英文原则考量侵权法及其之外SSRN-ID180858[精品论文].pdfVIP

Principled Adjudication: Tort Law and Beyond (1999) Canterbury Law Review Page 1 PRINCIPLED ADJUDICATION : TORT LAW AND BEYOND* Richard W. Wright Professor of Law, Chicago-Kent College of Law Illinois Institute of Technology I. INTRODUCTION Are there moral principles underlying tort law (or law in general)? If so, what are they, and is there a need for judges or others involved in identifying, interpreting and applying the law, or for legislators dealing with issues related to the area of law, to understand and take proper account of those moral principles? If there are underlying moral principles that should be taken into account, when and how should they be taken into account? These issues are the subject of two recent articles by Professor John Smillie, who addresses them 1 in the broad context of civil adjudication in New Zealand and the specific context of the availability of exemplary damages for personal injury.2 Professor Smillie identifies and distinguishes three approaches to adjudication that have been used or advocated by New Zealand judges: formalism, fairness, and efficiency. While noting familiar problems with the supposedly traditional formalist approach, which relies on literal interpretation and deductive application of explicitly stated rules, Smillie ends up strongly advocating it over either of the morality-based approaches: the fairness approach espoused by Sir (now Lord) Robin Cooke and other influential New Zealand ju