My contribution to the Thematic takes issue with the idea that tort law is there to protect rights and that what is typically called ‘distributive justice’ is not a proper normative standard by which tort law ought to be assessed. I suggest that this idea is misleading for two related reasons. First, it misunderstands its target: theories of ‘distributive justice’ are not theories about distribution, they are theories about the basic social structure. Second, social-structural concerns play an important role in determining the general conditions of moral responsibility and are therefore important elements in explaining when the violation of a right makes an agent responsible to the bearer of that right. If this is correct, theorists who exclude considerations of social justice from the normative standards that apply to tort law not only misunderstand the nature of social justice and its demands, they also have a poor account of responsibility for violations of rights.
Voyiakis, Emmanuel, Rights, Social Justice and Responsibility in the Law of Tort (September 21, 2012). University of New South Wales Law Journal, Vol. 35, No. 2, p. 449, 2012.