Notes and Comments:
1.Why do we need the tort law at all? What does the tort law do in our life?These are the fundamental,or even philosophical questions that will not only affect our study of the subject,our future practice,but also the social norms that influence the standard of our behaviors.If we get a wrong message,it will spread out to society.For example,would you help an old person when s/he fell down?Dare you? It would almost be certain if the fallen guy sues you for injuries,and you cannot prove that it is not you who causes his fall.
2.When an old person falls down,you try to help.Result: he blames it on you to have caused the fall,thence,the injury.That’s not disastrous as every injured person would try to blame it on someone,anyone,or whoever he can get hold of.What’s disastrous is that the “law” would back him up by a ruling that “if you cannot prove that you are not wrong,you are then wrong.” What would be the legal basis for this kind of logic reasoning? “Fairness”,as some legal scholars suggested? Where is the fairness.We cannot simply name unfairness to be “fairness.”
3.These scholars quoted above seem to be preoccupied with compensating an injured person.Of course,we all sympathize with the injured.But tort law cannot be stretched so far as to reallocate resources from some private individual unrelated,unconnected and undetermined with any possible wrongdoing;tort law is not about compensation without liability.That’ll be insurance law.We should not get confused about this.
4.To make a wrong judgment in a private injury case is worse than hurting an innocent person,because tort law would set standard of social norms;it tells people how to behave.Today,how many people would “dare” to help? The result would almost be certain that the Good Samaritan would get himself entangled in the muddy water.
5.Note,however,that this kind of court ruling is a bad law in its worst form,and merely the opposite of the Good Samaritan Law.The Good Samaritan Law is designed to punish those who refuse to help or rescue even though it costs them little or nothing,or to protect those who do help or rescue.The court rulings seem to punish the Good Samaritans by telling people: you are to help at your own risks.
6.Kangaroo Court (Wikipedia.com)
A kangaroo court is a judicial tribunal or assembly that blatantly disregards recognized standards of law or justice,and often carries little or no official standing in the territory within which it resides.Merriam-Webster defines it as “a mock court in which the principles of law and justice are disregarded or perverted.” The term may also apply to a court held by a legitimate judicial authority who intentionally disregards the court’s legal or ethical obligations.
A kangaroo court is often held to give the appearance of a fair and just trial,even though the verdict has in reality already been decided before the trial has begun.Such courts are typically run by authoritarian governments,and can also be found in rural areas where legitimate law enforcement may be limited.In particular,they are still common in rural India,where they are referred to as “Khap Panchayat.”
7.Judicial Discretion (Wikipedia.com)
Judicial discretion is the power of the judiciary to make some legal decisions according to their discretion.Under the doctrine of the separation of powers,the ability of judges to exercise discretion is an aspect of judicial independence.Where appropriate,judicial discretion allows a judge to decide a legal case or matter within a range of possible decisions.
However,where the exercise of discretion goes beyond constraints set down by legislation,by binding precedent,or by a constitution,the court may be abusing its discretion and undermining the rule of law.In that case,the decision of the court may be ultra vires,and may sometimes be characterized as judicial activism.
Chief Justice John Marshall wrote in Osborn v.Bank of the United States (22 U.S.738 (1824)):
Judicial power,as contradistinguished from the power of the laws,has no existence.(https://www.daowen.com)
Courts are the mere instruments of the law,and can will nothing.When they are said to exercise a discretion,it is a mere legal discretion,a discretion to be exercised in discerning the course prescribed by law;and,when that is discerned,it is the duty of the court to follow it.Judicial power is never exercised for the purpose of giving effect to the will of the judge,always for the purpose of giving effect to the will of the legislature;or,in other words,to the will of the law.
8.What is justice? Is getting the injured compensated justice,or getting the wrongdoer pay for the consequences of his wrongdoing? Well,as the old saying goes,justice is in the eye of the beholder.
There was an anecdote between Justice Holmes and Judge Learned Hand having dinner in New York.After the dinner,while Justice Holmes was leaving,Judge Hand said to him,“Do justice,Justice.” Justice Holmes stopped,turned around,and said,“That is not my job.My job is to apply the law.”
It sounds perfectly alright to argue that the ultimate purpose in the study and administration of the tort law,in fact,any law,is to do justice.But justice does not mean that every plaintiff vindicate;it does not mean that every loss is to be compensated;it does not even mean that our sympathies for any apparent victims have to be sustained.
When we look at a particular victim who is injured in a particular case,we have to first of all determine if indeed what he says is true of the facts in that case.Suppose it is,we then have to determine where we should draw the line – which is the law – to determine who is right and who is wrong,not to be hindered by our own personal sense of what is right and what is wrong.
This could also teach us something in reading cases: do not be bothered with the outcomes of the cases (who wins and who loses).The more important thing is to find out how the problem is identified and solved;can the rule established by the case be applied to more future cases? Or,we may have to face the result that what we say as the “law” will not be followed,or even called the “bad law,” as in the ashtray case where the court decree was simply ignored by the majority of the residents,and faced with public humiliation by being dismissed as despicable.
[1]This took place in 2000,about a decade before the current tort liability statute of China was enacted.
[2]See,Wang Liming,Defining tort law,lecture on cutting edge issues of civil and commercial law,Sept.10,2008,reproduced here in the Supplemental Reading II,available at http://www.lawinnovation.com/html/zgfx50rlt/598285703153.shtml.
[3]It is important to note that in China,at least before the enactment of the Tort Liability Law,every wrongdoing resulting in personal injury is treated as a criminal violation for which a sanction of prison term from a few months to a few years would be imposed.
[4]Butch Cassidy and the Sundance Kid is a must-see 1969 legendary and classic Hollywood movie,starring Paul Newman,Robert Redford,and Katherine Ross,based on a romantic story of two western outlaws who robbed banks and the Union Pacific Railroad,and ran successfully ahead of their trackers.The movie became an immediate hit,and in my view,the best one ever made in Hollywood.
[5]The plaintiffs proposed the following jury instructions: When the evidence shows that a driver of a motor vehicle on a public street or highway loses his ability to safely operate and control such vehicle because of some seizure or health failure,that driver is nevertheless legally liable for all injuries and property damage which an innocent person may suffer as a proximate result of the defendant’s inability to so control or operate his motor vehicle.
This is true even if you find the defendant driver had no warning of any such impending seizure or health failure.