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On Belling the Cat: Rawls & Tort as Corrective Justice


David Blankfein-Tabachnick


Michigan State University College of Law

Kevin A. Kordana


University of Virginia - School of Law


Virginia Law Review, Vol. 92, 2006

Abstract:     
Recent scholarship has argued that post-institutional theories of distributive justice, specifically Rawlsianism, are compatible with a principled commitment to corrective justice. We argue that however attractive on independent or pre-institutional moral grounds a principled commitment to corrective justice and its corresponding model of tort law may be, it is misleading to think that the Rawlsian post-institutional conception of distributive justice is, at the level of principle, consistent with such an independent commitment. We argue that holding the truth of a maximizing theory of distributive justice in conjunction with a principled commitment to corrective justice is inconsistent. The attempt to hold both positions as true may flow, we suggest, from an unjustified presumption about the compatibility of post-institutional - particularly, maximizing - theories of distributive justice and other non-maximizing moral commitments which one might hold or view as appealing on grounds independent of one's commitment to distributive justice. In our view, the values enshrined in Rawls's two principles of justice (taken in lexical order) reflect the deontological features of Rawls's original position. The principles of justice themselves, however, once adopted, function as consequentialist maximizing principles, taken in lexical priority, in selecting between competing complete schemes of legal and political institutions. While the tension between the corrective justice and the utilitarian or wealth maximization conceptions of tort law has long been discussed and is well understood, the relationship between the corrective justice conception of torts and post-institutional theories of distributive justice (in particular, Rawlsianism) has only recently received sustained attention. Recent articles by Stephen Perry and Arthur Ripstein emphasize the compatibility - or even the necessity - of corrective justice (i.e., as an "independent" component of justice) within the Rawlsian distributive scheme. We argue, contra this emerging view, that distributive justice, in particular Rawlsianism, conflicts at the level of principle with corrective justice, and that it is inconsistent to remain (as a matter of principle) independently committed to both, given the Rawlsian view of property. In short, our central claim is that Rawlsian ideal theory is best understood as adopting the consequentialist (outcome-oriented) theory of tort law.

Number of Pages in PDF File: 44

Keywords: repair, corrective justice, distributive justice, Rawls, Tort, contract, private law, Ripstein, Perry, liberty, difference principle, principles of justice

JEL Classification: D63, K12, K13, L51

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Date posted: July 21, 2006  

Suggested Citation

Blankfein-Tabachnick, David and Kordana, Kevin A., On Belling the Cat: Rawls & Tort as Corrective Justice. Virginia Law Review, Vol. 92, 2006. Available at SSRN: http://ssrn.com/abstract=918643

Contact Information

David Blankfein-Tabachnick (Contact Author)
Michigan State University College of Law ( email )
648 N Shaw Ln
East Lansing, MI 48824
United States
HOME PAGE: http://www.law.msu.edu/faculty_staff/profile.php?prof=924
Kevin A. Kordana
University of Virginia - School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States
804-924-3680 (Phone)
804-924-7536 (Fax)

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