Court Considerations of Tortious Distributive Justice

‘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. 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. In distributive justice, by contrast, the parties interact not directly but through the medium of a distributive scheme. Instead of linking solely the specific tortfeasor to the victim, distributive justice links all possible tortfeasors or victims in the same group to the benefit or the burden that they jointly share.[7] By way of example, the legal regime of personal injuries can be organized either correctively or distributively. Correctively a tort is committed by one party against another and the subsequent payment of damages from the first party to the second will restore the equality disturbed by the initial wrong.

Distributively, the same incident activates a compensation scheme that shifts resources among members of a pool of contributors and recipients in accordance with a distributive criterion. The difference between corrective and distributive justice lies not in the different subject matters to which they apply, but in the way that they each operate differently on a subject matter to both. One argument against courts taking into consideration distributive justice in their decisions is the view that distributive and corrective justice considerations are incompatible and that when a corrective justification is mixed with a distributive one, each unavoidably undermines the justificatory force of the other.

This is a view advocated by Weinrib[8] who argues that corrective and distributive justice are categorically different. He argues that if the law is to be coherent, any given relationship cannot rest on a combination of both corrective and distributive justifications. He claims that corrective justice is the backbone of the private law relationship and there can be no combining of distributive and corrective considerations. He rejects distributive considerations as being ‘alien’ to tort law interpreted as a coherent normative practice.[9] Many scholars however dispute Weinrib’s claim that distributive and corrective justice considerations are categorically different. Gardner[10] for example contends the opposed view that certain questions of distributive justice are central to the law of torts and must be faced by those who administer and develop it, namely the judiciary, precisely because the law of torts is a site of corrective justice. His view is that corrective justice specifies the structure of tort law as a system of correlative rights and obligations of recompensation between doers and sufferers of harm and that principles of distributive justice operate within this structure by specifying what these rights and obligations are. This theory results in a sense in which distributive justice is parasitic on corrective justice. A thesis which is supported by Cane[11], who states that corrective justice provides the structure of tort law within which distributive justice operates.

The fact that many scholars believe that corrective and distributive justice can work together coherently, disproves the argument put forth by Weinrib that distributive justice should not be considered in the courts, as it undermines essential corrective justice considerations. Moreover, it has been shown that distributive justice can be used as a constraint on corrective justice. In White[12], Lord Hoffman said that it would offend the ordinary person’s notion of distributive justice if police officers who suffered psychiatric harm as a result of witnessing the events at the stadium were allowed to recover when many relatives had been sent away empty-handed. He contrasted the perspective of distributive justice with that of “principle”. From the perspective of principle (or corrective justice), the question of whether the officers should recover would have been answered by considering solely the relationship between them and the defendants, ignoring their position in relation to other groups of victims. In Lord Hoffman’s view, if the court was to take into account only corrective justice considerations the result would have been that the officers would be allowed to recover. The reason he rejected this result was that the relatives had not been allowed to recover in Alcock[13]. To allow the police officers to recover when the relatives had been sent away empty-handed would have generated an unacceptable distribution of the risks and costs of negligence as between different classes of victims and injurers. So he used distributive justice consideration as a constraint on corrective justice to prevent this unfavourable outcome. The introduction of loss-spreading into tort law also demonstrates a blurring of the lines between corrective and distributive justice. The principle that accident losses should be distributed so as to minimize their felt impact has the proportional structure of distributive justice as it mandates the sharing of burdens in accordance with a criterion. Although it can and is argued by Weinrib that its use in tort law, fails to achieve distributive justice, because continuing the proportion by applying the principle to everyone within its reach is inconsistent with its being channelled through the doer and sufferer of a single harm. Conversely, since the issue of how the loss is ultimately spread is not relevant to the relationship of doing and suffering as such, in fact the best medium for loss-spreading might be some third party, the orienting of tort law toward loss-spreading cannot be portrayed as purely corrective justice consideration either.

The combination of elements from both forms of justice ensures that neither form is achieved. Another somewhat more substantial argument against courts seeking to take account of considerations of distributive justice in tort, is that distributive decisions are often considered political by nature and therefore as a matter of course should not be undertaken by the judiciary. Weinrib argues that favouring a certain distributive consideration amongst several alternatives, requires the consideration of a collective goal which is external to the structure of corrective justice, and as such is political and thus falls outside the judicial scope.[14] Thus making distributive issues ‘illegitimate’ for consideration by the judiciary under the law of torts. A view which is supported by Schwartz. [15] The illegitimacy charge is based on an assumption that from a procedural justice perspective the idea that judges determining issues of resource distribution is problematic, since judges are not elected and their decisions do not necessarily reflect the preference of the voting public. He points to two features of the judicial process that make it unsuitable for resolving political issues of distribution. First, courts do not have the capacity to consider the full range of possible distributions, partly because their consideration of distributive issues is inevitably related to the resolution of disputes between two parties; judges therefore cannot make distributive decisions which affect whole categories of potential doers and suffers of harm. He argues that because the rules and principles of tort law organise the world in terms of bilateral relationships between pairs of tortfeasors and victims, it is implausible to explain it as a distributive mechanism. It might be thought from this, that distributive queries can only properly be considered by legislators and not judges and that judges in tort cases should only do justice between the parties. But where the rule of law prevails, doing justice between the parties must necessitate consideration of whether the plaintiff belongs to a class of people who should enjoy a right to proceed in tort against the defendant. Under the rule of law judges must not separate the rule from the ruling, either by declaring what the rule is or will henceforth be while declining to apply it to the case in hand, or by denying that there is a rule.

Therefore it follows that no judge may rule in favour of any plaintiff except by placing the plaintiff within a class of imaginable plaintiffs who would, according to the judge, be entitled to the same ruling. So when courts recognize new causes of action in tort, or extend existing causes of action, they are distributing legal rights and duties to new classes of potential plaintiffs and potential defendants whether intentionally or not. Secondly, he submits that because distributive justice decisions can have far reaching implications affecting the interest of all members of the community, these sort of decisions should be made by the legislature who, unlike judges, are accountable to the community.[16] In other words, any specific distributive decisions should be made solely by elected institutions since it affects the interests of many individuals. It is his view that judges, who are not elected and who are institutionally constrained by the limitations of the judicial process, do not have the authority to select a certain distribution among possible distributions. These arguments are not without merit. Courts themselves recognise their limitations in considering issues of social policy, and sometimes use this as a justification for refusing to make a particular distributive choice in a particular way.[17] However, as Keren-Paz[18] points out, a decision not to ‘intervene’ can have equally politically value-laden implications. Typically the refusal to make a distributive choice is in itself a distributive choice, which takes sides in the struggle between different groups in society and is heavily biased in favour of status quo and the ‘haves’ against the disadvantaged. He asserts that a decision to perpetuate the status quo is as political in nature as to a decision to deviate from it.[19] Keren-Paz submits that the only justification for judicial deference from distributive decisions is reliant upon the implausible conclusion that the status quo reflects a conscious, informed and legitimate decision by the legislature countering the decision that the court is asked to make, by a litigant striving to achieve social change.[20] This cannot be the case since, as a matter of constitutional law there is no legislation by omission. Also if it were the case then, given the inevitability of some form of distribution resulting from court-made rules, it might be taken that courts be prevented from developing new tort rules at all as there is an inevitability of some distributive results of tort law and that the political nature of judicial rule making is inevitable. An example of how in the process of attempting corrective justice between the parties in a tort case, judges may also be attempting distributive justice between classes of parties, is illustrated by the case of Donoghue and Stevenson[21]. The case whereby the modern concept of negligence was created by setting out general principles whereby one person would owe a duty of care to another person. The decision in this case improved the position of a category of potential victims at the expense of a category of potential tortfeasors, thus clearly having distributive effect.

This shows that whenever there is a question before the court of which acts ought to be classed as torts, judges cannot avoid attempting distributive justice. Every decision of the court has clear distributive repercussions yet no one seriously disputes the legitimacy of the courts in dealing with these issues. It is true that judges are not held accountable in the same way that politicians are, although it is not true that judges are unaccountable.

For instance, the judicial obligation to give reasons for judgment that can withstand critical scrutiny is an important form of accountability. A clear of advantage of the courts taking into account considerations of distributive justice whilst crafting tort rules is that it requires an open discussion by judges of the distributive effects of their decisions. Although it is suggested by Mandel[22] that courts are more likely to be conservative and that they tend to impede rather than further an egalitarian agenda, it is countered by Keren-Paz[23] that no matter what the judges’ real inclinations are, conservative or not, if the consideration of distributive goals is required then judges are more likely to produce progressive results than regressive ones given the costs of being seen to endorse explicit inegalitarian views. It is my opinion that, requiring judges to take account of distributive justice considerations would improve transparency, as judges would be required to reveal the values that lie behind their decisions and not hide behind the argument that such decisions are outside their purview. However troubling the lack of accountability of the courts may be, it can provide no support for an argument against involvement in redistribution, since preserving the status quo is as political as engaging in progressive redistribution. Although I firmly believe otherwise, even if it were true that the lack of accountability of the courts presents a real challenge to their legitimacy in pursing distributive goals, the ability of the legislature to react to courts’ rulings by amending or complementing them should provide an adequate response to this concern. In conclusion I do not believe it inappropriate for courts to seek to take account of considerations of distributive justice in their decisions in tort. I believe that taking into consideration the distributive justice effects of court rulings would in fact have positive effects as it would encourage judges to consider the distributive implications that will be inevitably caused by any formation of new tort rules. Also as demonstrated in White distributive justice considerations can be used as checks on decisions that if considered under a purely corrective justice approach may have negative effects for substantive justice.

Although the judiciary are not held to the same standards of accountability of the legislature, there are still sufficient restrictions in place to hold the judiciary accountable for decisions made with distributive considerations in mind with the security that the legislature can always overrule court rulings if deemed necessary. Bibliography

1. A Schwartz (cited T Keren-Paz, Torts, Egalitarianism and Distributive Justice (2007))
2. Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310
3. Aristotle, Nicomachean Ethics (2000) (“Ethics”)
4. Donoghue v Stevenson [1932] AC 562
5. E Weinrib, The Idea of Private Law (2013)
6. J Gardner, What is Tort Law for? Part 1: The Place of Corrective Justice (2010)
7. J Gardner, What is Tort Law For? Part 2. The Place of Distributive Justice (2013)
8. M Mandel (cited T Keren-Paz, Torts, Egalitarianism and Distributive Justice (2007))
9. P Cane, Distributive Justice and Tort Law (2001)
10. S Perry, “Tort Law” in Patterson (ed) A Companion to Philosophy of Law and Legal Theory (1996)
11. T Keren-Paz, Torts, Egalitarianism and Distributive Justice (2007)
12. White v Chief Constable of South Yorkshire [1998] 3 WLR 1509

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[1] Aristotle, Nicomachean Ethics (2000) (“Ethics”) 85. [2] S Perry, “Tort Law” in Patterson (ed) A Companion to Philosophy of Law and Legal Theory (1996) 333, 71-72. [3] P Cane, Distributive Justice and Tort Law, [4] J Gardner, What is Tort Law For? Part 2. The Place of Distributive Justice (2013) [5] P Cane supra note 3 [6] J Gardner, What is Tort Law for? Part 1: The Place of Corrective Justice (2010) [7] T Keren-Paz, Torts, Egalitarianism and Distributive Justice (2007) [8] E Weinrib, The Idea of Private Law (2013) [9] ibid [10] J Gardner, supra note 4 [11] P Cane supra note 3 [12] White v Chief Constable of South Yorkshire [1998] 3 WLR 1509 [13] Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 [14] E Weinrib, The Idea of Private Law (2013) [15] A Schwartz (cited T Keren-Paz, Torts, Egalitarianism and Distributive Justice (2007)) [16] E Weinrib, The Idea of Private Law (2013) [17] T Keren-Paz, Torts, Egalitarianism and Distributive Justice (2007) [18] ibid [19] ibid [20] ibid [21] Donoghue v Stevenson [1932] AC 562 [22] M Mandel (cited T Keren-Paz, Torts, Egalitarianism and Distributive Justice (2007)) [23] T Keren-Paz, supra note 8

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