Abstract
This paper begins with the introduction of two competing schools in tort or private law. One school claims that tort or private law is to achieve efficient resource allocation or wealth maximization. The other school follows the bipolar structure of corrective justice with the assistance of the Kantian theory. While each side is very strong and elegant, neither is able to claim the totality of tort or private law. Naturally, scholarship reconciling the two schools is urgently needed. Although there is a thin body of literature, trying to rationalize or reconcile the two competing schools, the outcome has been far from satisfactory so far. This paper tries to fill an important gap in the literature by developing the communitarian version of Kantian right while taking into consideration of efficient resource allocation within the bipolar structure of corrective justice. After articulating such a theory, the article has made an effort in searching empirical evidence from US judicial practice to test whether the communitarian version of Kantian right is supported by evidence. The study then examines the success or failure of judicial analyses when the utilization of the communitarian version of Kantian right respects the bipolar structure of corrective justice and keeps an appropriate balance on the interaction of the relationship between private parties in private law and the relationship between the government and individuals under public law. The idea is on the horizon, realization of the idea, however, remains a daunting task.
Details
Presentation Type
Paper Presentation in a Themed Session
Theme
2023 Special Focus: Agency in an Era of Displacement and Social Change
KEYWORDS
Corrective Justice, Efficient Resource Allocation, Private Law
