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4 - The Deontological and Religious Elements of Maimonides’ Tort Theory

Published online by Cambridge University Press:  10 August 2020

Yuval Sinai
Affiliation:
Orot Israel College
Benjamin Shmueli
Affiliation:
Bar-Ilan University, Israel
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Summary

We address the deontological, philosophical, pedagogical and religious foundations of Maimonides’ tort theory. Maimonides regards removing the wrong as an important aim of tort law, alongside other aims, which are directed at the meta-aim of the “welfare of the body.” We looked at the similarities and the differences between this aim and the theories of prominent modern corrective justice theories, such as those presented by Weinrib. Maimonides emphasizes educational, punitive, religious (prohibition against causing damage) and social aspects that shape this aim of “removing the wrong” in particular, and tort law in general. Therefore, the application of tort law and the conception of corrective justice is wider according to Maimonides’ approach than according to narrow conceptions of corrective justice that place the emphasis on the correlative framework of the damager/victim. Tort law, according to Maimonides, is designed not only to restore the status quo ante, but to repair the qualities of the damager, to shape him as a person who contributes to a society which dutifully observes the religious precepts and is careful not to cause damage to the property and to the body of another. Moreover, Maimonides incorporates distributive considerations into his theory, particularly on the subject of compensation.

Type
Chapter
Information
Maimonides and Contemporary Tort Theory
Law, Religion, Economics, and Morality
, pp. 138 - 221
Publisher: Cambridge University Press
Print publication year: 2020

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