On The Legal Theory Of Risk Distribution

The risk is in the center of the society and attracts the attentions of people. In reality, risk is inevitable for human beings. Risks are burdens for all people, and how to distribute risks is the issue to the law and jurisprudence. In generally, the structure of risk distribution is made up of people who involve in the distribution, the objects that be distributed, and the principles which the distributions rely on. These elements can consist of different models of risk distribution.The concept of risk has experienced long-term evolution. Based on the risk society theory, the history of risk can be divided into three stages: pre-modern risk, first-modern risk and second-modern risk. The modern risk is dialectical, which is embodied in both objectivity and subjectivity, positivity and negativity. The dialectics of risk makes the risk distribution becomes more complex, and no longer confined to be a scientific problem but a social problem related to politics, ethics, culture and laws. In the field of law, the risk itself can not be a attributed to the category of harm, and itself does not deserve damage. But it can’t be denied that the risk belong to a kind of disadvantage in the law which has a effect on human welfare. In the system of risk distribution, the risk is artificial, non-intentional and first-order risk, including private risk, public risk and between the two. These three types of risk are applied to three different kinds of models of risk distribution.The purpose of risk distribution is justice. The system of criterions of risk distribution originate from the right against risks. Everyone enjoys the right to resist others to their own disposition and distribution of risk. This is a prima facie right which could be overridden by argument. Only the right to be legitimately overridden, risk distribution can be justified. Utilitarianism and contractualism can provide limited arguments for the override of the right and for the risk distribution. To find a proper foundation for risk distribution, we must also consider the two traditional theories. If the risk distribution system as a fair social cooperation system, then the basic principles of risk distribution should be committed to the realization of fairness. The fair system of criterions of risk distribution includes the reciprocity principle, the equality of opportunity principle and the difference principle. Therefore, the principles of justice of risk distribution include the right against risks and three basic principles, and a two-level system is formed between them: the right against risks is first-order principle; reciprocity, equality of opportunity and the difference of justice are second-order principles. These three principles correspond to three types of risk distribution. Therefore, the combination of three kinds of risk and three principles form three distribution models: the model of reciprocity, the standardization model and the localization model. Division of the three models is more like a constructive ideal type, and their applications and performances in reality are usually cross each other rather than clear-cut.The Reciprocity Model of risk distribution is the distribution of private risk according to the principle of reciprocity. It can be used in people’s daily life and bear the risk of each other, representing a kind of "free market for risk" theory model. In the "free market for risk", it is through the exchange to allocate the risk. Risk exchange or offset formats two forms of reciprocity: the pure reciprocity of risk distribution and the abstract reciprocity of risk distribution. The freedom and security of exchange is actually behind the exchange of risks, which is the source of the fairness. In order to ensure the realization of fair maximum, legal system must be integrated with reciprocity and gives people an equal status. According to the fair game theory, people involved in the practice of reciprocal exchange of risks have enjoyed the benefits of the practice, thus must undertake corresponding obligations to bear risks. The reciprocal model of private risk distribution is mainly embodied in the private law system, especially the tort law. With the help of the tort law system, the reciprocity model will distribute risk into the duty of care, and distribute the damage caused by risks into liability.The standardization model of risk distribution is present in specific background: the distribution object is no longer purely private risk, but both the private and public risk property risk; second, take the risk society as the background; third, the political environment is the rise of regulatory state. The intrinsic nature of the risk and the external environment of the distribution have prompted the government to participate in the distribution of risk, and to intervene in the "risk market". The standardization model is actually involved in the standard setting and the risk market, in which the standard regulates the risk entering the market and the market is responsible for the allocation of the risk of standardization. This makes the standard is in the core position so as how to enact the standard has become a key issue of the standardization model. The process of standardization is actually a process of generalization, whose core value lies in equality of opportunity, that is, the opportunity for everyone to contact and take risks is fair. Of course, the fairness of this opportunity must be in line with the scientific principles of security, but also need to consider the appropriate risk-benefit analysis of the utilitarian factors. Standardization is not to eliminate risk, but to allow residual risks exist, while the remaining risk may becomes unacceptable with the progress of scientific research and the changes of preferences, so the residual risk should remove out from "the market for risk", which is usually shown as product recall and follow-up obligations in the law. If residual risks eventually lead to harm, then who bear the damage will affect the final realization of distributive justice.The localization model distribute the public risk to some people not all people. The local distribution of risks in modern society, although no longer by race and gender as a basis for the allocation, will still be according to geography, occupation and other factors. The localization model is usually realized by the state power, and the illegal or unreasonable exercise of power will lead the risk distribution facing the crisis of legality or legitimacy, and even arouse the civil confrontation. The solution of this dilemma and the realization of distributive justice, at least need to ensure the fairness both in the sustenance and in the procedure of the distribution. The localization model must face up to the differences in the distribution, exclude discriminations out of the distribution system, and compensate for people who bear a disproportionate share of public risk. At the same time, the distributor should communicate with the potential risk bearers.