Role of Torts Law in Corrective Justice - Essay Example

? Role of Torts Law in Corrective Justice and Distributive Justice Number and of the ROLE OF TORTS LAWIN CORRECTIVE JUSTICE AND DISTRIBUTIVE JUSTICE Torts law has for a long time been torn between two ends of justice: the corrective end and the distributive end. The corrective end calls upon the law of torts seeks to seeks to contain wrongful acts though the enhancing the moral conceptions of responsibility and agency for the wrongful acts done , so as to ensure there is reparation for the alleged harm. The distributive end seeks to apportion liability and risks so that rewards and burdens are apportioned to partied based on what they deserve, so that individuals may reap their benefits and faults, and bear burdens proportional to their activities. Some scholars like Coleman (1994) have argued that the nature of the law of torts favors the corrective ends, whereas others like Konow (2003) as well as Wolf and Musselman (1990) argues that there is a need for the law of torts to strike a balance between the distributive and the corrective ends of the law. Not withstanding the foregoing controversial debates, the law of torts tends to lean its balance more towards the corrective end than the distributive ends. Tort Law: Basic Features The term “tort” is a word that is derived from Latin word “tortum”, to mean “injustice “or wrong. The law of tort therefore proceeds from recognition of the fact that some acts in society may be unjust and therefore needs to be corrected through the law. According to Coleman (1994), a tort may be defined to mean “a wrongful act that causes injury to a person or property and the law allows for a claim by the injured party to be compensated for damages.” Some of the generic labels that have been associated with torts include “breach of duty” although this is just on of the major concepts in the law of torts. The law of tort has no absolute formulas through which questions are resolved. Both the legal scholars and the judiciary have pointed out emphatically the facts that the law of torts is a complex process that is never mechanically applied nor is it static; rather it often depends on circumstances of the case, and that as time elapses, more and more torts get discovered (Blomqiuist [1990]; Koestler V. Pollard [199]); Patel [200]). The tortseeks to reflect the balance the society seeks to strike between competing values. The facts in the case in question determine the right decision. For instance, automobile drivers are made liable to the injuries that they cause as they carry out their duty but only if the injury results from their fault or negligence. On the other hand, manufactures take the liability of the injuries stemming from their defective products, the reasonable care they might have taken not withstanding. Most individual torts require that fault be shown on the defendant’s part. More often, the extent of the defendant’s fault will form the basis of the liability that the defendant bears to the plaintiff. This is the case with torts such as negligence, defamation, nuisance and trespass. However, within the law of torts there are also cases of strict liability torts where the defendant will not be required to prove fault on the part of the defendant; it will suffice for purposes of tortious remedies against the defendant that the plaintiff suffered damage and that the damage was occasioned by an action or omission of the defendant (strict liability torts).Generally, at common law, the strict liability torts are restricted to activities that are hazardous. There is also Liability for Defective Products Act, 1991 which creates strict liabilities on manufacturers with regard s to health sustained by consumers of their products. The principle function of the law of tort is to establish weather there is an offence and if there is to come up with a remedy. At common law, damages are the most widespread remedy. In such a judgment, the defendant is normally required to offer financial compensation to the plaintiff. Basically, when the compensatory damages are awarded, the plaintiff’s legally cognizable cost shifts to the defendant. However, the equitable remedy of injunction is also vital. The injunction is the court order protecting the defendant from being injured or from invasion of the defendant’s property rights. Tort only demands compensation in circumstances where the loss stems from a wrong that was committed and not any losses. Distinction between Distributive and Corrective Justice Corrective justice is synonymous to retributive justice. This is a case where by the injured party has incurred a loss resulting from the mistake of the injurer or his (the injurer’s) invasion of the rights of the victim and in which the injurer is forced to take the resulting liabilities. On the other hand, the genesis of justice comes when the duties owed to the victim are considered not taking into account whether the duties had a direct contribution to the loss or not. Coleman acknowledges that in cases where the legal or social practices are in place, either distributive or no-fault compensation system is possible. In conclusion, Coleman argues that either of the two principles (corrective justice or no-fault system) can be employed to compensate the injured party in tort cases, but not combining the two. The proponents of retribution argue that if and when one makes a fault, it is only fair that the fault is responded to, besides responding to the individual in question, rather than taking a response which is aimed at creating the overall welfare. In their opinion, doing otherwise would amount to disrespecting the person as an individual human being. In case there are victims to the fault then they too would have been disrespected. Retributivism puts more weight on paying back (retribution) and not capitalizing on welfare. It sees justice in terms of desert, similar to the theory of distributive justice which focuses on giving every person what they deserve. It holds that all people on the wrong and only those who are on the wrong deserve to be punished. The opponents on the other side see retributivism as just but revenge. However, there is a clear cut line between revenge and retribution. While the former is personal, has no scale limit and often not correct, the latter is corrective, is limited in scale and it is rather impartial. Distributive refers to the set of principles that illuminate what is required by justice when some good or bad is spread among people. Generally, distributive justice requires that everybody is given his or her due. However it does not give a clear procedure of determining what is due to a person. It is commonly based on deserts, needs and entitlement. These require further elaborations and are quit open to interpretations. There are three principles that bring about the disputes about the distributive justice. To begin with is the context in which one is ready to apply the distributive justice. The second principal source of dispute sets in if there is the requirement of a measure of desert, entitlement or need. Finally finding the best response to the number of possible interpretations of deserts, needs and entitlement may be difficult. Tort Law: Distributive vs. Corrective Justice From the foregoing discussions, it has been shown that the torts law is principally concerned with the question as to what wrong was done by the defendant and then grant the remedy most suitable to rectify the wrong. Corrective justice is particularly dominant in cases of negligence, where a defendant negligently imposes risk on the claimant. In such cases, the wrongdoer bears liability for (a) not having respected the security of the victim((Palsgraf v. Long Island [N.Y. 1928]). , and (2) causing harm or injury to the defendant (Keeton, 1959). In awarding damages, these will be taken into account, and the first factor aforementioned explains the basis of punitive damages. The duty being imposed on the wrongdoer to pay damages commensurate to harm caused thus operates as a corrective justice, since the aim is to repair the harm negligently made. Thus, by extension, it rectifies the harm that was inflicted wrongly. The imposition of a negligent risk expresses inadequate. The law of torts therefore chiefly addresses matters of corrective justice. It seeks to transfer the liability or any harmful effect that is occasioned by the defendant from the plaintiff, who is unjustly bearing the harm or damage, to the defendant who caused the damage. As already pointed out, this is basically done through payment of damages by the defendant upon institution of a civil suit by the claimant. However, the corrective role of the law of torts is not absolute. In the cause of awarding damages, the judiciary has got to take into account other factors such as public policy and public interest, so that the plaintiff, despite having suffered damage may end up not obtaining full remedy, or missing it altogether. This has been very common with tort claims against public authorities where the jurisprudence set by court has always tended to absolve the public authorities from bearing a duty of care to the claimants, where the claimants suffer damage from their omissions or actions. Whereas majority of the torts imposes liability directly on the person who has actually caused the injury, there are a few occasions when liability may be imposed on another person other than the immediate causer of the injury. This is the case with vicarious liabilities held by the employers for torts committed by their employees in the course of their duty (Dickinson v. Edwards, 105 Wash. 2d 457, 716 P.2d 814 [1986]). The basis of imposing the liability on the third party often stem from a contractual relationship between the immediate wrongdoer and the third party. The rule is precisely captured in Kuehn v. White (1979) where the supreme court pointed : A master is responsible for the servant's acts under the doctrine of respondeat superior when the servant acts within the scope of his or her employment and in furtherance of the master's business. Where a servant steps aside from the master's business in order to effect some purpose of his own, the master is not liable. This rule was reiterated by the court in Kyreacos v. Smith, 89 Wash (1977) and also reflected in the Supreme Court decisions in Westerland v. Argonaut Grill (1936). Another good example is the liability held by the insurance companies for the negligent and other tortious acts of their clients. In these cases, the torts law seeks to ensure that the harm is distributed across the society so that other members of the society (such as employers and underwriters) bear part of the wrongdoer’s cost. The effect is that the immediate wrong doer will be place in a position where he or she passes the cost which he would have otherwise borne solely on other society members, thus offsetting the costs. Conclusion The tort law, in a bid to apportion liability on liable defendants is torn between distributive and corrective ends of justice. The very nature of torts law- that it seeks to redress “a wrongful act that causes injury to a person or property in which the law allows for a claim by the injured party to be compensated …” (Coleman, 1994) – suggests that it should tilt in favor of corrective justice. In this way, the inured party will be at a position of being restored to his or her position before the injury occurred. The fact the damages are the major remedies in torts, and which are often calculated based on the extent of damages suffered points to the extensive considerations paid the corrective justice. On the other hand, there are a few circumstances when the laws of torts incorporate distributive justice as with the cases involving vicarious liability. In these cases, the liability is apportioned to the employer, who is a third party; thereby distributing across the society (represented by the employer) the wrongdoer’s cost. References Coleman, J. (1994). Tort Liability and the Limits of Corrective Justice. Cambridge, UK: Cambridge University Press. Blomquist .(1990). "New Torts": A Critical History, Taxonomy, and Appraisal, 95 DICK. Law Review Dickinson v. Edwards, 105 Wash. 2d457, 716 P.2d 814 (1986). Honderich, T. (1969). Punishment: The supposed justifications. London: Hutchinson & Co. Keeton, R. E. (1959).Conditional Fault in the Law of Torts. Hrvard Law Review. (72). 401-412. Koestler v. Pollard, 162 Wis. 2d 797, 802, 471 N.W.2d 7 (1991) Konow, J. 2003. Which Is the Fairest One of All? A Positive Analysis of Justice Theories. Journal of Economic Literature .41 ( 4), 1188. Kyreacos v. Smith, 89 Wash. 2d 425,429, 572 P.2d 723 (1977). Kuehn v. White, 24 Wash. App. 274, 277, 600 P.2d 679 (1979) Patel, N. A. (2003). The State's Perpetual Protection of Adultery: Examining Koestler V. Pollard and Wisconsin's Faded Adultery Torts. 2003 Wisconsin Law Review 1013. Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 101 (N.Y. 1928). Westerland v. Argonaut Grill, 185 Wash. 411, 55 P.2d 819 (1936). Wolf, M.P. and Musselman, L. (1990). Voicing Ideas, . Fresno, CA: California State University Press. Read More