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fbtwitterlinkedinvimeoflicker grey 14rssslideshare1
Languages: English
Types: Doctoral thesis
Subjects: K1
This thesis builds a normative theory of tort law by exploring the philosophical foundations\ud of harm, actionability and corrective duties. In chapters 1 and 2 I survey previous literature\ud in tort theory, arguing that normative questions have generally been neglected in favour of\ud interpretive ones. I also defend the case-based methodology, familiar to moral philosophers,\ud which I employ throughout. In chapter 3 I investigate the metaphysics of harm, making two\ud claims: first, we should define harm as setback to wellbeing, and second, we should accept a\ud complex version of the counterfactual view. In chapter 4 I distinguish between two\ud fundamental forms of corrective action – negating and counterbalancing – and argue that\ud they have important implications for tort theory. In chapter 5 I inquire whether a victim’s\ud false beliefs about her wellbeing should have any impact on her claim to compensation\ud against a wrongdoer. Chapter 6 offers a critique of George Fletcher’s theory of reciprocity as\ud a moral basis for corrective duties. Having rejected it, I propose a set of alternative\ud principles that more plausibly explains our judgement about whether an injurer ought to\ud compensate her victim. Finally, chapter 7 discusses the relationship between corrective and\ud distributive justice. I argue that, contrary to the claims of some theorists, corrective justice\ud cannot be insulated from distributive justice.
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