Trial by Fury: Restoring the Common Good in Tort Litigation

By Ronald Rychlak

American tort law has become the subject of public scrutiny in the last decades. The criticism cast against it is that its current state bears economic incentives for abuse. But the tort law system engenders an even greater evil: the perversion of the human person. Acts of injustice tolerated by a permissive tort system have facilitated the near obliteration of forgiveness and reconciliation, of kindness and goodwill, and they have thus cleaved a chasm in human fellowship. The tort system has thus forsaken its proper role as arbiter of justice in service of the common good. Instead, it is distorting responsibility into blame, and human dignity into parasitic opportunism. This monograph not only points to the gravity of this moral effect of tort law on the human person, but it attempts to lay the ground for restoring the common good in tort litigation.

• Language: English
• Publisher: Acton Institute
• Release date: Jun 21, 2012
• ISBN: 9781880595671

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Trial by Fury

Restoring the Common Good

in Tort Litigation

Ronald J. Rychlak

Christian Social Thought Series

Copyright © 2012 by Acton Institute

An imprint of the Acton Institute for the Study of Religion & Liberty

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CONTENTS

Foreword

I. The Loss of Fellowship

II. Torts and Justice

III. Modern Developments in Tort Law

IV. The Economic Impact of Tort Law

V. The Moral Impact of Tort Law

VI. Restoring the Common Good in Tort Litigation

Notes

References

About the Author

FOREWORD

What is the law? Most of us do not give this question much consideration, if any at all. As a result, we fail to recognize that the law is understood differently in different societies. The differences lie, ultimately, in the understanding of justice and its relation to the law.

Consider, for example, a society in which justice is understood as that which is commanded by an authority. This understanding of justice by executive decree is not only true of absolute monarchies and dictatorships. Socialist societies, too, were subjected to this monopolist view of justice. Despite the human-equality claims of socialism, we have witnessed throughout history that the law in all socialist nations was—and, sadly, continues to be in the two last socialist strongholds: China and Cuba—consistently arbitrary, unequally applied, and retaliatorily brutal against proponents of alternative political systems. For all of these societies, the law amounts to nothing more than legal positivism. But there are more varieties of law.

Consider now those societies that have adopted what is referred to as a Roman system of law. Such systems are constituted by a rich legacy of Justinian texts, canon law, feudal law, royal law, and the political and ethical framework of ancient Western philosophy. Despite this seemingly chaotic combination, natural law emerged as the unifying criterion for the morality of the law itself. The criterion for all individual laws was their foundation in natural law. As a result, the concept of the rule of law was born. The rule of law means precisely a rule by law. In other words, the sovereign of a state is given not only a right to establish the law, but also the duty to be bound to that law. More importantly, since citizens grant voluntarily such a right to a sovereign, the source of the authority of the sovereign is the citizenry. Over time, however, the concept of the rule of law in Roman-law societies has departed from natural law altogether. The criterion of natural law is now replaced by the prevailing, sometimes conflicting, beliefs of the citizenry. The belief in the absolute equality of all individuals, for example, is held simultaneously with the belief that the redistribution of wealth from one sector of society to benefit another sector of society is just. Perhaps the greatest divorce from the natural law is evident in Latin America, where the rule of law is observed neither by sovereigns nor by the citizenry. Hence, corruption has become institutionalized and accepted. We have seen an argument for this case in the preceding issue of the Christian Social Thought Series, titled A Theory of Corruption.

It is thus logical that we now turn our attention in this issue to the law itself in relation to justice. The deficiencies of the monopolistic and the arbitrary views of justice discussed so far can be understood more clearly as deficiencies in light of the commutative and distributive senses of justice advanced by Thomas. A broad and detailed examination of this was presented in a previous issue of the Christian Social Thought Series, titled Doing Justice to Justice. It is important to consider, then, how well does Thomistic justice or, more appropriately, how well does the Christian view of justice, fare in modern legal systems.

Arguably, the common law is a good case study, for it does not suffer the deficiencies of monopolism or arbitrariness because its principal guide is custom. In the common-law system of justice of the United States, the law has endeavored to discover tacit knowledge and informal practices. This approach has been quite fertile in the ever-changing fast pace of the last century, a pace that will most likely accelerate in this new millennium. The discovery procedure of common-law reveals rightness or wrongness of particular situations rather than imposing rigid boundaries for these.

But the common-law system is not perfect, for it is a double-edged sword. Just as it can slice discrete customary practices for clearer examination, it can also demarcate incentives through the doctrine of precedent for the emergence of customary practices that have a legal history of reward. Not only Americans but individuals around the world are aware of the now customary practice in the United States of litigation for profit. Tort law is now so prominently at the forefront of public concern that it has reached the critical point of formal demands for reform. The principal criticism of the present state of American tort law is that it has an adverse effect on the economy: rising prices, increasing costs of insurance and of healthcare services, costly delays in court proceedings because of backlogged dockets, and so on.

What has not been articulated yet is that such a state of affairs is shaping new customary practices in the American society. This is not an economic, but a moral point. No economic effect of tort law can compare to the moral effect it has on the human person because the latter impacts his being at its essence. It is not that there is one morality for formal legal matters, and a personal morality for all other matters, such that man may step in and out of each without any transformation of character or effect on matters concerning last things. But it is not difficult for individuals to delude themselves into accepting two kinds of compartmentalized moralities. The fact of the matter is that the practice of employing tort law for profit is commonly accepted. There is no social stigma attached to the practices of seeking blame, of denying responsibility, of taking the role of victim because such behaviors are not only expected, but they sustain the litigation trend. The justification is seductive: justice for the have-nots is finally here. But this understanding of justice is perverse, for it does not seek just compensation. Instead, forgiveness gives way to greed and this turns persons into adversaries and destroys fellowship. In turn, kindness and goodwill are curtailed by suspicion and fear.

It is important to clarify that the concern is not merely a metatheoretical analysis of custom and, thereby, of the tort law system. The significant focus of our analysis in this monograph is the human person. Nonetheless, in order to understand how a legal system would provide the incentives for moral corruption, it shall be important to lay the ground of the American tort law system. Those of us who are neither attorneys, more specifically litigation attorneys, nor otherwise part of the civil litigation system, are not aware of the mechanics of the system. The author of this monograph, Ronald Rychlak is an attorney and a professor of law, who has aptly brought together law, economics, and Christian social thought for this monograph. He presents us with a thorough and accessible introduction of the tort law system. Additionally, in order adequately to compare the gravity of the moral effects of tort litigation for profit against