Counterfactuals and Corrective Justice: Legal History and Allan Beever’s 'Rediscovering the Law of Negligence'

Abstract

In an important book published in 2007, 'Reconstructing the Law of Negligence', Allan Beever set out an interpretative theory of the law of negligence based on corrective justice theory. As part of this project, Beever called for more attention to be paid to legal history but denied that 'realist' history had any role in this project. This article considers two cases studies of subjects important in Beever's theory - the decision of the House of Lords in Bolton v Stone in 1951 and the judgments of Benjamin Cardozo - and evaluates Beever's treatment of these subjects by reference to contemporary materials to demonstrate that the failure to engage with realist history effectively creates a counterfactual history that adds little weight to Beever's theory.