2 research outputs found
Tort from scratch : the philosophical foundations of harm, actionability and corrective duties
Get PDFThis thesis builds a normative theory of tort law by exploring the philosophical foundations
of harm, actionability and corrective duties. In chapters 1 and 2 I survey previous literature
in tort theory, arguing that normative questions have generally been neglected in favour of
interpretive ones. I also defend the case-based methodology, familiar to moral philosophers,
which I employ throughout. In chapter 3 I investigate the metaphysics of harm, making two
claims: first, we should define harm as setback to wellbeing, and second, we should accept a
complex version of the counterfactual view. In chapter 4 I distinguish between two
fundamental forms of corrective action – negating and counterbalancing – and argue that
they have important implications for tort theory. In chapter 5 I inquire whether a victim’s
false beliefs about her wellbeing should have any impact on her claim to compensation
against a wrongdoer. Chapter 6 offers a critique of George Fletcher’s theory of reciprocity as
a moral basis for corrective duties. Having rejected it, I propose a set of alternative
principles that more plausibly explains our judgement about whether an injurer ought to
compensate her victim. Finally, chapter 7 discusses the relationship between corrective and
distributive justice. I argue that, contrary to the claims of some theorists, corrective justice
cannot be insulated from distributive justice
