Corrective Justice, Well-being, and Responsibility

Abstract

In this paper I argue that Coleman's mixed conception of corrective justice is subject to three important objections. First, it does not offer an explanation of the normative structure of tort law. The values of responsibility and concern for human well-being, on which Coleman grounds the practice of tort law, are not enough to justify its bilateral structure. Moreover, I suggest that the mixed conception does not offer a sufficiently deep analysis of the practice that might have explanatory power. Second, the mixed conception cannot account for all cases of strict liability. Coleman's argument reconstructs strict liability for risky activities as part of the fault principle. This goes against conventional wisdom, according to which strict liability regulates lawful activities, and fault liability is always imposed for wrongful actions. Finally, Coleman neglects the distributive aspect of tort law. As a result, he misses the importance of liability rules in creating the scheme of primary rights and duties that regulates private interactions. On the other hand, I offer a new account of tort law that is immune to these objections and at the same time is able to accommodate the significance of human wellbeing and individual responsibility

This work was carried out within project No. DER2010-21331-C02-02, of the Ministry of Science and Innovation (Spain)