Corrective Justice: Sovereign or Subordinate?

The Oxford Handbook of the New Private Law 2020

USC CLASS Research Paper No. CLASS21-49

USC Law Legal Studies Paper No. 21-49

18 Pages Posted: 28 Sep 2021

See all articles by Gregory C. Keating

Gregory C. Keating

University of Southern California Gould School of Law

Date Written: November 1, 2020

Abstract

This chapter discusses the concept of corrective justice, which has been at the heart of much recent scholarship on the law of torts in particular, and private law more generally. Notwithstanding its familiarity, ancient origin, and apparent universal acceptance, the concept of corrective justice has produced a remarkable number of distinct conceptions and has stirred up major controversies. For at least a generation, corrective justice stood at the center of the argument between economic and non-economic theories of tort. For legal econo¬mists, corrective justice was an aspect of the institution of tort law. It was part of the data that needed to be explained and justified in economic terms. Corrective justice was subor¬dinate. It was a feature of—not a justification for—the institution of tort law. For legal philosophers Ernest Weinrib and Jules Coleman—who championed corrective justice as the counter-theory to economic analysis—corrective justice was sovereign. It was both in¬stantiated in the institution of tort law and the justification for the institution. It was incipiently and powerfully normative. Furthermore, the justification that corrective justice supplied was formal, not instrumental. The chapter explains and analyzes corrective justice in light of this history, in the hope that this will set the stage for tort theory to move forward.

Keywords: corrective justice, tort law, private law, tort, economic analysis, tort theory, Ernest Weinrib, Jules Cole­man

Suggested Citation

Keating, Gregory C., Corrective Justice: Sovereign or Subordinate? (November 1, 2020). The Oxford Handbook of the New Private Law 2020 , USC CLASS Research Paper No. CLASS21-49, USC Law Legal Studies Paper No. 21-49, Available at SSRN: https://ssrn.com/abstract=3872107

Gregory C. Keating (Contact Author)

University of Southern California Gould School of Law ( email )

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Los Angeles, CA 90089
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