NCJ Number
138015
Journal
Indiana Law Journal Volume: 67 Issue: 2 Dated: (Winter 1992) Pages: 349-379
Date Published
1992
Length
31 pages
Annotation
This article presents an account of tort law that makes the principle of fault liability central to the institution of tort law and its ultimate moral defensibility; the moral foundation for the fault principle is explained in the context of the concept of corrective, not retributive, justice.
Abstract
The correct theory of tort law captures the insights and avoids the pitfalls of economic analysis and the theory of strict liability. Such is the theory of corrective justice. Unlike strict liability, corrective justice holds that claims to repair need not depend on a right having been invaded, wrongfully or otherwise. The wrongful invasion of a legitimate interest (a wrongful harming) can occasion wrongful losses. To the extent rights are involved, the strict liability theorist is correct that the claims to repair, when they are matters of justice, depend on the invasion of the right, not on the injurer's wrongdoing; however, not every claim to repair that depends on the existence of a right is grounded in the right having been invaded. Some claims to repair arise as a way of respecting the victim's right. This is the insight of economic analysis, not strict liability. Although the principle of corrective justice cannot provide a full explanation of tort practice, it is a fundamental concept. 21 footnotes