Torts and Other Wrongs

In this critical piece I take stock of current understandings of five basic distinctions in the theoretical study of tort law: First, a meta-theoretical distinction between the law's self-presentation and a commitment to epiphenomenalism; second, between the formal and the substantive theory of the morality of tort law; third, between corrective and distributive justice; fourth, between ideal and non-ideal tort theory; and finally, between culpability and justice (or equality). The law of torts is widely recognized as one key pillar of private law, which is to say the law that governs the terms of horizontal interactions among persons. Whereas contract law governs certain types of consensual interactions, the law of torts mainly occupies itself with involuntary forms interactions and, in particular, the duties that attach to those whose activities render vulnerable the legitimate interests of other people, including those who are outside the privity of a joint enterprise. In that, tort law amalgamates otherwise discrete torts into one unity, namely, the law of torts. For the past several decades, the theoretical study of tort law has proceeded by implicit or explicit rejection of the thought that the law at issue just is a purely contingent political fact. Instead, the positive law of torts is better understood as a rich repository of conceptual and normative insights capable of placing some constraints on what lawmakers can do and on what private persons can demand from one another. According to this theoretical tradition, the doctrines that the legal community and others commonly understand as tort law's are (at least potentially) microcosms of fundamental normative principles. Thus, the law of torts has been closely studied and sophisticatedly reconstructed, using philosophical, economic, and certain other established methodologies, in an effort to articulate the character, general principles, and normative commitments that underlie the rights and the duties that figure in this body of law. To this extent, The Philosophical Foundations of the Law of Torts (John Oberdiek ed., OUP 2014) provides a collection of illuminating essays on important questions—though certainly not all of these are, in fact, foundational ones—concerning the organizing ideas and normative ideals that underlie the law of torts. Indeed, John Oberdiek has assembled nineteen thoughtful essays and provided an extremely helpful introduction which together  Tel Aviv University, Buchmann Faculty of Law. The paper is an extended version of a critical comment published with the Notre Dame Philosophical Reviews (Januray 21, 2015) available at http://ndpr.nd.edu/news/55240-philosophical-foundations-of-the-law-of-torts/

Jurisprudence , 2019

2014

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Law and Philosophy, 1983

Law Phil, 1982

Translating Law-and-Society for Today's Legal Practice, 2000

Legal R/realism and Jurisprudence: Ten Theses William Twining* i. introduction At Oxford, Salmond on Torts had been my favorite textbook (Salmond 1953). It was a conventional, lucid, expository work. Shortly after I had graduated in 1955, a solicitor specializing in personal injuries told me to forget what I had learned in the books because nearly all of his cases were settled out of court with an insurance company or the Motor Insurers' Bureau involved. Anyway, he said, the system needed drastic reform. I suffered culture shock. So I began to wonder: how could one understand the law relating to personal injuries if one knows nothing about insurance, settlement, the damages lottery, and alternatives to the common law action for negligence? 1 I felt misled, let down, even betrayed by Salmond and my teachers. This is a common complaint by students in most modern legal systems. Of course, I was naïve, for no one in Oxford had claimed that what they were offering was in any way realistic. Brian Leiter cites a colleague as saying: "Anyone teaching constitutional law who discusses only the doctrine is guilty of educational malpractice" (Leiter 2003, citing Powe 2001). That was how I felt about Torts. But the context in England was different. When I complained, I was met with standard, complacent answers: * More detailed exploration of nearly all of the ideas presented here can be found in the following works:

Philosophy Compass, 2008

Am. UL Rev., 1992

Journal of Tort Law

The idea that criminal punishment carries a message of condemnation is as commonplace as could be. Indeed, many think that condemnation is the mark of punishment, distinguishing it from other sorts of penalties or burdens. But for all that torts and crimes share in common, nearly no one thinks that tort has similar expressive aims. And that is unfortunate, as the truth is that tort is very much an expressive institution, with messages to send that are different, but no less important, than those conveyed by the criminal law. In this essay, I argue that tort liability expresses the judgment that the defendant wronged the plaintiff. And I explain why it is important to have an institution that expresses that judgment. I argue that we need ways of treating wrongs as wrongs, so that we can vindicate the social standing of victims. Along the way, I consider the continuity between tort and revenge, and I suggest a new way of thinking about corrective justice and the role that tort plays i...