Abstract

From the perspective of corrective justice, I examine some of the philosophical implications of this century's expansion of tort liability in products liability cases. Extending H. L. A. Hart's criticism of strict criminal liability to the tort context, I argue that failure to ground liability in fault is morally objectionable. ;When the law imposes duties which people cannot reasonably be expected to fulfill, and when, therefore, people cannot predict the likelihood of their being held liable, the law fails to respect them in their capacity as choosing beings. Tort liability not grounded in the breach of a legal requirement fails to treat both plaintiffs and defendants as beings with the capacity for choice and leaves them less able to avoid liability. ;Examining the history of tort, I argue that, until this century when a public policy rationale was introduced for holding manufacturing defendants liable, concern to ground liability in fault has dominated tort law. I suggest that in many so-called strict products liability cases the manufacturer's misrepresentation of its product actually serves to ground liability in fault; however, those cases in which liability is justified by considerations of promoting the public good represent a departure both from legal precedent and from the principles of corrective justice which inform tort law. ;The current willingness of courts to ground liability in public policy considerations contravenes not only the law's respect for individuals as choosing beings, but also the view of tort as embodying corrective, rather than some form of distributive, justice. ;Corrective justice seeks to restore wrongdoers and wrong-sufferers to the state of equality which the wrongdoing violated. This equality may be understood in terms of both the moral equilibrium which exists between moral agents and Ronald Dworkin's notion of equality qua treatment as equals. Contrary to Jules Coleman, who believes that the annulment of both undeserved and wrongful losses is within the province of corrective justice, I argue that only those gains and losses which arise though wrongful conduct are the proper subject of corrective justice and of tort law