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Morality In the Law of Tort

The word tort is derived from the Latin tortus, meaning twisted. It came to mean wrong, and it is still so used in French: J ai tort; I am wrong. In English, the word ‘tort’ has a purely technical legal meaning – a legal wrong for which the law provides a remedy. But the word ‘tort’ as used in law has various definitions according to different writers. Law of tort is still an unexplored charter or at least not a thoroughly explored one, even till date especially in developing countries. The law imposes a duty to respect the legal rights vested in the members of the society and the person making a breach of that duty is said to have done the wrongful act. Tort is a breach of duty recognised under the law of tort[1].

Whether Tort Law has morality:
Tort Law started just from the morality of the society and has some moral values as its underpinnings. In its most basic terms, the source of tort law is to shield society from chaos and pandemonium by establishing a court in which one individual can bring a claim against another, without resorting to private revenge.[1]Like the morals of society construes that no person should do anything wrong with anyone and if he has done anything wrong, then he must be punished, just to get the victim back to a decent position.

For eg. In Strict liability principle, at large, usually there is not a mistake or fault, rather it is mostly an inevitable accident, but it would be immoral if the person suffered are left as such without providing them any relief.Tort law doesn’t express morality at large nut has a specific structure that a moral account of it must track.

Although Tort law has moral underpinnings, it cant be said that it is wholly based on moral values. In modern day law of tort, it must be noted that the wrongful act or a wrongful omission must be one recognized by law. If there is a mere moral or social wrong, there cannot be a liability for the same.

For example, if somebody fails to help a starving man or save a drowning child, it is only a moral wrong and, therefore, no liability can arise for that unless it can be proved that there was a legal duty to help the starving man or save the drowning child. Another example pertinent where merely breach of moral duty doesn’t held the person guilty would be of a women who falls ill and requests her neighbour B to look after her since she is all alone.

B takes care of 'A' and extends all types of help like giving food and medicines to her and making her comfortable with his presence at the time of need. A recovered after sometime. Once B fell ill, he requested A to help him during his illness but A never acceded to B's request and B due to lack of proper care and help became disabled. Here, it was A's moral duty to look after B but if he doesn’t take care of the lady, he can’t be held liable.

Another situation where the morality aspect is bit sided is as follows:
Suppose A and B are driving negligently and rashly, but due to grace of God, A passed the road safely without causing any harm to anyone but unfortunately B smashed the car into another person C. Now according to modern law of tort , only B is liable because only has infringed the legal right of anyone (in this case C), but if we look at this situation from a moral aspect both should be held guilty because both were doing their work negligently.

Also it is said morally that, the one who have done the wrong deed must face the consequence, but in master servant relationship, in the modern tort law, the master of the servant faces the consequences of the deed done by his servant.

We can conclude with this observation that there may be certain moral wrongs, which may cause damage to others but here law offers no legal remedy; and on the contrary, there are certain legal wrongs which may not cause any loss or damage to another person, but the law provides a legal remedy although there is mere a violation of private legal right. And we can say that tort law is not solely based on morality but is merely a concoction of moral and legal responsibilities.[i]

End-Notes:
  1. Evolution of Tort Law Owlcation - Education, https://owlcation.com/social-sciences/Evolution-of-Tort-Law.
References:
  1. R. K Bangia, The law of torts, including compensation under the Motor Vehicles Act (Allahabad Law Agency) (1995)
  2. Andre Tunc, Tort Law and the Moral Law, 30 CAMBRIDGE L.J. 247 (1972).
  3. Jules L. Coleman, The Morality of Strict Tort Liaiblity, 18 WM. & MARY L. REV. 259 (1976).
  4. Stephen R. Perry, The Moral Foundations of Tort Law, 77 IOWA L. REV. 449 (1992).
  5. Henry E. Smith, Modularity and Morality in the Law of Torts, 4 Journal of Tort Law (2011).
  6. Percy Henry Winfield et al., Winfield and Jolowicz on Tort (Sweet and Maxwell 19)

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