Private Law Theory

Abstract:
Corrective justice theories of tort law claim that tort law’s basic structure must be understood in terms of moral principles of corrective justice. Formulations of these principles vary, but they hold (roughly) that one person who injures another wrongfully has a duty to repair the losses associated with that injury. In the last decade, several tort theorists have criticized traditional corrective justice theories for, among other things, failing to account for key structural features of tort practice. This article outlines and defends an alternative conception of corrective justice called the making amends conception. By understanding corrective justice as just another name for the familiar moral phenomenon of making amends, and by viewing tort law as a formalization of that informal phenomenon, we can arrive at a conception of corrective justice that can resist the criticisms while providing an independently attractive picture of tort law.

Encarnacion, Erik, Corrective Justice as Making Amends (February 2, 2013).

First posted 2013-03-21 17:15:28