Whether Law of Tort deals with morality?

Assignment 2

Submitted by

SHAMBHAVI VATSA
1st year,1stSemester
UID-SF0120074

FACULTY-IN-CHARGE: MR. SAHEB CHOWDHARY

DATE OF SUBMISSION:14-12-2020
 WHAT IS MORALITY?

Morality, in general, means principles concerning the distinction between

right and wrong or between good and bad behavior. It is a particular

system of values and principles of conduct which guides us as to what

extent an action is right or wrong. However, morality cannot have a single

definition as it can be seen in two broad sense i.e. - descriptive and

normative sense.

As per descriptive sense, morality refers to the moral code that a group or

a society follows or what an individual himself follow. Whereas, normative

sense refers to the moral code which is set forth by all lucid and rational

people. There are several scholars who have tried to give several theories

of morality such as: -

1. Freud’s morality and superego1

2. Piaget’s theory of moral development and Kohlberg’s moral

reasoning2

3. BF Skinner’s behavioral theory3

1
Vol.41,DavidH.Jones, Freud’s Theory of Moral Conscience(Cambridge University Press1996.)
2
Roland F.Duska and Mariellen Whelan,Moral development: guide to piaget and Kohlberg(Paulist press, New
York)
3
VeryWell Mind; https://www.verywellmind.com/b-f-skinner-biography-1904-1990-2795543 (last visited-12
december,2020)
Thus, it can be said that morality is something which is variable in nature

and not static as it differs from place to place, society and individuals

inter se and it also changes with time. What is considered moral at one

point of time may not hold that value in future.

WHAT IS TORT?

Tort, unlike morality, is a civil wrong, which is the violation of the duty

imposed by law on an individual to respect the rights of the other members

of the society. It is derived from the Latin word ‘Tortum’4 which means

crooked or twisted. Thus, any conduct by an individual which is not

straight (lawful) but crooked (unlawful) is considered to be a Tort. It does

not have a single definition for it is comparatively a nascent field i.e., some

considers that the Law of Tort has been made on ad-hoc basis depending

on case to case without a consistent explanation. However, attempts have

been made to make tort a unified system of rules and some of the tortuous

acts have been codified such as - negligence, trespass, defamation, etc.

4
R.K. Bangia's the Law of Torts: Including Motor Vehicles Act, Consumer Protection Act and Competition Act.
Allahabad Law Agency, 2018
 TORT vis-a-vis MORALITY

Law, at its very foundation, is conceived and derived from values5.

However, not all tort confines itself to the morality. Some acts may be

tortuous but may be done morally and some may not to be a tort but done

immorally. To clarify the above case, we may take an example - suppose

there are two person named A and B. While both A and B are driving, they

get distracted by an advertisement on a billboard and turn around to see

it. In this momentary distraction A passed without any event but B’s car

collided with another person C riding a bike due to which C suffered fatal

injuries. In the case filed by C he asked a compensation of $5 million from

B. Here we see that though the other driver, A, took his eye off for the

same amount of time and for the sake of same thing, violating the same

duty of care as B, yet no one would charge him $5 million even when his

behavior morally speaking was undistinguishable from B.

Sited above was and example of negligence. Justice Holmes and Judge

Posner harness ideas of misfortune and accident to bolster a claim about

tort law and negligence in particular. They said that “the law considers …

5
Allsop AO, Values in Law: How they Influence and Shape Rules and the Application of Law, Federal Court of
Australia, (Dec 05, 2020, 8:29 PM), https://www.fedcourt.gov.au/digital-law-library/judges-speeches/chief-
justice-allsop/allsop-cj-20161020.
what would be blameworthy in the average man, the man of ordinary

intelligence and prudence, and determines liability by that. If we fall below

the level in those gifts, it is our misfortune...”6 A man may be adjudged

negligent even though he did his best to avoid an accident which appears

to be clumsier than average. In addition, amongst the numbers of the

established rules of negligence, liabilities are hard to square with a moral

approach. Insane people are liable for negligent conduct though incapable

of behaving carefully. The moral element in such cases is attenuated. This

relation between tort and morality can be seen in few cases of trespass

too where even an honest mistake on the part of the defendant may not

be of any excuse and the person may be liable if he enters the land of

another person honestly believing that to be his own.

Now seeing to the other side of the affair, i.e., when something is done

without morality and that act does not amount to tort. As for example, a

person is not liable to give food to beggars on the street, a person is not

liable to save a man from drowning but if he does save the person then it

will be his moral conscience and no legal action can be brought against

him if he does not.

6
OLIVER W. HOLMES, JR., THE COMMON LAW 108 (48th prtg. 1923)
 Conclusion

Thus, it can aptly be summed up that though Tort and Morality may appear

to be interlinked at a juncture, yet they are on different footings. Whereas

the former has the backing of Law the later has the commendations of

conscience.