Wednesday, October 6, 2021
Greg Keating has posted to SSRN Corrective Justice: Sovereign or Subordinate?. The abstract provides:
This chapter discusses the concept of corrective justice, which has been at the heart of much recent scholarship on the law of torts in particular, and private law more generally. Notwithstanding its familiarity, ancient origin, and apparent universal acceptance, the concept of corrective justice has produced a remarkable number of distinct conceptions and has stirred up major controversies. For at least a generation, corrective justice stood at the center of the argument between economic and non-economic theories of tort. For legal econo¬mists, corrective justice was an aspect of the institution of tort law. It was part of the data that needed to be explained and justified in economic terms. Corrective justice was subor¬dinate. It was a feature of—not a justification for—the institution of tort law. For legal philosophers Ernest Weinrib and Jules Coleman—who championed corrective justice as the counter-theory to economic analysis—corrective justice was sovereign. It was both in¬stantiated in the institution of tort law and the justification for the institution. It was incipiently and powerfully normative. Furthermore, the justification that corrective justice supplied was formal, not instrumental. The chapter explains and analyzes corrective justice in light of this history, in the hope that this will set the stage for tort theory to move forward.