We may say that distributive justice constitutes legal orders on the basis of two basicly legal concepts: legal right and legal duty,while corrective justice repairs the infringed legal orders on the basis of another basicly legal concept of liability.Without liability,the legally bad consequence,anyone can refuse to fulfill legal duty or directly breach legal duty,thus the legal orders is always infringed.So,we may further say that without liability, without law.Hence,it’s so important that we should have a more precise concept of liability.
As different theorists argues different view of points on the concept of liability,here what I am doing is trying to create a mixed but improved concept of liability.
Definition of Liability
Liability is legal disadvantage of the nonfulfillment of legal duty.I adopted the theory of “disadvantage” as the essence of liability.①The genus of liability is “legally disadvantage”.The differentia of liability is that such a disadvantage arises from the nonfulfillment of legal duty. I prefer the expression of nonfulfillment of legal duty because I believe that do what we should not do is a breach,but don’t do what we should do is a non-fulfillment.Nonfulfillment of legal duty includes the situation of breach,and it’s a more precise expression than that of “breach of legal duty”. Some other theorists argue that liability is secondary duty② or deprived duty③. Some others argue that lialility is a legal sanction④,some others believe that liability is a negative review⑤.I don’t believe that secondary duty,legal sanction or negative apprase is respectively the essence of liability,but the different representations of such a legal disadvantage,the liability.So,I improved the concept as above.
Rrepresentations of liability
Liability,the legaldisadvantage,has different resentations,which may appear separately or mixedly.Seperately, duty of repair, or legal sanction is common representation of liability. Here I don’t agree with the view that liability is all of secondary duty,because only some of them can are secondary duty,such as paying money for fine.Others like accepting staying in a prison ,is not very exact to be a secondary duty.So,I prefer that ,along with duty of repair,legal sanction is another independent representation of liability.Mixedly,liability may appear as a combination of different representations.For example,because of drunk driving,I hit a person on the road.I have to pay damages of the person, also have to pay 500 for the violation of traffic rules.So,duty of repair of the person’s loss and fine of 500 are both representations of my liability.
Besides the two representations of duty of repair and legal sanction,here what I am trying to remind is the third independent representation of liability,the legal disadvantage:Negatively Legal Review of the conduct on issue.Maybe we have missed it for a long time.
Generally,if someone did not fulfill his legal duty,the law must say something first,declaring a negatively legal review of the conduct on issue, no matter whether the law makes further legal reactions.For example,before the court sentences a criminal penalty,it must say there was a crime.Before the court makes a decision of compensation,it must say there is a tort or a breach of contract. But logicaly, duty of repair or legal sanction is not always the inevitable disadvantage of nonfuifillment of legal duty.We may see such a phenomenon that the law just say you are wrong,and because the wrong is so light that no legal sanction is given.So,the law may just make a negatively review on the conduct on issue only,without taking any futher reactions of ordering a duty of repair or ordering a legal sanction. For example,I wrongfully parked my car,the police negatively reviewed me,but did not give any legal sanction.The police’s negative review of my conduct of wrongfully parking is a representation of my liabilitySo,I believe that negatively legal review of conduct on issue is an independent representation of legal disadvantage,of liability,which is not just the basis of duty of repair or of legal sanction,but the previously representation of liability.
Clearly,the common form of negatively legal review is legal condemnation,such as culpability,fault and wrongfulness.But I believe there is another form of negative review:Affirmance of Nonfulfillment of legal duty.These are the two types of legally negative review of conduct on issue.For example,I alleged in a court that Tom owed me 2 000 dolloars,and I have a legal duty to present evidences to prove such a fact.Because I could not represent any evidence, the judge did not comfirm the fact I alleged. So,I bear a legal advantage,a form of liability.“If you fails to meet your burden of proof ,you will meet a legal disadvantage”,which is a familiar expression is courts.
Thus,there are three independent representations of liability:negatively legal review of conduct on issue,duty of repair and legal sanction.Negative legal review includes legal condemnation and affirmance of nonfulfillment of legal duty.
①Professor Lin Rendong,“General theory of Maxism
jurisprudence”Nanjing University Press,edition in 1990,page 186.
② H. L. A. Hart,“The Concept of Law”,China’s Encyclopedia Press,edition in 1996,page 96.
③Black’s Law Dictionary,American Westen Press, 8th edition,page 2676.
④ Hans Kelsen,“General Theory of Law and State”, China’s Encyclopedia Press,edition in 1996,page 73.
⑤Professor Zhang Wenxian,“Jurisprudence”second edition,Peking University Press,2003,page 142.