Torts, Egalitarianism and Distributive Justice

Tsachi Keren-Paz

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9780815398493
• eBook ISBN: 9781351144506
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book argues, from a normative perspective, for the incorporation of an egalitarian sensitivity into tort law, and more generally, into private law. It shows how an egalitarian sensitivity can reformulate tort doctrine, with an emphasis on the tort of negligence. Rather than a comprehensive descriptive account of existing tort law, this book pro-actively searches for new approaches and conceptual tools to meet the challenges faced by egalitarians. The understanding of tort law offered in this book will bring about better practical results in specific cases. It supports the progressive troops in the ongoing philosophical and social battles that take place in the field of tort law and also adds another voice - rich, nuanced and sensitive - to the chorus that is tort theory.

Chapter 1

Introduction

Tort law regulates involuntary interactions in private settings, when such interactions harm some, or all participants. As such it raises questions of both social policy and moral theory. William Prosser has observed that ‘[p]erhaps more than any other branch of the law, the law of torts is a battleground of social theory’.¹ In fact, tort law is a battleground of philosophical theory. The philosophical battleground precedes the social one in the sense that a major battle pertains to the legitimacy of the claim that tort law should be a battleground of social theory. Some dispute the public nature of tort law and ignore its broader social ramifications, both practically and symbolically. Tort law, however, is rife with value judgments concerning the kind of society one would like to live in. It strikes a balance between the values of opposing autonomy-based claims, and between the values of self-reliance and personal responsibility on the one hand and altruism and other-regarding on the other.

The potential reach of tort law is extensive due to the fact that it is based on involuntary interactions which are not mediated by a possible sense of shared community (as might arguably be the case in a contractual setting). These features make tort law an especially interesting philosophical and social battleground. This book endorses a view that is both sensitive to the political stakes of tort law and that is egalitarian; it is committed to advancing the status of disadvantaged members in society. This book tries to show why such a view is commendable and should be endorsed normatively, and how it can be relevant to tort law.

The battle over philosophical and social interpretations of tort law spills over into the question of the goals that tort law should promote. Numerous answers have been given to this question. Although tort scholarship includes some pluralist approaches, it is dominated by two monist approaches: an economic analysis of law, which aims to maximize societal wealth; and corrective justice, which limits itself to meting out justice on a retroactive basis to particular litigants.² This book offers another approach to tort law: one that is instrumentalist, pluralist, contextual and progressive.

Instrumentalist (or functionalist) legal approaches are forward-looking. They view law as an instrument which is used to achieve social and moral goals. Pluralist approaches to tort law maintain that tort law should (or does) promote more than one goal. The underlying theme in this study is that in addition to traditional goals, such as deterrence and compensation, tort law should be attentive to its distributive effects; tort law can and should promote equality and in particular the status, power and well-being of the disadvantaged. It will be shown how tort law can promote the status of the disadvantaged, given its structural limitations and its role in promoting other goals. As will become clear from the discussion in the following chapter, this study dwells on the intersection of doctrine (tort law), conceptual apparatus (distributive justice), and normative commitment (an egalitarian-progressive approach).

This study could be classified as belonging to two streams of scholarship. The first stream attempts to defend the relevance and legitimacy of using private law for (limited) redistributive purposes. The other line of scholarship related to this study is the one trying to employ tort law progressively, with an ambition to be sensitive to the demands of equality and the interests of disadvantaged groups in society.³

The book is divided into two parts, theoretical (Chapters 2–3) and practical (Chapters 4–8). Chapter 2 begins by introducing the theoretical framework – an exposition of distributive justice, concepts of equality and a functional approach to law and tort law. The latter will be examined in terms of its function, social impact, goals and normative commitment. It then comments on the relationship between egalitarian tort law and the welfare state, and introduces the limits of the argument advanced in this book. Chapter 3 is devoted to defending the normative claim that tort law can and should promote equality as one of its goals. The discussion attempts to provide answers to critiques from both corrective justice and efficiency-oriented scholars. It responds to the claims that the egalitarian agenda is illegitimate due to the fact that judges are not accountable (illegitimacy), that it is unjust to promote equality by private law since such redistribution is deemed to be partial (randomness), that such an attempt is undesirable since it interferes too much with the attainment of other goals of private law (excessive cost), and that it is likely to be ineffective due to institutional limitations of courts and private law (ineffectiveness). It finds all these charges ultimately unconvincing.

Chapter 4 lays the ground for the application of an egalitarian approach to tort theory. It exposes the inherent regressive bias of existing tort law, explores the ways in which an egalitarian commitment can reshape tort law, presents the difficulties involved in an attempt to assess a rule’s equality effect, explains the two possible egalitarian recommendations, and sketches a framework for balancing the dictates of egalitarianism with other competing goals of tort law. Chapter 5 suggests how to formulate an egalitarian standard of care. It defends the adoption of such a standard, while reconciling egalitarianism with other major policy considerations of corrective justice, efficiency, loss spreading and fairness. Chapter 6 explains how a duty of care should take egalitarianism into account. It concentrates on the issue of maternal prenatal duty and concludes, somewhat surprisingly, that a feminist-egalitarian approach might support a duty that hinges upon the existence of insurance. Chapter 7 maintains that the tort of negligence could and should be used to complement legislation in order to combat discrimination. Chapter 8, after revealing some patterns and lessons emerging from the previous application chapters, concludes by suggesting the contours of a reform to damages law and by flagging a new frontier for egalitarian tort law (which awaits future research) – the fight against human trafficking.

The discussion in the following chapters will revolve around four questions and one theme. An attempt to promote equality and distributive justice by tort law has to inquire what sort of entitlements are distributed by tort law, who is affected by such distribution, what is the price involved in promoting equality, (or engaging in redistribution), and how equality can be promoted effectively and fairly. These questions can be summarized as the ‘what’, ‘to whom’, ‘at what cost’ and ‘how’ questions. The theme underlying the analysis is the importance of context. Tortious interactions arise in different contexts, and sensitivity to the different variables controlling tortious interactions is warranted in order to develop a normatively attractive legal rule.

With respect to the ‘what’ question, the analysis calls to attention the fact that tort law distributes different entitlements, that at times a given rule affects positively the distribution of a given entitlement to a certain group, while at the same time affecting negatively the distribution of another entitlement to the same group, and that the analysis should distinguish between issues of redistribution and recognition.

With respect to the ‘to whom’ question, the analysis distinguishes between issues of inter-group justice and intra-group justice and calls to attention the fact that third parties – those not likely to be litigants – can be affected by the legal rule as well.

With respect to the ‘at what cost’ question, the analysis maintains that the relative weight that should be given to the goal of promoting equality changes with the context, as is the extent to which tension exists between the goal of promoting equality and other goals. For example, at times the more egalitarian rule is also the more efficient.

With respect to the ‘how’ question, the analysis suggests the following: (1) The overall distributive result of the rule in question should be examined (as opposed to a Rawlsean approach). (2) Egalitarian commitment may impose a duty on the actor to behave in a certain way; it may also impose a duty on the policymaker to consider adopting a certain rule given the rule’s distributive effects. (3) Egalitarian considerations can work in the direction of curtailing liability of disadvantaged groups or enhancing liability toward them. (4) Curtailing liability can at times be based on a rationale of excuse and at others based on a rationale of justification. Given the expressive and symbolic aspects of the law, this distinction is important since egalitarian considerations change the social meaning of the defendant’s behaviour. (5) Egalitarian considerations can work both directly and indirectly, by reformulating other policy considerations. (6) The analysis should distinguish between the ability of tort law to redistribute wealth and its ability to redistribute non-material entitlements. (7) In constructing egalitarian rules we can distinguish between rules aiming to help the disadvantaged (‘pro-disadvantaged’) and rules aiming to deprive the ‘haves’ of excessive riches (anti-‘haves’). (8) In constructing egalitarian rules we can distinguish between rules aiming to reverse inequalities created by the effect of the legal rule, and rules aiming to reverse inequality whose cause is external to the rule in question. (9) Inserting egalitarian sensitivity can be done at numerous levels; the most basic distinction, however, is between rules pertaining to the scope of liability and rules pertaining to the scope of compensation.

This book’s ambition is to show that tort law can and should be used progressively, as one mechanism in the ongoing struggle to achieve a more just and egalitarian society. A contextual egalitarian approach to tort law can be squared with other goals that tort law should promote. This book is not a comprehensive descriptive account of existing tort law, but rather a pro-active search for new approaches and conceptual tools to meet the challenges faced by egalitarians. Hopefully, the understanding of tort law offered in this book will bring about better practical results in specific cases, will further the support to the progressive troops in the ongoing philosophical and social battles that take place in the field of tort law as well as elsewhere, and will add another voice – rich, nuanced and sensitive – to the chorus that is tort theory.

1 William L. Prosser, Handbook of the Law of Torts (4th edn, St Paul, 1971), pp. 14–15, s. 3.

2 See Ch. 5.I below.

3 Scholars associated with the first stream are Anthony Kronman, Hugh Collins (contract law), Hanoch Dagan (unjust enrichment law), Iain Ramsay, Alan Kruger, and Robert Lee (consumer law). See e.g., Anthony T. Kronman, ‘Contract Law and Distributive Justice’, 89 Yale LJ (1980) 472. Scholars associated with the second stream are Richard Abel, to whom this work owes a lot, Leslie Bender, Kate Sutherland, Elizabeth Handsley, Anita Bernstein, Martha Chamallas, Elizabeth Adjin-Tettey, Bruce Feldthusen, Mayo Moran, Ken Cooper- Stephenson, Ted Decoste, Thomas Koening & Michael Rusted, Chris Sanchiricho, and Duncan Kennedy. See e.g., Richard L. Abel, ‘General Damages are Incoherent, Incalculable, Incommensurable, and Inegalitarian (but Otherwise a Great Idea)’, 55 DePaul L Rev (2006) 253, pp. 323–4; Leslie Bender, ‘An Overview of Feminist Torts Scholarship’, 78 Cornell L Rev (1993) 575.

Chapter 2

Theoretical Framework

Introduction

This chapter introduces the three concepts which form the theoretical framework and explain the way they interrelate: distributive justice, egalitarian commitment and tort law. Distributive justice deals with distributing benefits and burdens in society in a fair manner according to several criteria. One possible criterion is equality – an attempt to decrease the gaps between the ‘haves’ and the disadvantaged. Tort law is one area where some kind of burden is distributed – the harm caused by involuntary interactions among individuals. Tort law should develop several criteria to answer the question how to distribute this burden and it has done so. The central claim of this study is that one of these criteria should be equality. After introducing the principles underlying distributive justice, egalitarianism and tort law, in Parts I, II and III respectively, Part IV pulls the threads together and sets the ground for the normative claim and the application of the argument.

I. Distributive Justice

Distributive justice, according to Aristotle’s classic definition,¹ is a mechanism to distribute benefits and burdens among the members of a relevant group in proportion to some criterion for distribution, such as merit, needs, equality, status, and so on. Aristotle’s formulation is based on a ‘geometrical’ proportion between two (or more) participants, regarding their possession of the criterion/criteria for distribution and their respective share in the thing distributed (the benefit/burden). For example, if the relevant criterion for distribution is merit, and one person is twice as meritorious as another, the former’s share in the good distributed should be double the latter’s. It is often noted² that Aristotle did not commit himself in his discussion of distributive justice to a particular criterion for distribution, but rather mentioned that such a selection is dependent upon one’s political conception of the good. The basic structure of distributive justice, therefore, is comprised of: (1) the participants in the distribution; (2) the thing to be distributed; and (3) the criterion/criteria for distribution.

A. The Participants

Issues of distributive justice are relevant to the distribution of entitlements (goods) between groups consisting of two participants or more. One distinction offered in the literature is between distributions among small groups, and in society at whole.³ In this respect, the situation in the context of torts is something of a hybrid. From a corrective justice perspective – looking at the specific parties litigating over past interaction – it involves a small number of litigants, usually two. From an instrumentalist perspective – looking at the rule’s effects on potential litigants – it includes all the potential litigants affected by the rule, and possibly third parties as well.

An important aspect of the approach presented here is that the examination of the distributive effects of tort rules should be attentive to the group identity of the individuals involved and affected by the distribution. An evaluation of the desirability of the distributive effects of tort rules should therefore be attentive to the ways in which these rules affect different identifiable groups in society. In particular, egalitarian approach requires that we give attention to the ways in which tort rules affect members of disadvantaged groups, such as women, minorities, and the poor.

B. The Thing Distributed

Distributive justice dispenses benefits and burdens among the participants in the distribution. For present purposes it is important to observe three interrelated points. First, the legal rule will also distribute intangible goods. Second, a given legal rule can affect the distribution of more than one good. Third, some goods distributed by the legal rule are derivative of other goods whose distribution by the rule is more evident. The legal rule controlling the distribution of goods (either in regard to persons or property) will distribute more than the rights to the tangible object or its economical value.⁴ It also distributes goods such as liberty (both negative and positive), dignity and societal power and status, as well as control, individual security in one’s wealth and social responsibility.⁵

C. Criteria for Distribution

Most of the debate in the distributive justice literature is dedicated to the question of which criterion or criteria should control the distribution. Monist approaches emphasize criteria such as entitlement, equality, needs or desert. According to Robert Nozick’s libertarian-patterned entitlement theory, individuals are entitled to what they acquired in a procedurally fair manner. Entitlement can be obtained either through a transfer from a rightful prior owner or by a first acquisition. The government has no justification in engaging in redistribution of what was acquired according to the procedural rules, regardless of the desirability of the end-result of the holdings.⁶

Egalitarian programmes all share the idea that the participants in the distribution should get the relevant good according to the concept of equality. What the demands of equality...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• 1 INTRODUCTION
• 2 THEORETICAL FRAMEWORK
• 3 NORMATIVE DEFENCE
• 4 APPLICATORY FRAMEWORK
• 5 STANDARD OF CARE
• 6 DUTY OF CARE
• 7 DISCRIMINATION AS NEGLIGENCE
• 8 CONCLUSION
• Table of Cases
• Table of Legislation
• Bibliography
• Index