Economic Considerations, and not Justice, should be the Basis of Tort Law - Essay Example

Task: Economic Considerations, and not Justice, should be the Basis of Tort Law The main intention of law is to protect all people from all unethical and illegal activities. Laws ensure the less unfortunate in the society get justice while at the same time compensating for any form of damages. Considering the diversity of the society and varied forms of offenses, various types of laws exists to govern speckled fields. These include civil law and common law, which deal with varied relationships between people as well as the involvement with the environment. A tort is a common law that deals with resultant interactions between people. It is a civil wrong that mainly ensure the behaviors of an individual does not affect the well-being of another individual. A tort may not encompass an illegal activity, but it concentrates on the harm or loss an individual gets because of another individual action. It, therefore, helps people maintain their previous positions and status they enjoyed before the occurrence of the tort act. In a tort law, the tortfeasor is liable to reinstate the breach of an individual natural position through compensation mainly by monetary terms1. Various debates have prevailed on the intentions of tort law whether to restore justice or ensures people gain previous economic conditions. This is because tort suits make victims transfer problems to other people gaining previous positions while at the same time enduring justice. In as much as torts act as a form of justice, it basis should be economic considerations as justice remain relative through diverse societies. As opposed to common law, this guarantees punishment for the offender upon approval of offense; torts focus on judgment of liability. Concurrently, liability gets paid through economic means that cover compensatory damages to relieve the plaintiff. It is also significant to note that tort does not make judgments based on claims as opposed to criminal laws, which allow claims with support of evidence2. This, therefore, proves torts to be focusing on economic rejuvenation rather than ensuring justice for the offended parties. In an art, shell the argument attempt to reveal the intention of tarts laws, whether to ensure economic fairness of justice. Notably the economic discourse is coming into the forefront of tort law. As a result, many scholars have done proficient research on the arena to establish and gather evidence of the same. From the past, torts remain confused with the aspect of justice while, in real terms, they help restore economic lose suffered by the offended victims. They, therefore, are consequential economic loss experiences because of negligence causing a physical injury3. Coincidentally, confusion regarding tort based on justice rather than economic loss also arises due to strict liability accorded to torts. It, however, is essential to note that a difference regarding the economic nature of torts arises due to the strict liability characterized by tort laws. Consequently, torts are not diffusible by excuse or ordinary prudence a factor that approves torts to be focusing on economic justification. Therefore, in as much as torts act as a form of justice the main reason existing behind the action of torts remains economic reactivation4. Various theories can explain the reason why torts consider economic perspectives rather that justice. Deterrence theory, for instance, works on the basis that, for every action, there is equal and opposite reaction. Judging by the principles, deterrence theory ensures people who commit varied offenses remain responsible for their action through limiting future similar actions. From the perspective of this theory, torts subject people to reimbursement of the offended not to ensure justice, but ensure economic stability of the affected5. Consider a person affected by the actions a surrounding industry, which pollutes the immediate environments spreading diseases. The industry is responsible for spreading of diseases, therefore, is responsible for providing treatment while also providing control mechanisms. When such an action gets taken against the industry, its management will limit the occurrence of the same problem in the future hence deterrence. From this example, the person affected should be provided with the right medication and his environments brought back to the original composition. This is an economic aspect of tort where justice gets given a second priority. Consequently, deterrence also act in indirect phenomenon where individuals get punished to deter others from committing the same offence. For instance, the punishments do not concentrate on behaviors change, but rather deviance by others on the same punishment. This is s rational choice theory of deterrence, which aims at ensuring economic stability, as opposed to other laws, which concentrates on justice before considering economic re-instatement. According to Cesare Beccaria torts aim as incapacitation through rehabilitation of the affected rather than retrieving his ability to continue with normal activities6. This is the case in criminal law where law offenders get jailed for a given period as a form of correction for the illegal activity committed. This is opposite to torts, which ensure compensation of affected as a form of punishment. According to Jeremy Bentham, a law expert deterrence a theory of torts avoids torture and death for the tortfeasor as a form of compensation. In the contemporary society, any offense can only be subjected to torture or death as a form of punishment, tort does not work based on these principles a factor that disqualifies torts to be from other laws. From this perspective, torts remain economic oriented aimed at pursuing responsibility of the defendants towards their actions. Through a series of research, it has been established that accelerating the nature of punishments does not have advance effects of offenders. On the other hand, research has also proven showing certainty for any offense to the leading deterrent of crimes. For instance, when a person fears the shortcoming of committing a given offence he attempts to evade the offence. The same person will be motivated to commit the same offence if punishment gets increased. For instance, if a robbery with violence has the same punishment as robbery without violence, people will often attempt to commit absolute robberies. However, if punishments for the same robbery gets increased robbers advance in robbing clearing evidence to evade being caught. This, therefore, proves tort offences to be related to economic variations a factor that invites decisions regarding torts to be based of economic considerations. Consider a case of deformation where an individual’s name get drugged into an irrelevant situation. Normally people get paid for such suite after calculation of the estimated economic loss. If, for instance, the person affected is a chief executive officer of a given organization, the economic loss gets calculated across the organization as well as losses, which the company might incur because of the act committed. This acts as a form of deterrence, where other people remain discouraged from committing such acts. This, therefore, proves that focusing on justice as a form of compensating there affected is a mere assumption, which leaves affected in worse conditions. It is from this regards that torts should be focused on the economic loss and condition of the affected to achieve justice. It is essential to note that focusing on economic conditions does not concentrate on exploiting the tortfeasor rather; it is economic justice that apart from restoring economic stability, it also guarantees’ justice for the affected. According to deterrence theory, achieving justice of tortious offences through imparting severe punishments does not have effect. Consequently, the affected people have limited time of regaining the loss they incurred because of actions from the tortfeasor. This, therefore, proves that fact that tort laws should concentrate on economic conditions as this ensures people get justice within the shortest time possible. This is according to a study by Canadian Criminologist Paul Gendreau who did a study on 50 different offence cases. This was to determine the effect of concentrating on justice rather than economic considerations while ensuring equality at the same time. According to his study, people should not be subjected to punishments as a form of justice. This is because concentrating on justice allows offenders to enjoy freedom of recidivism rather that paying for their offences. From this perspective, justice gets achieved through taking economic considerations into note while making judgments. This ensure the offended and the offenders maintain equality while at the same time the economic stability. Consequently, longer sentencing because of a tort offence does not invite economic sustainability but rather economic depreciation7. Apart from the theory of deterrence, corrective justice also attempts to enhance tort law as bound to economic considerations rather than justice. According to Oliver Holmes, tort laws are form of moral phraseology, which focus on compensation, spreading the losses upon the parties involved and ensuring economic efficiency8. The overall results achieved from tort laws must be desirable to all parties. It is in regards that balancing tensions remain necessary to maintain the incompatible normative impulse. Consequently, t he theory of corrective justice the jurisdiction any tort law must take. This is in the form of liability reflected in any case between plaintiff and defendant. While giving a legal expression in a case involving a tort law, fairness is just a consideration between the two; however, correcting the case involves maintaining the economic efficiency of the plaintiff. Notably corrective justice has rectification roles creating a link between a wrong and the remedy observed. Subsequently, corrective justice conforms to Aristotle’s beautiful adjudication, which proposes future consideration in any decisions concerning tort law9. According to him, ensuring fairness through punishment of the offender is not the only solution; however, a single judgment must embrace interrelationships. In the corrective justice theory, liability remains the key consideration in any tort law. Consequently, the existence of plaintiff entitlement is an obligation of a defendant correlation, which should also run in favor of the plaintiff. For any liability to be considered as an injustice, the nature of injustice should conform to the corrective liability. According to the corrective theory, this should be in the form of appropriate response guaranteed by judgments from simultaneous cases10. From this perspective, tort laws must get economic consideration for full correlation, which takes back the plaintiff back to his original position. This result to coherence between the parties involved a justification of economic retention. The enumeration of hodgepodge committed to injustice remains a standpoint between justice and tort law making economic considerations a key factor in tort law. It is in this regards that the argument to consider economic considerations remain a factor of non-dispute. As opposed to justice, economic considerations should be given considerations while addressing tort laws as opposed to the mere assertion, which links it to justice. Torts are justification rather that enumeration of offences covered. Consequently, corrective justice ensures application of correlativity corresponding to the duty of the defendant11. This makes economic viability as the only basis of tort laws, which guarantee plaintiffs. Coincidentally, overarching of varied categories initiates non-feasance of situations relating correlativity in corresponding duty of the plaintiff. For instance, if a person owns physical integrity and the other does not, flowing problematic circumstance prevail. Notable corrective justice, which is a form of tort, does not look for strict liability of intelligible conception of retrospective situations. In contrary, it looks for fortuity of harm deciding the nature of an offence committed by the defendant. This creates a situation of operative entitlement to the plaintiff a factor that makes a situation of economic considerations rather than an opportunity to seek justice. This makes economic variations a key factor that needs considerations in any decision regarding tort law. This because concentrating on justice does create equality but fairness. In the end of the situation, the plaintiff remain unstable physically but emotionally competent12. In a case of intentional tort, corrective justice theory recommends evaluation damage in the form of liability. In microeconomics, liability is an economic measurement of a risk or injury. The constituent of a single wrong relies on creation of a reasonable wrong. This results to a temporal suffering of the plaintiff leading to injustice. The elucidated liability, therefore, is economic suffering, which qualifies economic considerations to be a factor in tort law. The immanent critical point driven by, corrective justice relates normative character, to justification of pervasive role. Consequently, corrective justice attempts to give the justification of compensation as means of ensuring equity. The illuminating reciprocal, therefore, remains behind support of the doctrine that economic aspects of life should be central while making decisions of torts. Distributive justice concentrates on the outcome of resources as well as distribution of decisions. According to the theory, fairness gets associated with decisions regarding law remain premised on resources. Notably the outcome of such decisions remain tangible a factor that makes tort laws payments but not fairness. This, therefore, proves the fact that tort decisions should get economic considerations, which are part of tangible resources and outcomes in distributive justice. Consequently, the distributive justice theory explains efficiency of torts as being associated to productivity and efficiency. This is because improving the efficiency of any justice system accelerates behavior change while not considering actions13. The principle of distributive justice creates an obligation to society members to act in the best way possible towards others. The aspect that other people are in need while allocating resources must guide the actions of such individuals. In addition, every person has an entitlement to equal allocation of resources to the extent that triage should presume essential equality. Therefore, making judgments should be based on equality rather than benefits and burdens. In relation to torts, distributive justice attempt to ensure resource allocation during and before compensation remain in line with responsibility of common good. Justice includes virtues such as courage, honesty, generosity and loyalty. It encourages fair distribution of resources; however, at times it promotes self-interest of the people passing the fairness arguments. Nevertheless, the moral force involved in establishing justice at times applies independent, ethical contexts leading to biasness of fairness. This, therefore, makes distributive justice a situation where impartial spectators get applied into a field of neutral stance. Consequently, using economic considerations, while making decisions on torts encourage fairness hence making it the best step towards achieving rational decisions. It is based on this regards that economic considerations become a key concern while addressing the action of people that lead to a direct of indirect effect on another individual. While concluding, the benchmark of tort law has instituted a research agenda in diverse fields. These include sociology, psychology and political arena where diverse research on the topic has attracted mixed reactions. This is due to the aspect of equality and need of tort law, which concentrates on the well being as well as well of society members. Consequently, egalitarianism ensures equality of outcomes a factor acting as a foundation for tort theories. This, therefore, proves that in as much as equality remains a fundamental aspect in the society; tort law should consider economic aspects of any offence committed. This not only results to justice to the offended, but also unbiased fairness to the offended. References B Linda and L George ‘Explaining Bargaining Impasse: The Role of Self-Serving Biases’ Journal of Economic Perspectives, (1997) (Vol. 11 no. 1), JEP 109-126. 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