Nuisance Law and Notions of Corrective, Distributive and Retributive Justice - Essay Example

? Does nuisance law reflect well notions of corrective, distributive and retributive justice? No: Does nuisance law reflect well notions of corrective, distributive and retributive justice? Nuisance law Nuisance is regarded under the category of law of tort. It reflects the causes of wrong doing, exasperation or damage. In broader terms, nuisance exists in two forms that are public and private. Sir J. F. Stephen’s definition of nuisance is regarded as valid and is explained as: "An act not warranted by law, or an omission to discharge a legal duty, which act or omission obstructs or causes inconvenience or damage to the public in the exercise of rights common to all of His Majesty's subjects".1 The word nuisance indicates that the "rights of enjoyment" of people are being usurped to such an extent that a tort is being attracted. In a more sophisticated view, nuisance in accordance with English law can generally be separated into two kinds of torts a) private nuisance, where the dealings of a respondent are becoming a cause to obstruct the usage of land or its bounties to be enjoyed unreasonably b) public nuisance where the respondent’s doings are becoming a cause of inconvenience to the life of Her Majesty’s subjects. In the eyes of the law of the land, the public nuisance is also considered as an offense. The tort law allows the claimant to enjoy their right to provide evidence that the respondent’s doings are causing obstruction unreasonably. In fewer situations, the intention of the respondent should be taken into consideration. The question at this point of time comes in the minds of general public that what is the difference between the public nuisance and the private nuisance. It is very much clear in the sense that private nuisance does not allow a claimant to lodge a claim against any personal harm done to the petitioner by the defendant whereas in the public nuisance, lodgment of claim against any injury is the right of the claimant2. Concept of Justice In the broader spectrum of law, Justice is driven from the concept of moral righteousness, which is based on five ingredients a) moral values b) reasonableness c) natural decree d) religion and e) impartiality. It can be explained in other words as an act of provision of unbiased and reasonable decision3. We may find in the books of laws more comprehensive theories on the principals of justice, which by all means are important factors to provide justice at the doorstep of a victim and aim at to create harmony and brotherhood in the civilized society. According to John Rawls statement, “Justice is the first virtue of social institutions, as truth is of systems of thought”4. Branches of Justice It ensures justice is not done but seems to be done. Introducing punishment for the violators against their crimes plays an important role in reducing the crime rate in the society. Until and unless exemplary punishment is given to the criminals, no society can claim enforcement of law and order situation in the country. Under the mentioned scenario, the justice can be segregated into following segments: Corrective Justice Corrective justice at first integrates the positions of the petitioner and the respondent. The injustice done by the respondent and suffered by the petitioner at the hands of defendant forms a solo juridical event in which each stakeholder participates in the presence of the other. In accordance with corrective justice, liability normally relates to either of the participants, which are in isolation from the other. Take the example, of the defendant, which is being subject to economic benefits or it is possible to ensure compensation to the petitioner’s loss. However, there is another alternate for stakeholders to settle their disputes out side the court purview5. Secondly, corrective justice provides an opportunity of ratification both for the petitioner and the defendant. The responsibility of the court is to examine the case minutely before announcing the judgment for the satisfaction of both the parties. The injustice remains the decisive factor in the litigant’s relationship. The remedial measures may heal up the tense relationship of the stakeholders involved litigation against each other6. Corrective justice only draws the conclusion, which takes for granted. Peter Birks while commenting on the graphic sentiment remarked that remedy is “the same thing as the right, looked at from the other end.”7 Retributive Justice Retributive justice provides response to crime provided it is based on tangible verification that enables regulatory authority to execute punishment, which is considered morally correct and justifiable. The law of retaliation is a martial expression, which is used for retributive justice. The retributive justice believes in an eye for an eye, tooth for a tooth, slap for a slap, lash for a lash and life for a life8. Distributive Justice Distributive justice relates to proper allocation of things in terms of wealth, power, reward and respect amongst different shades of people of the society9. Restorative Justice Restorative justice does not deal with vengeance or chastisement in which, the defendant is allowed to pass his punishment in prison and again become a part of society by reintegration. According to the restorative justice, the offender gets the chance to understand the extent of his offence on the victim and the victim and the offender are somewhat provided a chance to be together10. Case law of Corrective Justice Peter Birks uses the term unjust enrichment to give examples about corrective justice. He explains that sometimes, mistakenly payments are made, which are not due and as a result, there can be unjust enrichment. In such a case, the money giver has the right to claim his given amount in order to recover his mistake. The defendant in this case has to pay back the money that he has taken mistakenly from the claimant. In no way, the defendant can keep the money, as he is not authoritative over it. However, only that money is to be paid back that is taken without any fines or extra dues11. Here we may refer to the case of Kelly v Solari, where the claimant overpaid and the reason for mistakenly overpaying was just not remembering12. For the sake of justification, the claimant should pay the defendant’s mistaken money. In that case, there should be no obligation on the part of defendant to return the money to the claimant. At the same time, the defendant has no compulsion to give reasons why he is duty bound to return the money back to its claimant. Therefore, it is clear that the defendant did nothing wrong to the claimant13. Now the question is why mistaken payment case should be the core case of restitution for mistaken transfer. Under the mentioned background, the elimination of contractual remedy and the available tort remedy could take us to the second reason. Now it is clear why the payment by mistake should be considered as the core case of transfer by mistake.14 Case Law of Distributive Justice There cannot be two opinions about that everyone is subject to the law of the land. However, if it does not serve the purpose the legislator may reverse the law in vogue amended legislation. There are numerous examples where the court of competent jurisdiction declared the law ultra virus if found repugnant to the law and the constitution for which legislation had to make amendments to meet the requirement. These include Burmah Oil v Lord Advocate.  The parliament passed the War Damage Act 1965 in order to prevent others to follow the suit of claiming compensation. In Congreve v Home Office the Home Secretary tried to discourage purchase of TV licenses to restrict the rise in cost of the licenses. In the case of Council of Civil Service Unions v Minister for the Civil Service, the government banned trade union activities at a listening station.  In R v Home Secretary Fire Brigades Union, the Compensation Scheme for criminal injuries was amended by using Royal discretion instead of pending statutory power, hence, ruled unlawful by the competent court of law15. The rules applicable to all persons irrespective of cast and creed and no one should be above the law. Therefore, all the people should be treated at par. The law of the land should be implemented without fear and favor, prejudice, bias or fear from others particularly those who are influential. The identified task can only be accomplished by an independent and impartial judiciary16. Case Law of Retributive Justice It is essential as per the requirement of natural justice to act fairly and impartially. In the case of Baker v. Canada, the Apex court of Canada drawn a list of non-exhaustive items that would influence the duty of fairness, the importance of the decision against the person who challenges it, the person's legitimate expectations, and the chosen procedure made by the decision-maker. Earlier, Supreme Court held that public authorities who have the authority to take decision of legislative and general in nature do not require a duty to act impartially that makes decisions of a legislative and general nature do not have a duty to act fairly.  In addition to that, a duty to act fairly solely depends on the nature of relationship between the holder of public office and the individual. No duty is defined where the relationship of master and servant is existed or where an individual is the holder of public office enjoying the pleasure of the authority17.  By all definitions of law in question, a person is not allowed the case to decide in which he may be regarded as biased. This principle supports the basic concept of impartiality which is applicable to courts of law, special tribunals, arbitrators and those who are enjoying the judicial duty. A public office holder is duty bound to act according to law whenever he makes the decision that has impact on the rights and interest of the people. The basis of impartiality is required to maintain public confidence in the legal system of a country. Otherwise, it mars the whole legal system if it fails to meet the confidence of general masses. It was observed by the Lord judge Denning in the case of  Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon  “Justice must be rooted in confidences and confidence is destroyed when right-minded people go away thinking: “The Judge was biased’”18. The Lord Chief Justice of England and Wales was of the view that “It is not merely of some importance, but is of fundamental importance that justice should not be done, but should manifestly and undoubtedly be seen to be done”19. Bibliography Baker v. Canada (Ministry of Citizenship and Immigration), [1999] 2 S.C.R. 817. Bermingham, V. and Brennan, C. 2008. Tort Law. Oxford: Oxford University Press. Birks, P. 2003. Unjust Enrichment. Oxford: Oxford University Press. Kelly v Solari (1841) 9 M&W 54. Konow, James. 2003. "Which Is the Fairest One of All? A Positive Analysis of Justice Theories." Journal of Economic Literature 41, no. 4: page 1188. Lee, M. 2003. "Law Quarterly Review". Law Quarterly Review 119 (2). Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon [1968] EWCA Civ 5. Ormerod, D. 2011. Blackstone’s Criminal Practice 2012. Oxford: Oxford University Press. Rawls, J. 1999. A Theory of Justice. Oxford: Oxford University Press. Schmidtz, D. 2006. Elements of Justice. New York: Columbia University Press. Sixth Form Law. 2008. Justice: The Rule of Law.[Online]. Available at: [Accessed 6 August 2012]. Virgo, G. 2006. The Principles of the Law of Restitution. 2nd ed. Oxford: Oxford University Press. Weinrib, E. J. 2011. Civil Recourse and Corrective Justice. Florida State University Law Review 39. pp. 273 – 297. Read More