Date: Mon, 28 Jul 2003 21:55:24 +0100

From: Steve Hedley

Subject: Insurance/Principles/Policies

At 12:23 28/07/2003 -0400, Jason Neyers wrote:

How is ignoring something that is irrelevant "fictional"?

But as you know, Harold doesn't accept that it is irrelevant. To ignore insurance is to pretend that we live in a world very like ours but without insurance - a fiction. And it is a confusing fiction, as it is never explained whether we are to pretend that the idea of insurance never occurred to anyone, or that the problems that insurance solves never existed or were never perceived as problems, or what.

By the way, do you also think we should we discuss liability insurance as if tort did not exist, or does the fiction only work one way? ;-)

2) Andrew rightly points out that insurance has a greater role to play in contract law. I agree, not for the reasons he gives, but rather because the question of insurance is one of the background facts against which the parties have contracted.

... and in Tort, insurance is one of the background facts against which the tort happens. For example, the requirement that motorists take out liability insurance undoubtedly has a major impact on driving practices, and on what happens after a road accident.

But this is just as consistent with doing justice between the parties as it is with seeking to use this particular dispute as a way of furthering some societal goal, a goal which will necessarily be contestable and should be open to the democratic decision making process.

This distinction is difficult for me, and I suspect for some others who have contributed. Justice between the parties is eminently contestable, and how we deal with such disputes is surely a matter on which society is entitled to establish goals through the democratic process.

3) Jennifer and Andrew seem glad that the judges are making their "policy assumptions explicit". ... Why is it easier to believe a mass conspiracy or a rash of intellectual failings, than to accept that most judges give their actual reasons for decision in their written reasons and that they have until fairly recently honestly believed that their function as a judge, combined with the actions' procedure and their institutional competences, required them to limit their inquiry to a defined set of relevant facts/issues? In legal theory terms, to do corrective justice rather than distributive justice.

We are all in the game of teasing out something the judges did not say expressly - otherwise, our jobs could be done by anyone with access to a law library, a photocopier and a pair of scissors. If you wish to argue for the continued usefulness of the corrective/distributive distinction, you will have to do better than pretending that this is or was a judicial orthodoxy; as Stephen Waddams points out, the common law does not rise so high, or at least not in that philosophical direction.

Steve Hedley

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