Abstract

http://ssrn.com/abstract=1924521
 
 

Citations (1)



 
 

Footnotes (46)



 


 



The Priority of Respect Over Repair


Gregory C. Keating


University of Southern California Law School

September 24, 2012

18 Legal Theory 293 (2012)
USC CLEO Research Papers Series No. C11-12
USC Legal Studies Research Papers Series No. 11-20

Abstract:     
Contemporary tort theory is dominated by a debate between legal economists and corrective-justice theorists. Legal economists suppose that tortfeasors and tortious wrongs are false targets for cheapest cost-avoiders and avoidable future losses. Corrective-justice theorists argue powerfully that the economic account of tort as search for cheapest cost-avoiders with respect to future accidents does not capture the most fundamental fact about tort adjudication, namely, that the reason we hold defendants liable in tort is that they have wronged their victims and should therefore repair the harm they have done. Deterring cheapest cost-avoiders from committing future harms no more justifies imposing liability in tort than deterring future crime justifies hanging the innocent.

This is a powerful critique of the economic theory of tort, but it overshoots the mark. As an account of tort law, corrective justice puts the cart before the horse Tort is a law of wrongs, not just a law of redress for wrongs. Repairing harm wrongly done is the next best way of complying with an obligation not to do harm wrongly in the first place. Rights and remedies form a unity in which rights have priority. Corrective justice is thus an essential but subordinate aspect of tort. This paper develops this line of criticism of corrective-justice theory and offers an alternative account of tort that places primary norms of harm avoidance and respect for rights at its center. On this conception, tort is — as the corrective-justice theorists rightly insist — a law of wrongs, but its distinctiveness lies in the content and character of the wrongs with which it is concerned. At its core, tort is concerned with protecting essential conditions of individual agency.

Number of Pages in PDF File: 47

Accepted Paper Series





Download This Paper

Date posted: September 10, 2011 ; Last revised: November 12, 2013

Suggested Citation

Keating, Gregory C., The Priority of Respect Over Repair (September 24, 2012). 18 Legal Theory 293 (2012); USC CLEO Research Papers Series No. C11-12; USC Legal Studies Research Papers Series No. 11-20. Available at SSRN: http://ssrn.com/abstract=1924521

Contact Information

Gregory C. Keating (Contact Author)
University of Southern California Law School ( email )
699 Exposition Boulevard
LAW 462
Los Angeles, CA 90089
United States
213-740-2565 (Phone)
213-740-5502 (Fax)

Feedback to SSRN


Paper statistics
Abstract Views: 1,184
Downloads: 178
Download Rank: 101,892
Citations:  1
Footnotes:  46

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo1 in 0.375 seconds