Counterfactuals and Corrective Justice: Allan Beever's Rediscovering the Law of Negligence and Bolton v Stone in Context

Abstract

In an important book published in 2007, Allan Beever set out an interpretative theory of the law of negligence based on corrective justice theory. As part of this project, Beever calls for more attention to be paid to legal history to understand the history of how human beings interact. However, Beever rejects 'realist' history as having any role in this project. This paper seeks to take a contextual look at one of the leading cases in Beever's theory - the decision of the House of Lords in Bolton v Stone in 1951 - to demonstrate that the failure to engage with realist history effectively creates a counterfactual history that adds little weight to Beever's theory.