In this paper I will be discussing George P. Fletcher’s “paradigm of reciprocity”. I will discuss what two issues the paradigm specifies and how they are treated by the paradigm. I will assess how the treatment of the issue is different from that of the wealth maximization approach. I will also look at how the paradigm makes sense of both fault and strict liability. Lastly in this paper I will discuss why I agree with Fletcher’s stance and a criticism one might have for it. Fletcher’s paradigm of reciprocity is a model that describes when liability for an act is shifted from one party to another – in the case of tort liability from victim to defendant. The paradigm discusses two issues. The first issue is whether or not the victim has a right to recovery from an injury. The outcome of the first issue – whether or not the victim has a right to recovery – is dependent on both the actions of the victim and the danger posed by the defendant at the time of the injury. If the actions of the victim posed as much danger to the defendant as the actions of the defendant posed to the victim then there would be no transference of liability. Both parties would be at fault in this case. However, if the actions of the victim did not pose as much danger to the defendant as the actions of the defendant posed to the victim then liability would be transferred to the defendant. When the danger that each party exhibits on one another is unequal there has to be transference of liability. This leads into the second issue that is discussed by the paradigm. The second issue is whether or not the defendant has an obligation to reimburse for an injury. The outcome of this second issue depends whether or not it is rational for the defendant to have to pa... ... middle of paper ... ...nly focuses on the individual. The paradigm only considers the actions of the individual it does not take into consideration facts outside of the case that might have affected the actions of the individuals. The paradigm also does not take into consideration the outside world. The affect that the actions of the actors might have the entire society are not taken into consideration. Neither is the decision of the case and its affect on the society taken into consideration – for example it does not consider whether or not the decision brings about the greater utility for society. In conclusion, Fletcher’s paradigm provides another way to look at liability. In this paradigm, he is more concerned with the case itself than if it brings social utility. Fletcher also looks at the actions and risks that both parties pose on one another and uses this to determine liability.
In the video of the case of People v. Vasquez, there was evidence of shared responsibility by two of the victim’s family members. Shared responsibility, by definition, is the perspective that the offender does not bear total responsibility for the criminal act, and that some of the blame falls either on the victim or the social system, or both. Summed up, shared responsibility is a possible explanation for why a particular person was harmed by a certain offender. (Karmen, Crime Victims: An Introduction to Victimology,
The eighth section is the conclusion of this thesis that summarizes the key ideas and findings of the work, identifying the fair equity value of
Perry, Ronen, ‘The Role of Retributive Justice in the Common Law of Torts: A Descriptive
For the purpose of this essay, this writer will define reciprocity as the expectation or ‘norm’ that people will respond to another party in the same manner in which the other party has treated them. So, for practical purposes, this means rewarding a good deed with another good deed, and punishing a bad deed with another bad deed. Of course, in order for a system like this to produce a favorable outcome, both groups must start out with good deeds, otherwise the system will only lead to relatively permanent hostilities.
“Some people willingly put themselves in life-and death situations” (The Cost of Survival 126-127). Since it was their choice, people should be accountable for their actions in life or death situations.
...Although this theory is very rational and scholarly it again asks for a very ideal situation of fairness where the chances of both disputants coming to these terms seems unattainable. Also, it is quite obvious that what one sees as fair, another may not. All the same, the theory by itself provides great principles for negotiation that if followed honestly by both parties would most likely lead to a satisfactory agreement.
... school of thought argues for the proportional application of sanctions, that is the punishment should be in accordance with the moral culpability of the individual, while the other school of thought submits that the passing of penal sanctions on a fellow human being is itself a wrongful act. With regards to the first school of thought, the steps to consider would be the quanta of punishment necessary to have a deterrent effect on the individual and on society. While the other school of thought needs to consider what the benchmark for justice really is, and the quanta of punishment required that will help in having a preventative effect and have a similar deterrent effect on society as a whole. Thus the idea such as rightful retribution in cases where self-defence plays an equally vital role in assessing what justice allows due to the prevailing morals of society.
Retributivism is a theory of punishment consistently linked to the concept of vengeance. Vengeance is an act of retaliation as retributivism is a punishment inflicted on individuals who have engaged in a criminal act and are given a punishment in proportionate to the crime they have committed. Although, retributive justice differs from vengeance, this theory and concept are constantly perceived as having the same meaning. In the excerpt, Punishment, Brooks highlights the key differences between retributivism and vengeance and provides a more thorough understanding between this
Rectificatory justice deals with and fixes the unequal distributions of gain and loss arithmetically between two individuals. This specific justice is used in cases of injustice involving voluntary actions such as trading or involuntary occurrences such as assault or theft. Like current day, the justice is served in court where the judge restores a mean between the gains and losses of both individuals. Reciprocal justice, on the other hand, does not fit either distributive or rectificatory justice. Aristotle distinguishes reciprocal justice by utilizing an example that shows that if someone has wounded an official, he ought not to be wounded only but punished also. Further, if an official were to inflict a wound on someone, he should not suffer the same injury in return. However, it is never stated that the official is not open to be reprimanded. This example shows that the Pythagorean conception of reciprocity, “an eye for an eye”, is excluded for the official is not wounded in return. If the official were to be injured in return and the non-official were to not be punished in addition, this would fall into the category of rectification. Rectification requires equal return to both parties and this example clearly shows that the official to not be struck back while
When considering the subject of this week’s assignment, reflecting on personal history and professional situations did not yield an event that would be applicable to the topic of torts. Therefore, the subject chosen for the topic is that of an accident that my mother was involved in several years ago. The accident occurred as she was driving along Kipling Street in Lakewood, Colorado, on her way home from an appointment. A front end loader that was being used at a construction site on the side of the road, suddenly entered the traffic lane she was driving in. Her vehicle was partially lifted up off the roadway and was literally split open on the passenger side, totaling the vehicle in the damage that resulted from the collision. The driver of the heavy equipment chose to then back-up into the construction area. Physical injury also resulted as my mother broke one of her wrists, the exact one that had recently undergone surgery to repair injury that had resulted from a prior injury.
In this theory, therefore, what will make a consequence better is if it is good for the agent. The actor in this theory is perceived to carry out only those actions that will bring him the greatest consequences, since the person does not care for the welfare of others. In this maximizing act egoism theory, people have the altruism view in which the actor evaluates whether a consequence is good or bad depending on the influence it has on the people special to him such as family members, colleagues, and friends. The other form of agent-relativity is the one that looks at the relationship between an agent and their actions. The opposite of agent relativity is agent neutrality, which is similar to all individuals. In many cases, consequences are evaluated in terms of agent neutrality and not agent relativity (Hooker
These elements suggests that defense to the liability for unlawful activity where the conduct cannot be avoided and one is justified in the particular conduct because it will prevent the occurrence of a harm that is more serious.
The concept of proportionality, while protecting the subjective interest of the wrongdoer against over-reaction, also expresses the need of the international legal order to establish a legal process regulating the nature and intensity of the response to the wrongful conduct.
Two different cases can be made. One is based on justice and the nature of a
Introduction Tort law reform continues to be a heated debate between opposing sides. The purpose of this paper is to give a basic understanding of tort law and the effects it has on the parties involved. First, a simple explanation of tort law will be reviewed. Next, a brief explanation of current tort reform will be presented. Finally, opposing viewpoints about tort reform will be related.