Right, Justice, and Tort Law


in The Philosophical Foundations of Tort Law

Published in print July 1997 | ISBN: 9780198265795
Published online March 2012 | e-ISBN: 9780191682971 | DOI:
Right, Justice, and Tort Law

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The two principal monistic theories of law are the utilitarian efficiency theory and the Kantian-Aristotelian theory of right or justice, based on the foundational norm of equal individual freedom, which asserts that the purpose of tort law is and should be just compensation and deterrence. It is clear that the equal freedom theory, rather than the utilitarian efficiency theory, provides the foundation for morality and law in general and for tort law in particular. This chapter elaborates the equal freedom theory underlying the concepts of right and justice, arguing that this theory and its constituent concept of corrective justice undergird the general structure, content, and institutions of tort law. It expands and deepens the argument by shifting from the global perspective to a detailed normative and descriptive analysis of one of the central issues in tort law: the standards of care in negligence law.

Keywords: monistic theories; tort law; utilitarian efficiency; right; justice; equal freedom; corrective justice; negligence law

Chapter.  11590 words. 

Subjects: Jurisprudence and Philosophy of Law

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