Main source: Coleman, Jules and Mendlow, Gabriel, “Theories of Tort Law “, The Stanford Encyclopedia of Philosophy (Fall 2010 Edition), Edward N. Zalta (ed.), URL = .

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Theories of Tort Law : Justice, Rights, and Duties

3.1 Corrective Justice

Corrective justice theory – the most influential non-economic perspective on tort law – understands tort law as embodying a system of first- and second-order duties. Duties of the first order are duties not to injure. These duties establish norms of conduct. (Some theorists believe that corrective justice has nothing to say about the character of these norms; others think that it helps define their scope and content.) Duties of the second order are duties of repair. These duties arise upon the breach of first-order duties. That second-order duties so arise follows from the principle of corrective justice, which says that an individual has a duty to repair the wrongful losses that his conduct causes. For a loss to be wrongful in the relevant sense, it need not be one for which the wrongdoer is morally to blame. It need only be a loss incident to the violation of the victim’s right not to be injured – a right correlative to the wrongdoer’s first-order duty not to injure.

We can bring out what is distinctive about the corrective justice approach to tort law by contrasting it with various alternatives.
3.1.1 Corrective Justice versus Economic Analysis

From the standpoint of economic analysis, all legal liabilities are but costs of one sort or another, there being no normative differences between such things as licensing fees, tort liability, and taxes. In contrast, corrective justice theory maintains that tort liability is not simply a mechanism for shifting costs. A licensing fee imposes a cost, as does a tax, but we would not say that in levying fees or taxes we are holding people responsible. For this reason, corrective justice theory insists that different legal liabilities are not simply interchangeable cost-shifting implements in the reformer’s tool box.
3.1.2 Corrective Justice versus Retributive Justice

Many theorists believe that a principle of retributive justice – say, that the blameworthy deserve to suffer – does a good job of interpreting and justifying criminal law. Yet most theorists think that such a principle does a rather poor job of interpreting and justifying tort law (except, perhaps, for the part of tort law concerned with punitive damages). First, the concept of responsibility at play in tort law is that of ‘outcome responsibility,’ not moral responsibility. Tort asks whether a given loss is something that the defendant in some sense owns. It does not ask whether the defendant’s action is something for which he is morally to blame. Second, the duty of repair in tort is in essence a debt of repayment. Like other debts of repayment, it can be paid by third parties – and not just when the creditor (the plaintiff) has authorized repayment. By contrast, ‘debts’ incurred as a result of criminal mischief can never be paid by third parties. You cannot serve my prison sentence. Third, a person cannot guard against liability to criminal sanction by purchasing insurance. Yet it is common to purchase insurance to guard against the burdens of tort liability. Indeed, in some areas of life (e.g., driving), purchasing third-party insurance is mandatory.
3.1.3 Corrective Justice versus Distributive Justice

Some theorists are skeptical of the idea that corrective justice is really an independent principle of justice. Their concern is twofold: considerations that make corrective justice seem like a genuine principle of justice also seem to undermine its independence from distributive justice (justice in the distribution of resources); at the same time, considerations that support the principle’s independence from distributive justice also seem to undermine its status as a genuine principle of justice. This twofold concern stems from the fact that corrective justice requires the reversal of wrongful changes to an initial distribution of resources. If, on the one hand, some initial distribution of resources is just, then corrective justice seemingly does no more than require that we return individuals to the position to which they are entitled merely as a matter of distributive justice. This suggests that corrective justice is but distributive justice from an ex post perspective rather than an independent principle of justice. If, on the other hand, an initial distribution of resources is unjust, then corrective justice seemingly requires that we sustain, enforce, or entrench what is ex hypothesi an injustice. This suggests that corrective justice is not really a matter of justice at all: independent, yes; a genuine principle of justice, no.

First Response: Corrective Justice as Transactional Justice. Some theorists respond by suggesting that we understand corrective justice as a kind of transactional justice. These theorists identify the domain of distributive justice with the initial distribution of holdings and take corrective justice to be concerned exclusively with norms of transfer, norms that govern whether departures from an initial distribution are legitimate. Whatever the underlying pattern of holdings, we can distinguish legitimate modes of transfer from illegitimate modes. If agreement or gift moves resources from one person to another, then the mode of transfer is legitimate. Never mind whether the resultant allocation of resources is unequal or unfair: that is a concern of distributive, not transactional, justice. If fraud or force moves resources from one person to another, then the mode of transfer is illegitimate. Even if an illegitimate transfer gives rise to an equitable distribution, the transaction is unjust and must therefore be annulled.

Second Response: Justice versus Legitimacy. Other theorists respond by distinguishing between a distribution’s justness and its legitimacy. These theorists allow that a legitimate distribution of resources may fall short of being a fully just distribution. But they insist that a (merely) legitimate distribution can suffice to generate duties of repair.
3.2 Civil Recourse Theory

Civil recourse theory agrees with corrective justice theory that tort’s normative structure involves a variety of first-order duties, duties that establish norms of conduct. Yet civil recourse theory takes a very different view of the legal consequence of a first-order duty’s breach. Whereas corrective justice theory holds that such a breach saddles the would-be defendant with a second-order duty – in particular, a duty of repair – civil recourse theory holds that no such second-order duty results directly from the breach. Rather, the breach of a first-order duty endows the victim with a right of action: a legal power to seek redress from her injurer. That this power so arises follows from what proponents regard as a deeply embedded legal principle – the principle of civil recourse – which says that one who has been wronged is legally entitled to an avenue of recourse against the perpetrator.

Civil recourse theory has substantial explanatory power. Perhaps most obvious, it explains why tort suits have a bilateral structure – why the victim of a tortious wrong seeks redress from the wrongdoer herself instead of drawing on a common pool of resources. It also explains why tort suits are privately prosecuted – why the state does not act of its own accord to impose liability on those who breach first-order duties. According to civil recourse theory, the breach of a first-order duty gives rise not to a legal duty but to a legal power, a power the victim can choose not to exercise.

Furthermore, civil recourse theory accommodates a number of tort’s central substantive features, features that arguably elude corrective justice theory. Prominent among these are (i) the fact that tort offers a variety of different remedies, only some of which are designed to restore the plaintiff’s antecedent holdings, and (ii) the fact that the defendant incurs a legal duty to pay damages only upon a lawsuit’s successful conclusion (either by settlement or by the final judgment of a court), rather than immediately upon the breach of a first-order duty. It remains unresolved whether corrective justice theory has the resources to explain these two substantive features.

Despite its explanatory power, civil recourse theory is vulnerable to a potentially serious objection – or else it seems to leave tort law vulnerable to such an objection. Because civil recourse theory offers little guidance as to what sort of redress is appropriate, the theory depicts tort law primarily as an institution that enables one person to harm another with the aid of the state’s coercive power. Tort law may well be such an institution, of course. But if it is, it may be deeply flawed – indeed, it may be unjust. This problem can be posed in the form of a dilemma. Either the principle of civil recourse is grounded in a principle of justice or it is not. If the principle of civil recourse is grounded in a principle of justice, then civil recourse theory threatens to collapse into a kind of a justice-based theory. If the principle of civil recourse is not so grounded, then the principle apparently does no more than license one party to inflict an evil on another. If that is what the principle does, we might reasonably wonder whether it can justify or even make coherent sense of an entire body of law.
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California Law Review, Columbia Law Review, Common law, Theories of Tort Law, Theories of Tort Law: Economic Analysis.