Corrective and Distributive Justice in Tort Law

Abstract

Liability in tort law is traditionally justified by the notion of corrective justice, but what about the role of distributive justice? This simple question brings up fundamental issues, such as exactly what it is in which the victim is restored after the tort of the wrongdoer, and how to define the limits of this operation. The author defends a mixed theory of corrective and distributive justice in tort law, using the capability approach of Amartya Sen and Martha Nussbaum. According to this theory compensation is to be understood as the restoration of the autonomy of the victim, that is, of his or her capabilities. Since the capability approach is a theory of social justice, to be safeguarded by public institutions like the courts, this involves a minimal level of protection of the victim. Rethinking the role of justice in tort law opens a whole new range of questions.