Private Law Theory

Abstract:
I argue in this paper that negating and counterbalancing should be recognised as two fundamental categories of corrective action. First, I show that recognising the distinction helps to avoid confusion when asking normative questions about the justification of imposing corrective duties. Second, I argue that we have moral reasons to care about the difference between negating and counterbalancing detrimental states, and this has implications for permissible action. I then outline some ways in which the discussion helps us explain and justify specific legal remedies in private law, and I conclude by noting some exceptions to the normative priority of negating over counterbalancing.

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Adam Slavny, Negating and Counterbalancing: A Fundamental Distinction in the Concept of a Corrective Duty. Law and Philosophy, March 2014, Volume 33, Issue 2, pp 143-173.

First posted 2014-02-16 09:48:25