Pravičnost v neposlovnem odškodninskem pravu

slovenian

2025

volume 51, issue 2

causation   compensatory justice   distributive justice   justice   justice in positive law   legally recognised damage   monetary damages for non-pecuniary damage   unlawfulness

Narodna in univerzitetna knjižnica
(Obvezni izvod spletne publikacije)

The article examines the meaning of justice in non-contractual tort law. Based on a detailed substantive analysis of the provisions of the law, theory, and extensive case law in this area, it concludes that justice holds not only legal-philosophical importance but also great practical significance in Slovenian tort law. Tort law, like other branches of law, is not a coherent system of legal norms that precludes any value concretisation. Justice, as a moral and ethical principle, thus forms the basis for a critical constructive critique of positive law. A sense of justice is also an indispensable starting point for the interpretation of the prerequisites of a tort obligation and for any assessment of their (non-)fulfilment. Only by considering (consciously or not) compensatory and distributive justice and their relationship in tort law can a fair balance between the injured party and the perpetrator be ensured, as well as equality in the treatment of a large number of parties in different tort events. However, legislators and courts must be very careful when invoking justice, as excessive emphasis on “justice” can lead to arbitrariness and solutions that are more unfair than a consistent application of positive rules. The legislator must make a considered judgment as to whether the invocation of justice in the provisions of positive law is necessary and justified in a particular case, and the courts must “go one step further than the law, but not without the law.”

08.12.2025