of
MacPherson." University of Pennsylvania Law Review
146, 1733.
· ------, 2001, "The Restatement (Third) and the Place of
Duty in Negligence Law." Vanderbilt Law Review 54,
657.
· ------, 2002, "Unrealized Torts." Virginia Law Review 88,
1625.
· Gordley, James, 1995, "Tort Law in the Aristotelian
Tradition." in Philosophical Foundations of Tort Law.
David G. Owen (ed.), Oxford: Clarendon Press.
· Green, Leon, 1960, "Foreseeability in Negligence Law."
Columbia Law Review 61, 1401.
· Honore, Tony, 1995, Foundations of Tort Law. Oxford:
Clarendon.
· ------, 1995, "The Morality of Tort Law — Questions and
Answers." in Philosophical Foundations of Tort Law.
David G. Owen (ed.), Oxford: Clarendon Press.
· ------, 1995, "Necessary and Sufficient Conditions in Tort
Law." in Philosophical Foundations of Tort Law. David
G. Owen (ed.), Oxford: Clarendon Press.
· Kaplow, Louis, and Steven Shavell, 2002, Fairness
versus Welfare. Cambridge: Harvard University Press.
· Keating, Gregor, 2001,. “Social Contract Concept of the
Tort Law of Accidents.” in Philosophy and the Law of
Torts. Gerald Postema (ed.), New York: Cambridge
University Press.
· Keeton, Robert E., 1962, "Creative Continuity in the Law
of Torts," Harvard Law Review 75, 463.
· Kress, Ken, 1995, "The Seriousness of Harm Thesis for
Abnormally Dangerous Activities." in Philosophical
Foundations of Tort Law. David G. Owen (ed.), Oxford:
Clarendon Press.
· Owen, David G., 1985, "Deterrence and Desert in Tort:
A Comment." Cal. L. Rev. 73, 665.
· ------, 1989, "The Moral Foundations of Punitive
Damages." Alabama Law Review 40, 705.
· ------, 1995, "Philosophical Foundations of Fault in Tort
Law, in Philosophical Foundations of Tort Law. David
G. Owen (ed.), Oxford: Clarendon Press.
· ------, 1995, "Why Philosophy Matters to Tort Law." in
Philosophical Foundations of Tort Law. David G. Owen
(ed.), Oxford: Clarendon Press.
· Perry, Stephen, 1992, "Comment on Coleman:
Corrective Justice," Indiana Law Journal 67, 381-409.
· ------, 1996, "The Distributive Turn: Mischief,
Misfortune, and Tort Law," Quinnipiac Law Review 16,
315-38.
· ------, 1988, "The Impossibility of General Strict
Liability, Canadian Journal of Law and Jurisprudence 1,
147-71.
· ------, 1993, "Loss, Agency, and Responsibility for
Outcomes: Three Conceptions of Corrective Justice." in
Tort Theory. Ken Cooper-Stephenson and Elaine Gibson
(eds.), Toronto: Captus Press.
· ------, 1992, "The Mixed Conception of Corrective
Justice," Harvard Journal of Law & Public Policy 15,
917-38.
· ------, 1992, "The Moral Foundations of Tort Law," Iowa
Law Review 77, 449-514.
· ------, 2000, "On the Relationship between Corrective
and Distributive Justice," in J. Horder, ed., Oxford
Essays in Jurisprudence, Fourth Series, Oxford:
Clarendon Press.
· ------, 2001, "Responsibility for Outcomes, Risks, and the
Law of Torts," in Postema 2001 (see below).
· ------, 1995, "Risk, Harm, and Responsibility." in
Philosophical Foundations of Tort Law. David G. Owen
(ed.), Oxford: Clarendon Press.
· ------, 1996, "Tort Law." in Companion to the Philosophy
of Law and Legal Theory. Dennis Patterson (ed.),
Oxford: Blackwell Publishers.
· Polinsky, A. Mitchell, and Steven Shavell, 1994, "Should
Liability Be Based on the Harm to the Victim or the Gain
to the Injurer?" Journal of Law, Economics, and
Organization 10, 427-437.
· Posner, Richard A., 1981, "The Concept of Corrective
Justice in Recent Theories of Tort Law," Journal of
Legal Studies 10, 187.
· ------, 1972, "A Theory of Negligence." J. Legal Studies
1, 29.
· ------, 1995, "Wealth Maximization and Tort Law: A
Philosophical Inquiry." in Philosophical Foundations of
Tort Law. David G. Owen (ed.), Oxford: Clarendon
Press.
· Postema, Gerald, ed., 2001, Philosophy and the Law of
Torts. New York: Cambridge University Press.
· Rabin, Robert, ed., 1995, Perspectives on Tort Law. 3rd
ed. Boston: Little Brown.
· Ripstein, Arthur, 1994, "Equality, Luck, and
Responsibility." Philosophy and Public Affairs 23, 3-23.
· ------, 1998, Equality, Responsibility, and the Law.
Cambridge: Cambridge University Press.
· ------, 2002, "Private Law and Private Narratives."
Oxford Journal of Legal Studies 20, 683-702.
· ------, 2000, "Three Duties to Rescue." Law and
Philosophy 19, 751-779.
· ------, 2001, "Torts." The Oxford Handbook of
Jurisprudence and Legal Philosophy. Jules Coleman and
Scott Shapiro (eds.), Oxford: Oxford University Press.
· Ripstein, Arthur, and Benjamin Zipursky, 2001,
"Corrective Justice in an Age of Mass Torts." in
Philosophy and the Law of Torts. Gerald Postema (ed.),
New York: Cambridge University Press.
· Schwartz, Gary T., 1978, "Contributory and Comparative
Negligence: A Reappraisal." Yale Law Journal 87, 697-
727.
· ------, 1983, "Deterrence and Punishment in the Common
Law of Punitive Damages." Southern California Law
Review 56, 796-852.
· ------, 1990, "The Ethics and Economics of Tort Liability
Insurance." Cornell Law Review 76, 313-365.
· ------, 1997, "Mixed Theories of Tort Law: Affirming
Both Deterrence and Corrective Justice." Texas Law
Review, 75, 1801-1834.
· ------, 1994, "Reality in the Economic Analysis of Tort
Law: Does Tort Law Really Deter?" UCLA Law Review
42, 377-444.
· ------, 1981, "The Vitality of Negligence and the Ethics
of Strict Liability." Georgia Law Review 15, 963-1004.
· Shavell, Steven, 1980, "An Analysis of Causation and
the Scope of Liability in the Law of Torts." Journal of
Legal Studies 9, 463-516.
· ------, 1998, "Causation and Tort Liability." in The New
Palgrave Dictionary of Economics and the Law. Peter
Newman (ed.), New York: Stockton Press.
· ------, 1987, Economic Analysis of Accident Law.
Cambridge: Harvard University Press.
· ------, 1984, "Liability for Harm versus Regulation of
Safety." Journal of Legal Studies 13, 357-374.
· ------, 1980, "Strict Liability versus Negligence." Journal
of Legal Studies 9, 1-25.
· ------, 1983, "Torts in Which Victim and Injurer Act
Sequentially." Journal of Law and Economics 26, 589-
612.
· Simons, Kenneth W., 1995, "Contributory Negligence:
Conceptual and Normative Issues." in Philosophical
 Foundations of Tort Law. David G. Owen (ed.), Oxford:
Clarendon Press.
· ------, 1990, "Corrective Justice and Liability for Risk
Creation: A Comment," UCLA Law Review 38, 113.
· ------, 1996, "Deontology, Negligence, Tort, and Crime."
Boston University Law Review 76, 273.
· ------, 1992, "Jules Coleman and Corrective Justice in
Tort Law: A Critique and Reformulation," Harvard
Journal of Law and Public Policy 15, 849.
· Stone, Martin, 2001, "The Significance of Doing and
Suffering." in Philosophy and the Law of Torts. Gerald
Postema (ed.), New York: Cambridge University Press.
· Street, Thomas A., 1999, The Theory and Principles of
Tort Law. Washinton, D.C.:Beard.
· Weinrib, Ernest J., 1980, "The Case for a Duty to
Rescue." Yale Law Journal 90, 247.
· ------, 1987, "Causation and Wrongdoing," Chicago-Kent
Law Review 63, 407.
· ------, 1992, "Corrective Justice," Iowa Law Review 77,
403
· ------, 1995, "The Gains and Losses of Corrective
Justice," Duke Law Review 44, 277-97.
· ------, 1995, The Idea of Private Law. Cambridge:
Harvard University Press.
· ------, 1989, "Right and Advantage in Private Law,"
Cardoza Law Review 10, 1283.
· ------, 1988, "The Special Morality of Tort Law," McGill
Law Journal 34, 403.
· ------, 2002, Tort Law. Aldershot: Ashgate Publishing.
· ------, 1989, "Understanding Tort Law," Valparaiso Law
Review 23, 485.
· Williams, Bernard, 1995, "What Has Philosophy to
Learn From Tort Law?" in Philosophical Foundations of
 Tort Law. David G. Owen (ed.), Oxford: Clarendon
Press.
· Wright, Richard W., 1985, "Causation in Tort Law."
California Law Review 73, 1737-1828.
· ------, 1995, "Rights, Justice, and Tort Law." in
Philosophical Foundations of Tort Law. David G. Owen
(ed.), Oxford: Clarendon Press.
· ------, 1995, "The Standards of Care in Negligence Law."
in Philosophical Foundations of Tort Law. David G.
Owen (ed.), Oxford: Clarendon Press.
· Zipursky, Benjamin, 1998, "Rights, Wrongs, and
Recourse in the Law of Torts." Vanderbilt Law Review
51, 1-100.
Other Internet Resources
· Tort Law & Unjust Enrichment, Links to relevant articles
from the Encyclopedia of Law and Economics, supported
by the Economic Institute/CIAV of Utrecht University
and the Department of General Jurisprudence and
History of Law, University of Ghent.
Related Entries
causation: in the law | justice: distributive | legal philosophy:
economic analysis of law | privacy
Copyright © 2003 by
Jules Coleman <jules.coleman@yale.edu>