Corrective and Distributive Justice in Tort Law
| Author | Marc A. Loth |
| DOI | 10.1177/1023263X1502200602 |
| Published date | 01 December 2015 |
| Date | 01 December 2015 |
| Subject Matter | Article |
788 22 MJ 6 (2015)
ARTICLES
CORRECTIVE AND DISTRIBUTIVE
JUSTICE IN TORT LAW
On the Restoration of Autonomy and a Minimal
Level of Protection of the Victim
M A. L*
ABSTRACT
Liability in tort law is traditionally justi ed by the notion of corrective justice, but what
about the role of distributive justice? is simple question brings up fundamental issues,
such as exactly what it is in which the victim is restored a er the tort of the wrongdoer,
and how to de ne the limits of this operation. e author defends a mixed theory of
corrective and distributive justice in tort law, using the capability approach of Amar tya
Sen and Martha Nussbaum . According to this theory compensation is to be unders tood as
the restoration of the autonomy of the victim, that is, of his or her capabilities. Since the
cap abil ity a ppro ach i s a t heor y of s oci al ju stic e, to be sa feg uard ed by publ ic in stit utio ns l ike
the courts, this involves a minimal le vel of protection of the victim. Rethinking the role of
justice in tort law opens a whole ne w range of questions.
Keywords: autonomy; capabilities; jus tice; liability; protection
§1. IN T RO DUCT ION
Tort law is one of the most dynamic elds of private law. One of its main characteristics
is its constant application to new soc ietal questions, thus turn ing them into legal ones to
be decided by the courts. I n this article I wil l discuss some examples from the domain of
new medical technolog y and of historical grief (see Section 2).
* e author is Professor of Private Law at Ti lburg University and a former justice of t he Dutch Hoge
Raad. He is grat eful to Gijs van Dijck, Jaap Hage, Jan Sm its, Jaap Spier, Eric Tjong Tjin Tai, and Jan
Vranken for their u seful comme nts on dra s of this pap er. I also pro ted a lot from the fr uitful
debate with rese archers of the University of Maa stricht on 13May 2015. Of course, I am t he only one
responsible for the resu lt, and for any mistak es that remain.
Corrective a nd Distributive Justic e in Tort Law
22 MJ 6 (2015) 789
One of the consequences is that tort law is the battle eld for the debate about the
distribution of new social risks. From this perspective, tort law is a system and practice
for the permanent debate about the distr ibution of the risks of the un happy incidents
that we may face in our lives. But there is a dow nside as well. e application of tort law
to new domains stretches its concepts and rules far beyond their original boundaries,
which not only threatens its coherence but also ma kes it rather indeterminate and
unpredict able. Most of the t ime an adequate ju sti cation for a proposed new application
is lacking, apart from the policy of victim-protection (which in itself justi es any tort
claim). As a result, tort law is rather unprincipled and its doctr ine is always some paces
behind societal developments. What is lacking, from this perspective, is a serious quest
for principles and policies that have the potentia l to justify a nd limit liability in speci c
cases, and thus to develop tort law on a theoretical level as well. ere is nothing as
practical as a good t heory, so the saying goes, and there is a lot of truth i n that.
is article attempts to contribute to this quest for justi cation in tort law. More
in particu lar, it addresses the question to what ex tent the principles of corrective and
distributive justice (or a combination of these) can contribute to the justi cation and
limitation of non-contractua l liability. To achieve this end, I wil l rst present some
recent examples of unprincipled liabil ities, investigating what is lacki ng (S ection 2).
Next, I will turn to the pur poses of tort law as establ ished and recognized by legal
doctrine (Section 3). Are they of any help in t he search for justi cat ion? e notions of
corrective justice and d istributive justice w ill then be a nalysed (Sections 4 and 5). We
will end wit h a mixed theory, claiming t hat considerations of corrective and distributive
justice each play their di stinctive role in tort law (Section 6).
In an attempt to give tha t role esh a nd bones, I make use of the capability-approach,
as developed by Amartya Sen and Martha Nussbaum (Section 7). According to this
approach, tort law is about the restoration of the autonomy of the vict im a er t he harm
in icted upon him or her by the w rongdoer. e capability-approach wi ll help to specify
a minimal standard of protection in tort law, which o ers not only a list of protected
interests in tort law, but also a standa rd for restoration a er a wrongful violation of
one of those interests (Section 8). A er sketching some further questions for research
(Section 9), I will return to t he unprincipled liabilities to see whet her any progress in the
quest for justi cat ion and limitation has been made (Section 10).
i s article consists of two parts. e rst half deals with the principles of correc tive
and distributive jus tice and tries to nd the rig ht mix of both types of considerations for
tort law (Sections 3 to 6). e second part is an attempt to outli ne tort law as a system
and practice for the protection and restoration of individual autonomy (Sections 7 to
9). Although the second part of this article rests on the pa rticular mix of corrective
and distributive just ice that is stipulated in the rst par t, both parts can be studied a nd
appreciated separately. e claims made in the second part do not follow from those
of the rst part, logica lly or otherwi se, although I do think, of course, t hat both parts
mutually streng then each other.
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