The Role of Retributive Justice in the Common Law of Torts: A Descriptive Theory

Abstract

This article is the first academic attempt to explain in a systematic manner how the third-form-of-justice, usually thought of as one of the theoretical foundations of criminal law, operates within the law of torts. Tort jurisprudence is definitely not the natural habitat for retributive concerns. Since retributive justice is technically inconsistent with the corrective structure of tort law its role is (and probably ought to be) very limited. The article first explains the notion of retributive justice and defends the view that it constitutes a third form of justice, distinct from the classical Aristotelian forms. It then rejects monistic retributive theories of tort law, and argues that retributive justice penetrates the corrective pattern of tort law only within two conceptual paradigms: (1) the prevention of abominable disproportion paradigm, and (2) the preservation of criminal justice paradigm. It subsequently demonstrates this theory in a methodical manner with notable examples from various common-law jurisdictions.