The House that Dr Beever Built: Corrective Justice, Principle and the Law of Negligence
| Date | 01 July 2008 |
| DOI | http://doi.org/10.1111/j.1468-2230.2008.00709.x |
| Published date | 01 July 2008 |
| Author | Christian Witting |
REVIEWARTICLE
The House that Dr Beever Built: Corrective Justice,
Principle and the Law of Negligence
ChristianWitting
n
Allan Bee ver, Rediscoveringthe Law of Negligence, Oxford: Hart Publishing,20 07,
530 pp, hb d50.00.
INTRODUCTION
[I]f I agree to build you a house,then (unless I disclaim) I owe a duty toyou to build
the house well, but that duty cannot lie in the law of negligence because there is no
such duty there . . . (302).
If the law of negligence is indeed undesirable,the nwe can of course replace it with
statute. But weshould not ignore it . . . The law of negligence has a structure, and it
is our primary role as academics to discover what that structure is. That is the ¢rst,
though by no means the only, task of legal analysis (515).
Private law has been the subject of several signi¢cant studies over recent years,
a pervasive strain of which has sought to explain it as an emanation of corrective
justice. Corrective justice is concerned with the circumstances in which
a wronged party is able to obtain recompe nse or reparation from a w rongdoer.
1
Ernest Weinrib’sThe Idea of Private Law commonly is seen as setting out in its
‘purest’ form the corrective justice view of private law.
2
Weinrib purports to
explore tort law (in particu lar) fromw ithin.
3
He sees it as a self-contained, coher-
ent
4
mode of legal ordering in that‘the relationship of doerand su¡erer [of harm]
has latent within it an inwardly articulated schema of justi¢cation whose compo-
n
Melbourne LawSchool. Claims made in this essay about the duty of care and the roleof policy were
tested i n the Torts Section of the Society of Legal Scholars Conference, Durham University, 12 Sep-
tember 2007.I thank the participantsfor their feedback. Thanks to John Murphyand Andrew Robert-
son for helpful comments upon ane arlierdraft and to Donal Nolan for discussions had whilst he was
visiting Melbourne. Any errors and omissions are my own.
1 See M. Stone,‘On the Idea of Private Law’ (1996)IX Canadian Journal of Law andJurisprudence 235,
253.
2 ‘The purist holds that whatever does not ¢t the conceptualor normative pattern of the coreof the
tort system falls outside that system and so is not properly the concern of a theory of torts’:
G. Postema, ‘Introduction: Search for an ExplanatoryTheory of Torts’ in G. Postema (ed), Philo-
sophyand the Lawof Torts (Cambridge: CUP, 2001), 15.Weinrib is a self-professed ‘purist’: E.Wein-
rib,The Ideaof PrivateLaw (Cambridge, Mass.: HarvardUP,1995), 13.
3 Although the compendious term‘tort law’is used in this essay,th is does notsign ifydisagreement
with the view that the law comprises multiple torts: see R. Stevens,Torts and Rights (Oxford:
OUP,20 07),2.
4 Coherence here entails ‘the existence of some sort of internal connection between the various
features that cohere’:Weinrib, n 2 above, 30.
r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2008) 71 (4) 621^ 640
nents complement one another’.
5
Key features are the bipolarity of the relation-
ship between the doer and su¡erer of harm
6
and the place of Kanti an right in
ensuring‘the interaction of the doer and su¡erer on terms thatrespect their moral
status as self-determining agents’.
7
Mesmerisingi n its lucidity,Weinrib’s account of the tort relationship highlights
the importance of the structure of thetort suit and demonstrates compellingly the
limited capacity of tort law simultaneouslyto achieve goals such as compensation
and deterrence.
8
But Weinrib has been taken to task for presenting no substantive
theoryof wrongdoing.
9
‘The notionof correlativity and, in particular,the ideas of
notional equality and the abstract conception of agents on which correlativity
depends, obviously impede the development of such an account’.
10
Likewise,
there is a strong view that he has failed to engage satisfactorily with the statutes
and cases that comprise tort law.
11
His explanation of negligence concepts such as
duty, causation and ‘proximate cause’is on the insubstantial side.
12
In Rediscovering the Law of Negligence (‘RLN ’),Dr Allan Beever,a former student
of Weinrib, seeks to develop further the corrective justice understanding of the
most important of the modern-day torts.The book is said to o¡er:
a systematic and theoretical exploration of the law of negligence. Its aim is to re-
establish the notion that thinking about the law ought to and can proceed on the
basis of principle. As such, it is opposed to the prevalent modern view that the var-
ious aspects of the law are and must be based on individual policy decisions . . . The
book argues that the law of negligence is best understood in terms of a relatively
small set of principles enunciated in a small number of leading cases. It further
argues that these principles are themselves best seen in terms of an aspect of moral-
ity called corrective justice . . . (i).
5ibid,207.
6ibid,74.
7ibid,82.
8ibid, 38^43.
9 Se eW. Lucy,Philosophyof PrivateLaw (Oxford:OUP,2007), 293.Lucy observes: ‘Ifcorrective jus-
tice has nothing to s ayabout wrongs a nd wrongdoing that is independe nt of whatlegal doctrine
tells us about [the institutions and practices of tort law], then its normative power seems very
limited’: ibid,294. See also P.Cane, ‘Corrective Justice and Correlativityin Private Law’ (1996) 16
OJLS 471,479; J.Coleman, Risks andWrongs (Oxford: OUP,1992),329^330.
10 Lucy, n 9 above, 299.
11 ‘The privatelaw described byWeinrib . . . corresponds to no system of privatelaw which has ever
existed in the se nse of being used, in a concrete social context, as the basis for dispute resolution
and adjudication’: S. Deakin,‘The Evolutionof TortLaw’ (1999)19OJLS 537,544. See also Lucy,n
9 above,ch 9. This is a result of the intention by Weinrib to deal with the private lawat the highest
level of abstraction: P. Cane,‘The Anatomy of Private Law Theory: A 25th Anniversary Essay’
(2005) 25 OJLS 203, 206. Itis a general criticism of corrective justice theories: J. Goldberg,‘Twen-
tieth-CenturyTortTheory’ (2003) 91Geo LJ 513, 575.
12 When cons idering the duty of care in TheIdea of PrivateLaw,Weinribfocuses solely upon foresee-
ability and neglects the di¡erent types of protected interest, proximity and policy-based reason-
ing. These omissions are amended, to a degree, in E.Weinrib,‘The Disintegration of Duty’ in
S Madden (ed), ExploringTort Law (Cambridge:CUP, 2005), ch. 5.The brief discussion inThe Idea
ofPrivateLaw of other doctrines is suspect, especially the attempt to explain whyvicarious liability
in not truly strict liability:Weinrib, n 2 above, 185^187.See critici sm in Cane, n 9 above, 485^487.
The House that Dr Beever Built
622 r2008 The Author. Journal Compilation r2008 The Modern LawReview Limited.
(2008) 71(4) 621^640
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