Academic literature on the topic 'Tort; Retributivism; Deterrence theory'

The purpose of these studies was to examine the principles people engage in when thinking about punishment, using a new measure (the Punishment Orientation Questionnaire [POQ]). Although traditional conceptualizations of punishment divide it into utilitarianism (e.g., deterrence) and retributivism (“eye for an eye”), we argue that a more useful metric of lay attitudes concerns orientation toward or away from punishment. After pilot testing and factor analysis, we used item response theory to assess four scales: prohibitive utilitarianism (limiting punishment based on utility), prohibitive retributivism (aversion to punishing innocent people), permissive utilitarianism (willingness to give strict punishment based on the benefits thereof), and permissive retributivism (desire for just deserts). The POQ showed good predictive validity for capital jury eligibility and sentencing recommendation in response to a death penalty trial stimulus. This study provides a better understanding of how classic punishment philosophies manifest among laypersons and contributes data outside of classical test theory.

Corporations are subject to criminal law and sentencing provisions in most legal jurisdictions in the world. This article considers how leading punishment theories apply to corporations. Corporations are, this article argues, group agents with the capacity to make moral judgments. It follows from this that retributivism, the dominant theory of punishment for moral agents, ought to be understood as a component justification of corporate punishment. However, a more fundamental problem arises in the attempt to apply punishment theory to corporations: punishment involves suffering, and corporations cannot suffer in the relevant sense. This means that corporations cannot be punished, though they can be harmed. I explore the possibilities of simply abandoning the word ‘punishment’ and creating sentences that are not at the same time punishments. This has the drawback of limiting what the criminal law can accomplish when it comes to addressing corporate malfeasance. I find that at least one practical consequence for corporate sentencing follows from this theoretical distinction: sentencers have more legitimate authority to raise upper limits for sentences for corporations than they do for individuals, though there are still principles that dictate the need for upper limits. Despite the impossibility of true punishment, the theories of retributivism, deterrence and rehabilitation are still relevant when sentencing corporations.

The relevance of the problems of tax compliance and tax control is due to the character of tax relations and the versatility of the subjects of these relations. Tax control strategies determine the behavior of taxpayers. This study makes it possible to determine the uncertainty regarding various types of tax compliance in the formation of state tax control strategies. The article substantiates the priority of theories of tax compliance in relation to various strategies of state tax control. This study is based on the institutional-tort approach, systematization and comparative analysis. Tax control is considered as a mechanism for influencing the behavior of taxpayers through economic and non-economic deterrence. The results reflect the specifics of the theoretical basis of each type of tax control strategy. Three key theoretical concepts have been singled out: containment theory, behaviorism theory, signal theory. And their corresponding tax control strategies are enforcement strategy, service strategy, trust strategy. Similar features and peculiarities, pluses, minuses of motivational approaches are disclosed. The necessity of their productive combination in modern conditions is determined. The complex combination of the considered theoretical basis in a unified strategy of state tax control allows you to take into account the maximum range of factors of tax compliance, tax tort to prevent and exclude opportunistic behavior. The substantiated priority of tax compliance theories as the basis of various tax control strategies in tax administration creates the basis for the search for new motivational tools in improving tax relations at different stages of society development.

This article proposes a theory' of vicarious liability which attempts to explain the central features and limitations of the doctrine. The main premise of the article is that the common law should continue to impose vicarious liability because it can co-exist with the current tort law regime that imposes liability for fault. The author lays out the central features of the doctrine of vicarious liability and examines why the leading rationales (such as control, compensation, deterrence, loss-spreading, enterprise liability and mixed policy) fail to explain or account for its doctrinal rules. The author offers an indemnity theory for vicarious liability and examines why the current rules of vicarious liability are limited in application to employer-employee relationships and do not extend further. It is proposed that the solution to the puzzle of vicarious liability rests within the contractual relationship between employer-employee and not the relationship between the employer and the tort victim. The proposed indemnity theory implies a contract term that indemnifies the employee for harms suffered in the course of his or her employment. Vicarious liability then follows from an application of the contractual concepts of subrogation and indemnity to the particular relationship between employee, employer and tort victim. Finally, the article discusses and attempts to resolve the possible criticisms that may follow the indemnity theory, including concerns that it is in conflict with leading decisions, including Lister v. Romford. Bazley v. Curry and Morgans v. Launchbury.

Abstract Instrumentalist ideas have long been prominent in torts scholarship. Since the rise of legal realism, discussions of deterrence, compensation, the minimization of accident costs, and the distribution of losses have dominated scholarly discourse. In the past several decades, however, wholesale rejections of instrumentalist tort theory have arisen. The most uncompromising of these views rallies around the avowedly formalist battle cry that tort is “private law”. Ernest Weinrib’s elegant and influential book, The Idea of Private Law, declares its allegiance to that thesis in its title, and the idea figures almost as centrally in Arthur Ripstein’s recent and important Private Wrongs. Theorists who rally around the banner of “private law” claim that tort law’s governing principles of right and responsibility tumble out of the field’s characteristic legal form. Law, as they understand it, is constitutive of just relations among persons, not an instrument for the pursuit of independently valuable ends. For scholars like Weinrib and Ripstein, “private law” is the Kantian idea of reason that makes our actual law of torts intelligible. The claim that torts is a law of wrongs where persons bring claims in their own names for harms that they have wrongly suffered against those allegedly responsible for those wrongful harms is powerful and persuasive. The claim that the obligations persons owe one another in tort are obligations owed among equal and independent persons is likewise compelling. But theorists of tort as “private law” overshoot the mark by both asking and making too much of form. They ask too much of form when they attempt to make sense of the private law of torts solely in terms of form—eschewing all talk of interests. We cannot understand or justify the law of torts without attending to the interests that it protects. In tort, as elsewhere, rights and the duties they ground protect important individual interests. For example, it is our interest in the physical integrity of our persons that grounds the law of negligence. Theorist of tort as “private law” make too much of form when they present the legal category as its own private fiefdom walled off from surrounding legal fields. For Ripstein and Weinrib, “private law” is its own autonomous domain, sealed off against infection by any legal field whose form identifies it as “public law”. In our law, the private law of torts cooperates and competes with public law institutions as a response to the pervasiveness of accidental harm in an industrial and technological society. It is one way of institutionalizing our interest in safety. Establishing rightful relations among free and equal persons in civil society requires that institutions protect persons’ urgent interests, not just establish their formal independence. The theoretical understanding that we need will recognize that we misunderstand even the private law of torts itself if we sever it entirely from forms of collective responsibility for avoiding and repairing accidental harm with which it competes and cooperates.

The moral justification of punishment is the fundamental concern of this thesis. It is argued that a moral response to crime has to be a civilised response; therefore, the notion of "civility" is defined and discussed. Punishment is then defended in such a way that it accords with being a civilised response to crime. It is argued that in order to be such a response, and thereby qualify as a moral response, punishment must have a certain structure, i.e. it must fulfil seven necessary conditions, which, it is argued, together constitute the sufficient condition for morally justified punishment. In arguing for each of the necessary conditions, different onedimensional theories of punishment are dealt with (retributivism, utilitarianism, deterrence theory, rehabilitationism, a paternalistic theory of punishment, and restitutionalism}, indicating that each fulfils some of the criteria for morally justified punishment. None of the onedimensional theories fulfils all the necessary conditions, however, and hence none on its own fulfils the sufficient condition for morally justified punishment. This is not to argue that a straightforward theory could never on its own fulfil the conditions for morally justified punishment, but I have not been able to conceive how this could be done. The theory I here present is therefore a hybrid approach, incorporating elements of all the above-mentioned theories into a unitary theory. In doing so, it fulfils all the necessary conditions for being a civilised response to crime, thereby fulfilling the sufficient condition too, and hence providing a morally defensible account of punishment. Finally, the question of how this theory can be put into practice is addressed. Because the objective of punishment ought to be a civilised response, thereby benefiting both society as a whole and those being punished and rehabilitated, the thesis may be seen as a progressive synthesis of the various approaches examined.
Philosophy, Practical & Systematic Theology
D. Litt. et Phil. (Philosophy)

Chapter 5 is the first of the three chapters of Playing Fair that make the case for fair play as the basis for a compelling justification of legal punishment. As it was with the discussion of political obligation, so it is necessary to begin this part of the book by clarifying key terms and confronting fundamental challenges to the enterprise of justifying punishment itself. The chapter thus begins with the questions of what is punishment and what are its proper aims. The latter question is usually answered by reference to retributivism and/or deterrence, and I try to place fair-play theory in this context by linking it to communicative theories of punishment while distinguishing it from Jean Hampton’s expressive version of retributivism. The chapter concludes with responses to those who would, for various reasons, abolish punishment altogether.

This concluding chapter looks at the concepts of law and justice. There are two concepts of law: law as principle and law as rule or regularity. The former is normative, while the latter is descriptive. The chapter then considers the concept of justice. In the philosophical theory of justice, one must distinguish among relevant areas of private and criminal law. Retributive justice applies in criminal law, corrective justice in torts, and distributive justice in property law. In all of these areas, the claims of justice face challenges from utilitarian and economic considerations and based on efficiency, for example, deterrence in criminal law, searching for the cheapest cost avoider in tort law, and stability in property law.