, Volume 30, Issue 1, pp 1-50
Date: 22 Sep 2010

What is Tort Law For? Part 1. The Place of Corrective Justice

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Abstract

In this paper I discuss the proposal that the law of torts exists to do justice, more specifically corrective justice, between the parties to a tort case. My aims include clarifying the proposal and defending it against some objections (as well as saving it from some defences that it could do without). Gradually the paper turns to a discussion of the rationale for doing corrective justice. I defend what I call the ‘continuity thesis’ according to which at least part of the rationale for doing corrective justice is to mitigate one’s wrongs, including one’s torts. I try to show how much of the law of torts this thesis helps to explain, but also what it leaves unexplained. In the process I show (what I will discuss in a later companion paper) that ‘corrective justice’ cannot be a complete answer to the question of what tort law is for.

This paper is a remote descendant of my Lord Upjohn Lecture, ‘What is Tort Law For?’, delivered to the Association of Law Teachers at Gray’s Inn, London on 6 June 2003. Since then different versions (with various names) have been presented at Dartmouth College, the Australian National University, the University of Oxford, the University of East Anglia, the University of Texas at Austin, Yale Law School, the University of Glasgow, the University of Edinburgh, and the American Philosophical Association (Eastern Division). Many people – too many to list or even to keep track of – made valuable comments and suggestions on these occasions, leading to countless revisions and reorientations. Allow me, however, to reserve special mention for Sameer Singh, Andrew Gold, Aditi Bagchi, Prince Saprai, Matthew Henken, Ben Zipursky, and Jules Coleman.