Distributive and Corrective Justice in the Tort Law of Accidents

Tort scholarship on the law of negligence has long been torn between two competing conceptions. One of these conceptions—the justice conception—holds that negligence law is (and should be) an articulation of our ordinary moral conceptions of agency and responsibility, carelessness and wrongdoing, harm and reparation. The other conception—the economic conception—holds that the law of negligence embodies an appropriate public morality, but it takes that morality to be at best a distant echo of the morality of responsibility and reparation found in ordinary life. The law of accidents, on this conception, can and should promote human welfare, but it should do so not by elaborating and reconstructing ordinary moral thinking but by rigorously pursuing a suitably scientific conception of that welfare. Where ordinary morality links responsibility for harm done with the duty to repair that harm,1 for example, the scientific morality of the economic analysis of torts takes the two to be wholly separable and properly separated. Justice conceptions acknowledge a prima facie link