.,. Tort Law .,.
A tort is a legal wrong. Tort law is a branch of the civil law; the other main branches are contract and property law. Whereas in criminal law the plaintiff is always the state and the defendant, if found guilty of a crime, is punished by the state, in civil law the dispute is typically between private parties (though the government can also sue and be sued). In the case of torts, the plaintiff is the victim of an alleged wrong and the unsuccessful defendant is either directed by the court to pay damages to the plaintiff (the usual remedy) or else to desist from the wrongful activity (so-called "injunctive relief"). Examples include intentional torts such as battery, defamation, and invasion of privacy and unintentional torts such as negligence. Most contemporary tort theory focuses on the legal consequences of accidents, where the relevant forms of liability are negligence and strict liability. This entry likewise focuses on these forms of liability.
According to the principle of corrective justice, an individual who has wronged another has a duty to repair the wrongful losses occasioned thereby. The corrective justice account thus illuminates not just the bilateral structure of tort litigation, but tort law's emphasis on harm caused rather than harm risked.
Arguably, central to tort law is the moral notion of ‘ownership’, not the moral notion of ‘blame’. Tort law picks out a particular way of recognizing one's ‘ownership’ of some of the untoward outcomes for which one is responsible. It does this by imposing a duty to make good the costs one's wrongs have imposed on those one has wronged. And so, rather than trying to determine whether the injurer has satisfied the conditions that would warrant blaming him for what he has done, tort law inquires into whether the injurer has satisfied conditions necessary to impose on him a duty to repair the plaintiff's loss. In short, the law asks whether the loss is attributable to him as his doing: whether, to use the currently fashionable phrase, he is ‘outcome responsible’ for it. In the prevailing view, to be outcome responsible, the outcome must be foreseeable and avoidable.[2] This emphasis on the ascription of responsibility for outcomes rather than on ascriptions of blame or culpability makes sense within the corrective justice account of tort law in ways in which it would not within a traditional retributive view.
According to economic analysis, all liabilities are simply one or another cost. There is no significant normative difference among punishments, sanctions, duties of repair and taxes. All that matters is the way in which each impacts rational decision-making. But there are important normative differences among these kinds of costs that this crude picture misses. Tort law imposes a duty of repair, and while it is true that a person who is under a duty to act is constrained in the set of actions open to him, duties are neither punishments nor sanctions. In contrast with tort law, criminal wrongdoers are subject to punishment for their crimes, and while this means that they are not at liberty to prevent others from punishing them, they have no duty to be punished or to permit others to punish them.
There are other significant differences between the duty of repair in torts and punishment as a criminal sanction. The duty of repair in torts is a debt of repayment one owes those one has wronged and has injured as a result. Like other debts of repayment, it can be discharged by third parties — and not only if the debt holder has authorized repayment. By contrast ‘debts’ incurred as a result of criminal mischief cannot be discharged by third parties. I cannot serve your prison sentence justly. To be sure, I might be imprisoned for a crime you have committed, and my love for you may lead me to substitute myself for you when the time comes for you to begin your prison term. But both cases involve injustice: the first to me, the second to the world as a whole.
Nor can one guard against liability to criminal sanction by purchasing insurance. In contrast, it is common to purchase insurance to guard against the burdens of tort liability. Indeed, in some cases purchasing third party insurance is mandatory. Not only is it a mistake to lump together sanctions, taxes and liability judgments as interchangeable implements in the legal reformer's tool box, the practices for which each is appropriate are governed by different norms. Failure to notice the differences in character of these ‘costs’ disables one from understanding the underlying norms governing our differing legal and social institutions.
The emphasis on duties of repair as well as on the range of ways in which those duties can be discharged consonant with justice is illuminated by the principle of corrective justice in ways in which these features of tort law are not illuminated by either retributive or economic theory. The claim is that corrective justice explains the relationship between the duty to prevent or avoid harm on the one hand, and the duty to repair its costs on the other. It is a principle that grounds duties of repair, not the duties of care that are the bases of those duties of repair. Though it grounds duties of repair, it does not mandate a mechanism by which those duties are to be discharged.
It is tempting to think of corrective justice as a goal of tort law in the same way that economists think of efficiency or optimal deterrence as a goal of tort law. The better view is that corrective justice is not a goal of the law in the way in which efficiency might be. Rather, corrective justice itself is a principle of justification; it seeks to articulate grounds upon which a certain category of duties rest. It claims that certain duties of repair or repayment are grounded on one's responsibility for them. The grounds of the duty to repair are: (1) the fact that one has a prior duty to take into account the interests of another and to mitigate one's own conduct accordingly; (2) the fact that one has failed to do so; (3) the fact that one's failure to do so results (in an appropriate way) in harm to another; and (4) the harm that results is one for which can be charged to an agent as his doing, or, in the contemporary jargon, for which he is outcome responsible. No one claims that these grounds must be satisfied if ever an agent is to have a duty of repair or repayment. Corrective justice grounds some, but, very likely, not all of our duties of repair.
If this is the way to think about corrective justice, how ought we think about its relationship to fault and strict liability? The question is whether the duties of repair and the conditions under which they arise in tort law are ones which are by and large grounded in the principle of corrective justice so conceived. As I argued above, both strict and fault liability in torts involve wrongs, that is, the breach of an underlying duty of care. The fault in fault liability is not a modifier of the character of the injurer but a constraint on the content of the underlying duty of care he owes the plaintiff. The difference between fault and strict liability standards is a difference in the nature of the content of the underlying duties we owe one another.
In strict liability, the defendant is thought to owe the plaintiff a duty of the form A not to harm by X-ing. It is natural to think that the duty is absolute or unconstrained. But it is in fact constrained in several ways, and in each of the ways it is constrained, the duty in strict liability resonates with the conditions of a duty of repair in corrective justice. The blaster is liable strictly, not to everyone who is injured by his conduct, but only to those to whom he owed a duty not to harm by blasting: those who fall within the ambit of foreseeable risk. Second, he is not liable to all those that he injures because he blasts, but only to those that are injured in the appropriate way by his blasting. In strict liability, there are the requirements of a wrong to a plaintiff (class), a harm, the appropriate causal connection between the two, and other elements of responsibility for the outcome, including forseeability and avoidability.
According to the principle of corrective justice, an individual who has wronged another has a duty to repair the wrongful losses occasioned thereby. The corrective justice account thus illuminates not just the bilateral structure of tort litigation, but tort law's emphasis on harm caused rather than harm risked.
Arguably, central to tort law is the moral notion of ‘ownership’, not the moral notion of ‘blame’. Tort law picks out a particular way of recognizing one's ‘ownership’ of some of the untoward outcomes for which one is responsible. It does this by imposing a duty to make good the costs one's wrongs have imposed on those one has wronged. And so, rather than trying to determine whether the injurer has satisfied the conditions that would warrant blaming him for what he has done, tort law inquires into whether the injurer has satisfied conditions necessary to impose on him a duty to repair the plaintiff's loss. In short, the law asks whether the loss is attributable to him as his doing: whether, to use the currently fashionable phrase, he is ‘outcome responsible’ for it. In the prevailing view, to be outcome responsible, the outcome must be foreseeable and avoidable.[2] This emphasis on the ascription of responsibility for outcomes rather than on ascriptions of blame or culpability makes sense within the corrective justice account of tort law in ways in which it would not within a traditional retributive view.
According to economic analysis, all liabilities are simply one or another cost. There is no significant normative difference among punishments, sanctions, duties of repair and taxes. All that matters is the way in which each impacts rational decision-making. But there are important normative differences among these kinds of costs that this crude picture misses. Tort law imposes a duty of repair, and while it is true that a person who is under a duty to act is constrained in the set of actions open to him, duties are neither punishments nor sanctions. In contrast with tort law, criminal wrongdoers are subject to punishment for their crimes, and while this means that they are not at liberty to prevent others from punishing them, they have no duty to be punished or to permit others to punish them.
There are other significant differences between the duty of repair in torts and punishment as a criminal sanction. The duty of repair in torts is a debt of repayment one owes those one has wronged and has injured as a result. Like other debts of repayment, it can be discharged by third parties — and not only if the debt holder has authorized repayment. By contrast ‘debts’ incurred as a result of criminal mischief cannot be discharged by third parties. I cannot serve your prison sentence justly. To be sure, I might be imprisoned for a crime you have committed, and my love for you may lead me to substitute myself for you when the time comes for you to begin your prison term. But both cases involve injustice: the first to me, the second to the world as a whole.
Nor can one guard against liability to criminal sanction by purchasing insurance. In contrast, it is common to purchase insurance to guard against the burdens of tort liability. Indeed, in some cases purchasing third party insurance is mandatory. Not only is it a mistake to lump together sanctions, taxes and liability judgments as interchangeable implements in the legal reformer's tool box, the practices for which each is appropriate are governed by different norms. Failure to notice the differences in character of these ‘costs’ disables one from understanding the underlying norms governing our differing legal and social institutions.
The emphasis on duties of repair as well as on the range of ways in which those duties can be discharged consonant with justice is illuminated by the principle of corrective justice in ways in which these features of tort law are not illuminated by either retributive or economic theory. The claim is that corrective justice explains the relationship between the duty to prevent or avoid harm on the one hand, and the duty to repair its costs on the other. It is a principle that grounds duties of repair, not the duties of care that are the bases of those duties of repair. Though it grounds duties of repair, it does not mandate a mechanism by which those duties are to be discharged.
It is tempting to think of corrective justice as a goal of tort law in the same way that economists think of efficiency or optimal deterrence as a goal of tort law. The better view is that corrective justice is not a goal of the law in the way in which efficiency might be. Rather, corrective justice itself is a principle of justification; it seeks to articulate grounds upon which a certain category of duties rest. It claims that certain duties of repair or repayment are grounded on one's responsibility for them. The grounds of the duty to repair are: (1) the fact that one has a prior duty to take into account the interests of another and to mitigate one's own conduct accordingly; (2) the fact that one has failed to do so; (3) the fact that one's failure to do so results (in an appropriate way) in harm to another; and (4) the harm that results is one for which can be charged to an agent as his doing, or, in the contemporary jargon, for which he is outcome responsible. No one claims that these grounds must be satisfied if ever an agent is to have a duty of repair or repayment. Corrective justice grounds some, but, very likely, not all of our duties of repair.
If this is the way to think about corrective justice, how ought we think about its relationship to fault and strict liability? The question is whether the duties of repair and the conditions under which they arise in tort law are ones which are by and large grounded in the principle of corrective justice so conceived. As I argued above, both strict and fault liability in torts involve wrongs, that is, the breach of an underlying duty of care. The fault in fault liability is not a modifier of the character of the injurer but a constraint on the content of the underlying duty of care he owes the plaintiff. The difference between fault and strict liability standards is a difference in the nature of the content of the underlying duties we owe one another.
In strict liability, the defendant is thought to owe the plaintiff a duty of the form A not to harm by X-ing. It is natural to think that the duty is absolute or unconstrained. But it is in fact constrained in several ways, and in each of the ways it is constrained, the duty in strict liability resonates with the conditions of a duty of repair in corrective justice. The blaster is liable strictly, not to everyone who is injured by his conduct, but only to those to whom he owed a duty not to harm by blasting: those who fall within the ambit of foreseeable risk. Second, he is not liable to all those that he injures because he blasts, but only to those that are injured in the appropriate way by his blasting. In strict liability, there are the requirements of a wrong to a plaintiff (class), a harm, the appropriate causal connection between the two, and other elements of responsibility for the outcome, including forseeability and avoidability.
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