'Corrective and distributive justice are less at odds, in directing Essay

'Corrective and distributive justice are less at odds, in directing the scope of tort liability, than is commonly believed'. Cri - Essay Example 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 i t 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 corr ecting 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 just