top of page

LAW OF TORTS AND VARIOUS THEORIES ASSOCIATED WITH IT

Written by: Aditya Sharma




INTRODUCTION


Tort law governs a suit in which a victim can seek remedy from the wrongdoer. Unlike, in criminal cases where the state itself prosecutes the wrongdoer, in tort law, the victim of the wrong can directly sue the wrongdoer. In tort law, generally, the wrongdoer is not sentenced to punishment but rather is judged liable to compensate the victim. The major aim of tort law is not to punish the wrongdoer but rather to restore the rights of the person whose rights have been infringed by the wrongdoer.


According to Sahai, J. “Truly speaking entire law of Torts is founded and structured on morality that no one has a right to injure or harm intentionally or even innocently. Therefore, it would be primitive to class strictly or close finally the ever-expanding and growing horizon of tortuous liability. Even for social development, orderly growth of the society and cultural refinedness, the liberal approach to tortious liability by courts is more conducive”.


The term "tort" means "wrong," thus it is logical to assume that tort law deals with wrongs. However, tort law is unconcerned with all of the wrongs that people commit. Criminal law, not private law, is responsible for dealing with some particular wrongdoings only but some are addressed by both. Furthermore, not every offence covered by private law is likewise protected by tort law. A breach of contract, for example, is not typically regarded as a tort. In general, tort law does not provide a remedy for every type of injury that a victim may suffer. Tort law, on the other hand, offers restitution for a prescribed set of wrongs, or torts. Assault, violence, defamation, and trespass are a few instances[1].


Generally, in tort law, there is no requirement of intention, except in certain cases like deceit, malicious prosecution, etc. In tort law, even a minor (above 7 years of age) can be sued. Through this one can infer that torts are comparatively small-scale wrongs, in which remedy is either damages or restoration of rights.


VARIOUS THEORIES OF LAW OF TORT


Corrective Justice Theory

This theory is the most influential in the law of torts. This theory divides tort law into two categories, namely, first-order duties and second-order duties. First-order duties prohibit the conduct of a person in a wrongful act. For example, a person trying to hit another person with an iron rod (Assault) or successfully hitting him (battery). While the second-order duties are more focused on the concept of repairment, that is, restoring the right of the aggrieved party. Second- order duties emphasise that the one who causes wrong to another has to compensate the aggrieved party, whether in form of damages or specific performance like injunction, etc. Here, wrong is not a moral wrong to be blamed for but rather a violation of legal rights.


Retributive Justice Theory

Retributive justice theory says that the wrongdoer deserves to suffer, but this theory is justified for criminal law. According to this theory, if a person does something wrong, the law will award him a punishment of the same magnitude. This theory is also sometimes associated with the concept of revenge but there is a difference that the revenge is always in a personal capacity while what law does is already established by procedure and indeed in public welfare. Retributive theory can also be expressed by the popular phrase “an eye for an eye”. Many theorists also believe that retributive theory is either completely not or poorly justified for tort law, except for the jurisdiction of tort law dealing with punitive damages. liability in the law of torts does not imply guilt because, as previously stated, a defendant might be held accountable in tort even though he did nothing wrong morally. under the law of torts, the responsibility of repair is similar to the repayment of a debt, which means that it can also be paid by a third party at any time, not just when the creditor (the plaintiff) has permitted repayment. Third-party "debts" incurred as a result of criminal mischief, on the other hand, can never be reimbursed. A person will not be able to serve another's a prison term.


Distributive Justice Theory

Aristotle defines distributive justice as “geometric equality” or “equality of ratios.” Distributive justice theory recommends the distribution of resources based on fairness, among people. According to this theory, the distribution should be made on the principle of equity i.e., allotting a larger part to people who have the lowest resources and giving the lowest resources to people having the largest share. This theory is a key principle which can be applied to both social goods as well as public health services. This principle mandates health services to be accessible to all citizens according to need. This principle also implies that one against whom the wrong is committed is to be compensated accordingly.


Civil Recourse Theory

According to civil recourse theory and corrective justice theory, the moral framework of torts contains a variety of first-order obligations or tasks that establish the standards of conduct. Civil recourse theory, on the other hand, provides a different perspective of the legal repercussions of a breach of a first-order obligation. While corrective justice theory contends that such a breach puts a second-order obligation on the defendant—specifically, a duty of repair—civil recourse theory holds that no such second-order duty is immediately imposed as a result of the breach. Rather, a violation of a first-order responsibility grants the victim a legal right of action, allowing him or her to seek punishment against the person who has wronged her. The existence of this authority originates from what advocates regard as a deeply founded legal concept: the principle of civil recourse, which asserts that someone who has been abused has a legal right to seek remedy against the perpetrator.


CONCLUSION


The jurisdiction of tort law is significant, deals with withholding a wrongdoer liable and restoring the rights of the plaintiff as they were before the wrong was committed. Since tort law holds a person liable for a wrong, this law also classifies the liability in two similar but distinct categories namely, strict liability and absolute liability. In strict liability, a person is held liable for a wrong irrespective of his intention towards his commitment. A person can obtain some defences to escape his liability. While, in absolute liability, an entity is held liable irrespective of its intent just like strict liability but it cannot escape its liability. Liabilities are the founding stone of Tort Law, but there are other theories also like Corrective Justice Theory where tort law is divided into two i.e., first-order and second-order duties. The retributive theory says that the wrongdoer must suffer for his wrong committed. “An eye for an eye” was the foundation of Retributive Theory. These theories were the founding stones of Tort Law as well as also for many other categories of law found in today’s world.


BIBLIOGRAPHY

  1. Coleman, Jules, Scott Hershovitz, and Gabriel Mendlow, Theories of the Common Law of Torts, The Stanford Encyclopedia of Philosophy (Winter 2015 Edition), Edward N. Zalta (ed.), (Nov. 2, 2021, 03:12 PM https://plato.stanford.edu/archives/win2015/entries/tort-theories/

  2. Weinrib, E. J. (2002), Corrective Justice, in a Nutshell, The University of Toronto Law Journal, 52(4), 349–356,(Nov. 07, 2021, 06:26 PM) https://www.jstor.org/stable/825933origin=crossref

  3. Walen, Alec, Retributive Justice, The Stanford Encyclopedia of Philosophy (Summer 2021 Edition), Edward N. Zalta (ed.), (Nov. 02, 2021, 06:48 PM) https://plato.stanford.edu/archives/sum2021/entries/justice-retributive/

506 views0 comments

Recent Posts

See All

Comentários


bottom of page