Negligence of Substantive Equality Steering
|Keywords||Negligence Formal Equality Substantive Equality|
From the twentieth century to the present, tort law is undergoing a formalequality to achieve substantive equality steering. When discussing this trend, themajority of scholars only stress the rise of strict liability. In other words, it is strictliability that leads the trend and negligence can not pay attention to formal equality.while in favor of such shifts, I am more concerned about the following questions:whether negligence can only reflect the formal equality? Whether negligence isincompatible with substantive equality?According to the mainstream view, negligence keeps the character of formalequality, and its purpose is correcting the imbalance between the interests.Specifically, negligence disregards the parties’ prior statuses for purposes of decidingwhether to impose liability or not. In contrast, strict liability is the product ofmaintaining the interests of the weak and of breaking the principle of formal equality.In the areas of tort law, it is taken for granted that negligence keeps the character ofform equality and strict liability reflects substantive equality.The purpose of this article is to break this traditional pattern and pointed out thatnegligence should and can be keep substantive equality. The concern of substantiveequality requires that in order to evaluate the desirability of an activity, we shouldusually hold the better-off to a higher standard of care than we do the disadvantaged.Once liability is established, the rich victim receives more compensation. Thisprovides an incentive to potential tortfeasor to channel risks as much as they can tothe poor, so that in the event that they are found liable, they will pay the lowestpossible amount. A solution to this problem requires a change in compensation andsome departure from the principle of full compensation. This article is divided intothree parts.The first part describes the understanding of the fault. From a historicalperspective, the fault has gone through an objective to the subjective and to the objective process. As needed, I analyze the subjective fault and objective fault. Then Ipointed that objective fault avoids the shortcomings of the subjective fault but itselfonly focus on the formal equality.The second part addresses the conflict between the objective fault and themodern society the latter emphasizes the substantive equality. It is more important tofind defects of objective fault that when only focus on the formal equality it ignoresfull protection of the vulnerable groups.The last part describes the way to achieve substantive equality through the faultliability. First of all, the concern of substantive equality works at the duty stage as anexcuse for not imposing liability for wrongful activity. In contrast, at the standardstage, it works as a justification for legitimizing otherwise wrongful activity. I arguethat the justifications show a strong preference toward incorporating substantiveequality into the standard of care analysis. I defend the claim that in order to give fullweight to both equality and notions of fault, the standard of care analysis should bereformulated to reflect concerns of Substantive equality and that this should be basedon the distinction between excuses and justification as grounds for not imposingliability. Second, at the stage of compensation, the principle of full compensationgives more compensation to the rich than it does to the poor. This provides anincentive to potential tortfeasor to channel risks as much as they can to the poor, sothat in the event that they are found liable, they will pay the lowest possible amount.