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ACCIDENT LAW FOR EGALITARIANS

Published online by Cambridge University Press:  13 December 2006

Ronen Avraham
Affiliation:
Northwestern University
Issa Kohler-Hausmann
Affiliation:
Yale University

Abstract

This paper questions the fairness of our current tort-law regime and the philosophical underpinnings advanced in its defense, a theory known as corrective justice. Fairness requires that the moral equality and responsibility of persons be respected in social interactions and institutions. The concept of luck has been used by many egalitarians as a way of giving content to fairness by differentiating between those benefits and burdens that result from informed choice and those that result from fate or fortune. We argue that the theory of corrective justice, along with its institutional embodiment of tort law, is at odds with an egalitarian commitment to fairness because it allows luck an unjustifiable role in determining dissimilar liability for similar wrongs and dissimilar compensation for similar losses to bodily integrity. Many egalitarian political theorists have also recognized, if not defended, the notion of distinct forms of justice, namely corrective, retributive, and distributive. Although theorists of these different forms of justice have been concerned with negating unfair luck inside the operations of each form of justice, there has been little attention to the way in which luck operates to sort cases into each form of justice. We claim that there is a significant way in which luck operates to subject different people to principles of corrective, retributive, and distributive justice—thereby assessing dissimilar liability for similar wrongs and disparate compensation for similar losses—which flies in the face of the egalitarian value of fairness. After surveying the arguments put forward by theorists defending a categorical distinction between corrective justice and retributive and distributive principles, we argue that although analytical distinctions can be made between different forms of justice (although, we also suggest that the distinctions are not as sharp as some commentators suggest), there is no good reason to defend an acoustic separation between these forms of justice when doing so creates unfair outcomes.

Type
Research Article
Copyright
© 2006 Cambridge University Press

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Footnotes

We thank Robert Burns, Jules Coleman, Hanoch Dagan, David Dana, Richard Epstein, Ofer Grosskopf, Gregory Keating, Tsachi Keren-Paz, Andy Koppelman, Kyle Logue, Ariel Porat, Kate Shaw, Danny Statman, Charles Taylor, Ernest Weinrib, and the participants of the Northwestern University School of Law Faculty Workshop, the Northwestern University School of Law Zodiac Forum, the Tel Aviv University Faculty of Law Faculty Seminar, and the Hebrew University Faculty of Law Faculty Seminar. We would also like to thank three anonymous reviewers from LEGAL THEORY, whose insightful comments were a tremendous help in improving this paper.