Title

Accident Law for Egalitarians

Abstract

The article goes back to the basics. It questions the fairness of our current tort law regime and the philosophical underpinnings advanced in its defense, a theory with its roots in Aristotelian thought, called corrective justice. We critique tort law and corrective justice from a standpoint of egalitarian fairness, inspired by distributive justice philosophers such as John Rawls and Ronald Dworkin. Our argument is that the strict theoretical and institutional insulation of tort law—and the normative theory underlying it, corrective justice—from other institutions and principles of justice, namely distributive and retributive justice, gives rise to deleterious consequences in terms of global fairness. Specifically, we claim that luck plays an unjustifiable role in determining dissimilar liability for similarly negligent actors, and dissimilar compensation for equally blameless victims. As many egalitarians support negation of undeserved luck to assure equality, we think the active operation of luck in tort law is a compelling critique of current practice.

Disciplines

Torts

Date of this Version

September 2005