Tort from scratch : the philosophical foundations of harm, actionability and corrective duties
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| Title: | Tort from scratch : the philosophical foundations of harm, actionability and corrective duties |
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| Authors: | Slavny, Adam |
| Summary: | This 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. |
| URL: | https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.606131 |
| Database: | OpenDissertations |
| Abstract: | This 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. |
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