Deterrence and Corrective Justice


This Article considers, from the standpoint of corrective justice, Gary Schwartz's suggestion that tort law should be understood through a mixed theory that affirms both corrective justice and deterrence. When corrective justice and deterrence are both treated as determinants of tort norms, such a mixed theory is impossible, given that corrective justice treats the parties relationally and deterrence does not. But if deterrence goes not to the justification for particular norms but to the operation of the ensemble of norms as a system of positive law, a mixed theory becomes possible even for a proponent of corrective justice. Such a theory could maintain its unity through the ordering of its elements in a conceptually sequenced argument. Illustrative of a conceptually sequenced argument is Kant's account of the excuse of necessity. Kant distinguishes between (and sets in their proper conceptual order) the role of the concept of right in determining legal norms and the role of positive law in deterring the violation of those norms. Because Kant provides a philosophical elucidation of corrective justice, the way he incorporates deterrence also applies to contemporary corrective justice theory. To that extent, a proponent of corrective justice can accept a theory that affirms both corrective justice and deterrence.

By uclalaw