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235, at 253. , 258. , 259. correlativity and personality 31 misplaced, Stone points out, because no external validation of corrective justice is called for. One’s interest in corrective justice arises only when one has accepted the notion that tort law expresses genuine reasons; corrective justice then brings one to a better understanding of what it is that one has accepted. ”22 However, this very circularity might engender the baseless but unnerving suspicion that one has failed to make contact with genuine matters of reason.
The reason that rights matter for private law lies elsewhere. The insignificance of welfare as such is also evident on the duty side. Tort law, for instance, is a regime of negative duties that mandate non-interference with the rights to which they are correlative. If the rights themselves represented aspects of welfare, one would expect that at least certain aspects (human life itself, for instance) would be so important that, at least in an extreme circumstance, persons would be under a positive duty to promote or preserve them.
11 Peter Benson, “The Basis for Excluding Liability for Economic Loss in Tort Law,” in Philosophical Foundations of Tort Law, ed. David Owen (1995), 427 (analyzing tort law’s reluctance to recognize economic loss as a basis of liability in the absence of an infringement of a right). correlativity and personality 23 The upshot of these considerations is that welfare does not lie at the heart of the abstraction that might capture the organizing idea implicit in the rights and duties of private law.