Title: The Relationship between the Principle of Efficiency and the Principle of Corrective Justice
Abstract: The purpose of this article was to explain the central point of disagreement between Coleman’s theory of corrective justice and the economic analysis of law to the Russian academic legal audience.
Both theories explain the essential features our private law, particularly tort law. According to the economic theory of law, it is the costs and deterrence effects that norms impose. According to the theory of corrective justice, it is the principle of corrective justice. Some economists of law have argued that the principle of corrective justice could be viewed as an instrument of the principle of efficiency. If it is an instrument of the principle of efficiency, then it cannot explain our legal practices as it purports to do. I argue that since the principle of corrective justice requires us to repair the wrongful losses that we cause with our conduct, then it does not function as an instrument for achieving greater efficiency but rather constrains us in the pursuit of the goal of efficiency. Accordingly, the principle of corrective justice and the principle of efficiency operate in parallel with each other and provide at least competing explanations for our law. Moreover, we have strong reasons to believe that the principle of corrective justice explains a large area of our law, because the central features of our current legal practice in private law, and particularly tort law, give expression to the principle of corrective justice.
Publication Year: 2011
Publication Date: 2011-01-01
Language: en
Type: article
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