Theory of tort liability based on corrective justice and its application in the context of Chinese tort law

Abstract

Abstract: Contemporary scholars have sought to explain tort law concerns using Aristotle's concept of corrective justice. Corrective justice, as interactional justice, has a natural advantage in explaining tort law, and it adequately explains the explanatory power and justification of the nature and characteristics of private law for tort law, i.e., how Aristotle's corrective justice theory can be applied to contemporary tort law across time and space. The theoretical foundation for interpreting tort law in terms of corrective justice is found in the reciprocity of relationships in corrective justice, where the relationship between plaintiff and defendant, between damage and liability, is contingent upon the correspondence between what the plaintiff loses and what the defendant gains, that is, between the plaintiff's rights and the defendant's obligations. In Kant's theory of rights, such correspondence expresses the philosophy of how free people get along. The principle of right requires that the freedom of each individual to act should coexist in harmony with the freedom of others to act, and the inequality that corrective justice deals with is the problem of the inability to harmonise between free acts. The spirit of the rights doctrine is to tolerate the free behaviour of others, but once this freedom crosses the line it enters the realm of infringement. The principles of corrective justice express a specific notion of fairness and liability for the outcome of one's choices, and tort law embodies these notions. While corrective justice is a significant and autonomous moral ideal in and of itself, liability theory should be morally neutral; tort law interpretation does not depend on corrective justice's moral superiority, and corrective justice does not interpret tort law based on its moral worth. Tort law is understood in the light of the concept of corrective justice, based solely on an interpretation of the conceptual and reasoning structure of tort law. The normative structure of tort law describes the characteristics and limitations of tort liability in a unified way: with correlativity at its core, it contains several groups of concepts such as victim-perpetrator, actus reus – the result of damage, normative gains - normative losses, etc. The former is an ex ante perspective, risk being a relational concept in itself, linking the act (potential danger) and the sufferer (potential loss), and perfectly accommodating the rules of both fault liability and strict liability. an ex post perspective, when the act and the loss have occurred and the link is established objectively. By establishing a tort law model based on the corrective justice theory and emphasising risk/duty of care and causation, we can better understand the connotation of modern tort law and identify and eliminate rules that do not belong in tort law, thereby avoiding systemic conflicts, rule confusion, and even application confusion in practice.