Justice in Directing Scope of Tort Liability - Essay Example

?Corrective and Distributive Justice in Directing Scope of Tort Liability A tort suit enables a victim that has been injured due to negligence or fault of a third party to shift his or her problems to the guilty party. A successful tort suit results in a judgment of reliability. This judgment will require the defendant to financially compensate the plaintiff. The plaintiff’s legally recognizable costs will have to be settled by the defendant. In some cases, the plaintiff may also be awarded punitive damages and may also obtain an injunction. Tort law, however, does not recognize just any injury as a basis of claim in tort. It distinguishes between two general classes of duties that include duties not to injure and duties not to injure intentionally or negligently. Individuals who engage in activities that are regarded to be dangerous by the law will be subjected to duties of the first sort. When people engage in activities of ordinary riskiness such as driving, they will be subjected to duties of the second sort (Jules and Mendlow, 11 2010). Tort law is torn between two competing justices. Some theorists believe that justice in tort is a matter of corrective justice. This is concerned exclusively with rectification of losses that have been caused due to negligence. Other theorists dispute this and they challenge this belief. They believe that tort law is a matter of distributive justice which deals with fair apportionment of benefits and losses of risky activities. Distributive justice plays a huge role in tort laws as it offers an explanation to existence of strict liability in tort law. Corrective and distributive justices are applied in directing the scope of liability. The fundamental difference between corrective and distributive justice relates to the legal approach to structure of interactions. Corrective justice focuses on transaction between two parties while distributive justice focuses on distribution where compensation will be awarded to group members (Park, 40 2000). For example, a case of personal injury can be organized either correctively or distributively. When the case is organized correctively, an injury is a tort committed by a party to a victim. Compensation of damages to the victim will restore the equality disturbed by the negligence of the guilty party. Distributively, this same case will activate a compensation scheme that distributes resources among a group of recipients and contributors according to the criteria of distribution. A corrective justice system focuses on correcting wrongful acts of an accused party. The tort of negligence has developed a legal notion of wrongful act for the main aim of establishing liability. Fault based liability is, however, limited to confines of rigid test of duty of care, foresee ability and proximity. Corrective Justice versus Distributive Justice Some theorists do not really believe that corrective justice is an independent principle of tort law. This is because considerations which make corrective justice appear as a genuine principle are the same principles that undermine its independence from distributive justice. Also considerations that support corrective justice’s independence from distributive justice still undermine its status as an independent and genuine principle of tort law. These considerations arise from the fact that corrective justice needs reversal of negligent acts to an initial distribution of resources. If initial distribution of resources is just, then corrective justice requires that individuals are returned to a position where they are entitled as a matter of distributive justice. This, therefore, shows that corrective justice is indeed distributive justice but from an ex post perspective instead of being an independent principle of tort law. However, if initial distribution of resources is unjust, then principle of corrective justice will require law makers to sustain, entrench and enforce what is ex hypothesi an injustice. There are ongoing discussions regarding the relationship between corrective justice and distributive justice in tort law theory. This has led to development of different views about these two principles of tort law. On these views, the two types of justices seem to be identical or overlap in some cases. Corrective and distributive justices are less at odds in directing scope of liability, than is commonly believed. They are both concerned with rectifying wrongs and they also explain why a victim should be compensated for wrongful loss. Corrective justice is used to refer to fault theory of tort liability. This type of justice will need cancellation of wrongful losses and gains. It is used to constitute an appropriate basis for tort liability as it clearly identifies the kind of wrongfulness that is adequate to justify a tort recovery. Corrective justice theory is an influential non-economic tort law perspective. It understands tort law as embodying systems of first and second class order duties. First order duties entail duties not to injure. Duties of the first order establish norms of conduct. On the other hand, second order duties are duties of repair. These duties will arise when duties of the first order are breached, that is when a person is injured. Duties of the second order follow from a principle of corrective justice that outlines that a person is required to repair wrongful acts that occur as a result of his own negligence (Wood, 557 2008). In order for an accident or loss to be wrongful, it does not have to be one for which the injurer is morally to blame. It just needs to be an incident of loss to the violation of the rights of the victim not to be injured. In causing an accident or any sort of injury, the guilty party upsets the existing social balance. The offender also gains an unfair advantage and creates a debt to society. Corrective and distributive justices can be used to ensure the offender undergoes fair and proportionate punishment and that the social balance is restored. The offender will be required to compensate his victim or he returns the windfall. This shows that these two types of justices offer answers as to how compensation annuls the crime. Injurer is required to pay the victim sufficiently in order to repair the victim’s losses as well as restore him to the position before the tort. There is a concrete measure for loss as well as a concrete measure of repair and this helps in measuring the amount of compensation that seems fit for material harm caused ( Corrective and distributive justices are avenues through which individuals can appeal to injurers as a source of right to remedy inflicted injury. Suits seeking to hold an injurer liable are bought to court and decisions will be made on why as well as amount a victim should be paid as compensation. When examined, it is clear that corrective and distributive justices have had more than narrowing influences on rights of individuals. By shifting the courts attention to injuries suffered by individuals, these two types of justices have encouraged enforcement of rights that protect individuals from personal injury. They also regulate the discretion of individuals to inflict injury. Corrective and distributive justices further contribute to a broad process of definition of rights where abstract provisions are converted into terms relevant to an individual’s injuries. Whether or not a personal injury victim can justify monetary awards for negligence on compensation grounds, corrective and distributive justices act as unique roles in remedies used in courts to enforce tort laws (Keating, 156 2000). Current analyses of tort laws assert corrective justice and distributive justice as the basis for various forms of tort liabilities. These justices are the main reason as to why society requires users of hazardous substances or negligent drivers to compensate their victims. Corrective justice is however, in some cases, understood as a kind of transactional justice. The domain of distributive justice is identified with initial distribution of holdings. Corrective justice is seen to be exclusively concerned with norms of transfer and norms that determine if departures from an initial distribution are legitimate. Distributive justice deals with whether allocation of resources is unfair or unequal. Norms of justice answer the questions as to who is to receive compensation as well as the reason. These norms fit into various types that include norms of distributive justice and norms of corrective justice. These two classes of norms stand to each other where there are potential holders of certain goods. One of them will gain certain goods or ills from, or may lose to the other (Witt, 25 2007). The main question is how the transaction will be counteracted or reversed. Question of corrective justice is one of whether and in what form and to what extent and on what ground should compensation be awarded from an injurer to a victim. This norm of corrective justice regulates reversal of some transactions. Conclusion Most individuals see corrective and distributive justices to be at odds with each other mainly because of various misinterpretations. A common misinterpretation is one which portrays corrective justice to be more personal compared to distributive justice. For some people, this may mean conformity is a matter of agent relative concern with norms of corrective justice while conformity with distributive justice is a matter of agent-neutral concern. Others also believe that corrective justice only regulates actions of individuals from whom the compensation is to be made while distributive justice aims to only regulate actions of the injurer. These misconceptions have led to arguments that corrective justice is distinct both normatively and conceptually from distributive justice. Theorists further contend that corrective justice should not be viewed as an ancillary to distributive justice (Paz, 86 2007). There are important lessons that can be learned from corrective and distributive justice. A theoretical account of tort laws revolves around corrective justice, that aims to remedy a plaintiff’s loss caused by the negligence of a defender, and distributive justice, whose goal is fair distribution of benefits and burden in society. Corrective justice teaches that establishing that an act is wrongful is a precondition for finding negligence. These two types of justices teach individuals that it is necessary to examine consequences in order to evaluate wrongfulness of the activity as well desirability of the legal rule. Distributive and corrective effects of the legal rule of tort law are important as they ensure individuals have a fair based claim for equal treatment and compensation. References Gardner, J. (2010). What is Tort Law For? Retrieved from http://www.law.ed.ac.uk/legaltheory/files/Gardner_What%20is%20Tort%20Law%20For.pdf Jules, C. and Mendlow, G. (2010). Theories of Tort Law. Retrieved from http://plato.stanford.edu/entries/tort-theories/#CorJus Keating, C. G. (2000). Distributive and Corrective Justice in the Tort Law of Accidents. 74:193 Park, J. J. (2000). The Constitutional Tort Action as Individual Remedy. Retrieved from http://www.law.harvard.edu/students/orgs/crcl/vol38_2/park.pdf Paz, K. T. (2007). Torts, Egalitarianism and Distributive Justice. Ashgate Publishing, Ltd: Burlington, VT Witt, J. F. (2007). Contingency, Immanence and Inevitability in the Law of Accidents. Journal of Tort Law. Vol 1: 20-33 Wood, D. (2008). Retributive and Corrective Justice, Criminal and Private Law. Retrieved from http://www.scandinavianlaw.se/pdf/48-33.pdf Read More