Justice, Fault & Liability

Over at the intriguing new blog Catholic Ramblings, there is a suggestion that American tort law has lost sight of justice -- at least as understood by Aquinas and Hilaire Belloc -- as it has expanded the reach of vicarious liability:

[Vicarious liability] is not limited to medical malpractice cases, but seems to operate to impose liability on a larger (and in many cases, wealthier) entity when an individual would not be able to pay the damages caused by that individual. And yet, this liability is imposed many times on the basis not of desire or actual harm caused by the larger entity, but on the theory, the “legal fiction” that the larger entity is somehow responsible for the damages caused by the ill-will or mistake of the individual. Belloc, I believe, is correct in noting that this is a breach of justice - to denote fault to another entity because of the error on the part of an individual which has little or nothing to do with the other entity is unjust, on the basis noted by Aquinas that justice is, “Rendering to each one his right,” since, as Isidore says, “a man is said to be just because he respects the rights [jus] of others.” Rendering to each one his right includes, then, the right to be punished according to fault or breach of justice.

The objection from today’s society is, of course, “who, then, will pay for the loss of the injured, if the one who produced the injury cannot? It would be unjust to allow this injury to go uncompensated.” In the far past, one might expect that the criminal laws would enter now, to imprison the injurer. However, even if the criminal law operates now, the tort law may still have a say in attempted recovery. I wonder if this is an result of our individualism and loss of reliance on God to rectify, whether in this life or the next. If injury to another human being is an affront to God, then on Earth, it becomes an affront to the community of believers, to society, and it is society which will imprison with the force of the magistrate. However, in an individualistic and agnostic society, individual injury, not society, must form the basis of compensation. Yet, we still have criminal laws which we have inherited from ancient times, which operate in tandem with the increasingly danegeld system to produce bizarre results whereby a man may be punished twice for his actions, and, even more oddly, a man be punished and then his entire extended system of contacts be searched for additional sources of wealth to pay for the injury.

This is an interesting perspective, but I disagree.  First, I don't think we can say that the vicariously liable entity has "little or nothing to do" with the wrongdoing entity -- generally, the wrongdoing has occurred as part of the larger entity's operations.  E.g., even if the hospital is not negligent in allowing the harm-causing surgeon to operate in its facilities, the wrongdoing still occurs as part of the hospital's operation, and the hospital is still in the best position to take steps to guard against the wrongdoing.  Second, my conception of justice is much broader than the question "whose behavior is culpable in this scenario?"  The law & econ crowd is not always sufficiently focused on issues of justice, but they have driven home the point that the externalities of an entity's operations should be a concern for society.  Tortious harm is not just a question of individual culpability.  It's a question of incentivizing social actors to account for harms directly related to their conduct.  In this regard, vicarious (as well as strict) liability is not simply a "show me the money!" concession to our sense of individual entitlement -- though making a victim whole has to be part of the justice analysis.  Non-fault-based liability is also a prudent acknowledgment that the causes of human suffering do not always correlate with culpability.  Justice is not just about punishing those who deserve it; it's also about clarifying the relationship between conduct and consequences.

UPDATE: Jonathan at Catholic Ramblings responds here.  I think our disagreement centers on my belief that tort law is not simply a mechanism for punishment; it is also a mechanism for the just allocation of risk associated with socially beneficial conduct.