Court considerations of tortious distributive justice

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‘It is inappropriate for courts to seek to take account of considerations of distributive justice in their decisions in tort such factors are ones for the legislature alone.’

Critically evaluate this statement.

In order to evaluate whether or not it is appropriate for the courts to take account of considerations of distributive justice in tort, the meaning of distributive justice in this context must be considered. According to Aristotle’s classic definition, distributive justice is a mechanism by which benefits and burdens among the members of a relevant group in proportion to some criterion are distributed.[1] By way of example, a criterion for distribution which is commonly considered is equality; which involves an attempt to decrease the gaps between the ‘haves’ and the disadvantaged. Often when the term distributive justice is brought up, issues concerning tort law’s impact on the distribution of resources across the wider population spring to mind.

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This reflects the distributive justice theory propounded by Perry[2] in which he states the point of distributive justice is understood to be the just distribution of material resources throughout society as a whole. Perry’s theory of distributive justice consists of a pattern of entitlements to material resources existing independently of tort law, and of tort law as a set of obligations not to disturb that pattern. Cane[3] draws an important distinction between distributive justice all things considered, otherwise known as global distributive justice, and the distributive justice that is confined to tort law. Because of its corrective-justice structure, tort law may be considered distributively unfair in the global sense even if the way it distributes rights and obligations is considered fair as between doers and sufferers of harm. As a matter of fact, one of the most common criticisms of tort law is precisely that it distributes justice unfairly because it operates pair-wise or under a ‘correlativity,’ it often doesn’t take into account wider distributive context of society. [4] Under Cane’s approach, tort law itself consists of rules and principles of personal responsibility for harm that establish a pattern of distribution of risks of harm and obligations of repair within society. The subject matter of the relevant principles of distribution under the approach are risks of harm and obligations of reparation and correlative entitlements, not ‘material resources’.[5] It is widely held that any sound explanation of tort law must, whatever other considerations it may invoke, invoke considerations of corrective justice.[6] Corrective justice is the idea that liability rectifies the injustice inflicted by one person on another. It focuses on a quantity that represents what rightfully belongs to one party but is now wrongly possessed by another party and therefore must be returned to its rightful owner.

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