This article offers arefutation of the corrective justiceinterpretation of tort law – the view that itis essentially a system of corrective justice. It introduces a distinction between primary andsecondary tort duties and claims that tort lawis best understood as the union of its primaryand secondary duties. It then advances twoindependent criticisms of the correctivejustice interpretation. The article firstargues that primary tort duties have nothingfundamentally to do with corrective justice andthat, if one understands what is meant by``primary tort duties,'' one is (...) compelledto regard this fact as a decisive objection tothe corrective justice interpretation. Second,it argues that, whatever relation thereis between secondary tort duties and correctivejustice, that relation also holds betweencorrective justice and secondary duties ofother legal branches. In sum, the concept ofcorrective justice is neither capable ofunifying tort law nor of demarcating it fromother legal branches.The article also offers a general alternativeinterpretation of tort law. Rather thanbeing essentially corrective, tort law isessentially protective. Under this picture, iftort law has a most important point, it is theprotection of legal subjects and valuablesocial interests from harm. This is theoverarching ambition that unifies primary andsecondary tort duties. It does not, however,demarcate tort law from other legal branches. (shrink)

Abstract:According to Shelly Kagan, “ordinary” or “moderate” moralists must establish the existence of “options.” Kagan considers a “negative” and a “positive” argument, which he regards as the most promising means by which moral moderates might establish their position. He offers objections to both, and he concludes that the moderate position is indefensible. I argue that Kagan fails in his attempt to discredit the negative argument. I also argue that the positive argument is so implausible that Kagan's elaborate criticism of it (...) is unnecessary. The positive argument is interesting nevertheless, because of why it cannot serve the moderate's purposes. (shrink)