Torts - Egalitarianism And Distributive Justice

Questions: Read James Gordley, Tort Law in the Aristotelian Tradition in David G. Owen, Philosophical Foundations of Tort Law, (Oxford, 1995) 132. Note also that Peter Cane has written that corrective justice provides the structure of tort law within which distributive justice operates. Cane, Distributive Justice in Tort Law, New Zealand Law Review [2001], 401 at 413. Using the above as a starting point, analyse and discuss the relationship(s) between distributive justice and commutative justice in the following cases: Case 1 (Michigan Court of Appeals, USA): Taylor v. Kurapati, 600 N.W.2d 670 (Mich. App. 1999), 236 Mich. App. 315 available at https://www.leagle.com/decision/19991270600NW2d670_11238 Case 2 (High Court of Australia): Harriton v Stephens (2006) 226 ALR 391; [2006] HCA 15 (9 May 2006), available at https://www.austlii.edu.au/au/cases/cth/HCA/2006/15.html? Answers: Introduction: Distributive justice is concern about the distribution of socially allotted goods in a particular society. A society where supplementary disproportion in result does not take place would be well thought-out in a society directed by the doctrine of distributive justice[1]. The perception contains the obtainable number of goods, the procedure by which goods are to be dispersed, and the resultant allotment of the goods among the members of the entire society[2]. Where as a principal of commutative justice specifies that the process by which an individual ought to be treated in a provided category of action as well as transactions. In the concept of commutative justice the right of a person to be treated equally with others in the same class is prescribed . In this context various aspects relating to the distributive justice as well as the commutative justice are going to be discussed, its applicability, relevant measures and other collective essential elements of these two important con cepts with reference to two given case histories. Case 1: Here in the mentioned case, the plaintiff has filed a suit against the defendant who is a physician, on the ground that at the time of pregnancy of his wife, the defendant has tried ultrasound upon the pregnant lady by virtue of that the child took birth with several disabilities. The parents of the child that is the plaintiff filed the suit against the defendant with some sought of emotional aspect and the suit has been dismissed by the Wayne Circuit court, on the ground that in this regard there is no scope for emotional aspects, here the ultrasound was given with the due consent of the concern party, so the defendant cannot be held responsible for that [3]. The plaintiff approached to the appellate court of law. Under that scenario the cause of action arose on the basis of that the physician has not suggested the parents of the child about the possibility of disability at the time of taking birth. The law made in this regard that the woman will be at a liberty to decide her pregna ncy, whether she would like to keep the child in womb or she would like to terminate the pregnancy is totally depends upon the discretion of the concern woman. Here the doctrine of commutative justice came into action. The law prescribed that every woman shall have the liberty to determine her pregnancy, whether the child in her womb shall be aborted or not that also is decided by the woman herself. So, in this case the principal of commutative justice is applicable as to the entire to woman in general throughout the territory of the concern nation[4]. With this regard all the woman possesses a right to terminate her pregnancy. In a collective nature it can be observed that in accordance with the rule of commutative justice the right of the woman shall be consider a general right for all the woman[5]. All of the pregnant woman shall be treated equally as to implementation of their rights. Justice is not eternal; the scope of the doctrines relating to justice may change as per the situation demands[6]. Here the collective rights of the women in general is considered as per the rules of the commutative justice but in future it may be changed but not in suo moto manner it have to be changed in another case decided by the court of law with competent jurisdiction[7]. Case 2: The plaintiff, Alexia Harriton, a 25 years old lady with brutal innate disabilities that had been inflicted by infection of her mother along with therubella virusat the same time as pregnant with her.These disabilities made Harriton not capable to take care of herself. The respondent, Mr. Paul Richard Stephens, was a famous doctor, he was appointed for the treatment of Harriton's mother at the time of her pregnancy. Later than reviewing and conducting pathological investigations, the respondent advised the pregnant lady that she do not have any virus known as rubella virus.The mother of Harriton asserted that she would have like to terminate her pregnancy if it was known to her that her child is going to be disabled. At the time of litigation the plaintiff argued that the doctor has not taken proper care of the pregnant lady and has not examined her properly, for that purpose he was unable to disclose the fact that the child in her womb shall be a disable child. This was the case of wrongful life, but it has occurred due to the negligence from the part of the concern doctor. Justice Studdert has dismissed two out of three cases relating to wrongful life cases pending in front of him this case was also one of them; thereafter the plaintiff approached the appellate court of New South Wales. The court of law dismissed the appeal with two third majorities. In accordance with the statement of the Chief JusticeJames Spigelman, the suggestion that the responsibility of a doctor to an unborn baby extensive to carry out that, correctly completed, would show the way to the annihilation of the pregnancy "be supposed to not be acknowledged as it does not replicate principles usually, or still widely, considered in the population." [8]. Here in this case the principal laid down by the doctrine of distributive justice comes into action. The doctrine specifies that proper distribution of goods among the members of the society. In this case the goods does not signify any product or any commodity, here it signifies the right of the concern people. The right of the pregnant woman that is the mother of Harriton, she had the right to know about the disabilities of the child in her womb but that right has been infringed by the doctor. In general, the rights which are going to be distributed among all the women in the society, after settling down the subject matter in dispute. The right that shall be adjudicated by the court of law with competent jurisdiction shall bind all other inferior courts as to its applicability[9]. In this regard the doctrine of commutative justice is also applicable to a certain extend in the course of the litigation procedure. In this case commutative justice does not mean the actual way of treating a woman in the course of her treatment in pregnancy period. Regardless it deals with rights of a woman in the course of her pregnancy while having treatment from a recognize doctor. Conclusion: After the above discussion it can be summarized that every time the doctrine may not be applicable as to its literal meaning, in some cases it is implied in nature. In these two mentioned cases, the major concern is the rights of the women which have been infringed. All the term shall be meaningful to its grammatical or literal meaning is not correct, in this case both the doctrine of distributive justice as well as commutative justice is applicable in an implied manner. If anyone would like see the implementation of the actual literal meaning of those doctrines then it would be next to impossible as in this case the doctrine is applicable upon the right of the pregnant woman not upon any goods or commodities[10]. Reference [1] Tsachi Keren-Paz, Torts, Egalitarianism And Distributive Justice (Ashgate, 2007).[2] Julian Lamont, Distributive Justice (Ashgate, 2012).[3] Hans-W Micklitz, The Many Concepts Of Social Justice In European Private Law (Edward Elgar, 2011).[4] Theo Papaioannou, Reading Hayek In The 21St Century (Palgrave Macmillan, 2012).[5] Carl Knight and Zofia Stemplowska, Responsibility And Distributive Justice (Oxford University Press, 2011).[6] Damien Conus, Commutative Justice (2001).[7] Thomas F McMahon, Ethical Leadership Through Transforming Justice (University Press of America, Inc., 2004).[8] Eric Laws, B Prideaux and K. S Chon, Crisis Management In Tourism (CABI, 2007).[9] Prue Vines, Law Justice In Australia (Oxford University Press, 2005).[10] Ellie Vasta and Stephen Castles, The Teeth Are Smiling (Allen Unwin, 1996).