Moral theories of torts: Their scope and limits: Part I

Indiana Law Journal, 1992

CORRECTIVE JUSTICE of such liability. 4 Strict liability expresses the idea that if our current practices are to be interpreted as articulating a moral ideal that interpretation must downplay or eliminate entirely the role of fault. The theory of strict liability is correct in that liability and recovery in tort do not always depend on the existence of injurer fault. The theory goes astray as an account of our current practices, however, in its belief that the justice of liability and recovery in torts rarely, if ever, depends on injurer fault. In this essay, I want to present the beginnings of an account of tort law that takes the principle of fault liability seriously. Fault is central both to the institution of tort law and, in my view, to its ultimate moral defensibility. I want to provide here a moral foundation for the fault principle in the principle of corrective, not retributive, justice.

Law and Philosophy, 1983

Problems of Legality

The article has two main objectives: (1) to reveal why the fault principle is considered to be morally superior to no-fault liability in primitive law; and (2) to find out the essence of fault in modern tort law and then to express the concept of fault in the most precise manner possible, namely through math formula. It is argued that the very existence of law is contingent on freedom of human's will. It is the human's freedom that allows to judge human's actions. Thus, provided that we consider tort law as a set of rules prohibiting infliction of damage and establishing liability therefor, it is fair to state that fault is a precondition of tort liability specifically because freedom is a precondition of the very law's operation. Therefore, while establishing fault the court investigates whether the tortfeasor was free at the moment of infliction of damage. Fault denotes that formally wrongful act was committed freely. Since establishing fault is conducted after the wrongful act has been committed (it is conducted within judicial proceedings, which constitute backward-looking research), the inference follows that fault is an ex post conclusion of freedom. However, sometimes all the elements of the free-choice situation being present, the tortfeasor nevertheless cannot be deemed to be at fault. This is the case, where the tortfeasor could have avoided inflicting damage, but at excessively heavy cost. Thus, it is not enough if among the available alternatives there is one harmless; in addition, the harmless option has to be reasonable. Otherwise choosing this harmless option cannot be expected.

Philosophy Compass, 2008

Rights and Private Law, 2012

For more than a generation, corrective justice theories of tort have been the principal alternative to economic theories. Corrective justice conceptions claim (as Jules Coleman, a leading corrective justice theorist puts it) that "tort law is best explained by corrective justice" because "at its core tort law seeks to repair wrongful losses." This thesis encapsulates a powerful critique of the economic theory of tort. That theory is committed to a relentlessly forward-looking conception of the institution. On the economic account, tort is a mechanism for inducing actors whose activities put others at risk of injury to minimize the combined costs of accidents and their prevention. It does so by placing responsibility for repairing past losses on those actors who are the "cheapest cost-avoiders." The "cheapest costavoiders" are those who are in the best position to minimize the combined costs of accidents and their prevention. Because past costs can no longer be affected, this criterion looks forward and only forward. It therefore misconceives the point of tort adjudication. Tort adjudication looks backwards and assigns responsibility for repairing harm wrongly done. Tort adjudication holds tortfeasors liable to those they have wronged for the losses that they have wrongly inflicted because they are responsible for having wrongly inflicted those losses on those victims. Corrective justice theory thus articulates a powerful critique of the economic theory of tort. That critique, however, spawns its own misconception of tort law. Corrective justice theory puts the cart before the horse and misconceives tort as an essentially remedial institution. Tort is a law of wrongs, not just a law of redress for wrongs. Logically and normatively, obligations of repair are dependent on primary obligations not to wrong others in the first instance. Logically, remedial responsibilities are conditioned on and arise out of failures to discharge primary responsibilities. Normatively, primary responsibilities provide the reason for honoring remedial responsibilities and largely determine the shape of remedial responsibilities. Repairing harm wrongly done is the next best way of complying * This chapter is part of a larger project on the role of rights and rectifi cation in tort law. I am grateful to participants in the Obligations V Conference as well as

2015

In the following paper we will be mapping tort law in the common law, reflecting on the divergence between corrective and distributive justice and their main theoretical defenses deployed by Anglo-American scholars. The concepts are in turn portrayed in their proper context: a legal culture shaped historically different from the continental legal culture. However, at a deeper level, both traditions are motivated by the same goals: how to provide justice for the victims of tort law. Because the road to destination is different, the common law having distinct ways of addressing torts, the continental jurist my need another sets of concepts to understand this domain of law.

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/

Ratio Juris, 2023

In this paper, I will focus on the normative structure of tort law. Only by elucidating the point or rationale of holding the wrongdoer responsible to the victim can we understand the value of having tort law instead of establishing other mechanisms of redress, such as a social insurance scheme. Ultimately, I will argue that the value of interpersonal justice, which underlies tort law, might not suffice to fully justify it in a given community. It all depends on whether victims of accidents are able to vindicate their rights against wrongdoers on a regular basis. If social conditions make this unlikely, then the state might be morally required to implement other forms of compensation, either replacing tort law altogether or supplementing it with social insurance in cases where private justice mechanisms tend to fail more dramatically.