Abstract
This paper explores how the widely acknowledged conception of tort law as corrective justice is to be applied to the law of negligence. Corrective justice is an ordering of transactions between two parties which restores them to an antecedent equality. It is thus incompatible with the comprehensive aggregation of utilitarianism, and it stands in easy harmony with Kantian moral notions. This conception of negligence law excludes both maximizing theories, such as Holmes' and Posner's, and Fried's risk pool, which combines Kantianism with distributive rather than corrective justice.
Central to the Kantian approach is the impermissibility of self-preference. The two types of self-preference, self-preference in conception and self-preference in action can respectively account for the objective standard and the Learned Hand test, which are the two most characteristic features of negligence and which are generally (and wrongly) considered to be inescapably aggregative. This corrective justice conception of the negligence standard can then be compared to Epstein's corrective justice conception of strict liability, and arguments can be offered in favour of the superiority of the former.
Similar content being viewed by others
Author information
Authors and Affiliations
Additional information
This paper has benefited from the comments of the other participants in the Values in Tort Law symposium sponsored by the Westminster Institute. I would also like to thank Stephen Perry, Peter Benson, Jerry Bickenbach and Raymond Frey for their assistance and criticisms.
Rights and permissions
About this article
Cite this article
Weinrib, E.J. Toward a moral theory of negligence law. Law Philos 2, 37–62 (1983). https://doi.org/10.1007/BF00145312
Issue Date:
DOI: https://doi.org/10.1007/BF00145312