CORRECTIVE JUSTICE AND TORT LAW: THE SCHOLASTIC ORIGINS OF CIVIL LIABILITY

Abstract

Theoretical contributions on tort law are still conditioned by artificial discussions as the dualism “negligence/strict liability”, the conceptual separation of contractual and non-contractual obligations and the splitting off liability by public authorities. These discussions respond to a view of Law which, starting from scholastic nominalism, has considered civil liability as a sanction application to the violation of a legislative mandate. This paper aims at showing that this imperative view is the result of an intellectual manipulation which masks the true origin of tort law —which is a synthesis of Roman Law and aristothelian ethics made in the Modern Era by the Thomist-inspired late scholastic perspective—. This theoretical ground has been recovered recently with the adoption on the doctrinal explanation of tort law following a vertebral notion of corrective justice.