Documentation:Torts/Constructive theories

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TORT LAW
CASEBOOK
Introduction
Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Invasion of privacy • Trespass to the person
Property Torts
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Negligence Tort
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Negligence Categories
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Dishonesty & Abuse of Position Torts
Abuse of process • Breach of confidence • Conspiracy • Fraud • Inducing breach of contract • Injurious falsehood • Intimidation • Malicious prosecution • Misfeasance in public office • Passing off • Spoliation • Unlawful interference with economic interests
Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
Apportionment of liability • Consent • Defamation defences • Defence of property • Denials • Excuses • Illegality • Legal authority • Limitation • Necessity • Self-defence
Remedies
Apologies • Damages • Injunctions • Insurance • Legal costs • Mitigation • Proprietary
Tort Law & Legal Systems
Charter values • Class actions • Concurrent actions • Constitutional torts • Indigenous dispute resolution • No-fault compensation schemes
Tort Theory
Instrumental theories • Constructive theories • Critical theories • Reflexive theories
Study Resources
1L strategy • Answer exercises • Quizzes • Beswick's course site • Opening Up Tort Law Project
Index
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Constructive theories

Theories that try to present tort law as a coherent construct approach the subject not in terms of what tort law does but what tort law purports to be on its own terms. Such perspectives tend to view tort law as "an expression of rights and duties regardless of the instrumental value of those rights and duties".[1] They seek to understand tort law from an internal point of view[2]—that is, the view of tort law held by judges and lawyers operating within the legal system through which cases are adjudicated and doctrine is developed.

Sophisticated theories have been developed that present tort law as unified by a grand principle, such as the principle of corrective justice, of rights-vindication, or of civil recourse. Theories such as those advanced by Ernest Weinrib, Jules Coleman, Arthur Ripstein, John Goldberg and Benjamin Zipursky, emerged partly as a response to instrumental theories of private law.

Jules Coleman has illuminated how instrumental theories tend to treat the bilateral link between plaintiff-victim and defendant-injurer as "utterly mysterious," despite its fundamental importance to a tort suit (theories of compensation, deterrence, or punishment generally focus either on the defendant or the plaintiff).[3] Theorists who question the persuasiveness of economic analysis to explain the legal relationship between plaintiff and defendant have searched for a "more satisfying alternative".[3] While their theories vary, what they have in common is an "interpretive" methodology for understanding tort law, which can be contrasted to the "functionalist" outlook of instrumental theories.[3]

Corrective justice

Zoë Sinel on Corrective Justice
In this episode of the Private Law Podcast host Felipe Jimenez discuss with University of Western Law professor Zoë Sinel on corrective justice, tort law theory, and the influence of seminal thinkers Ernest Weinrib and John Gardner.

The theory of corrective justice is concerned with restoring balance between the injurer and the victim of a tortious act. Corrective justice theorists Jules Coleman, Arthur Ripstein, and Ernest Weinrib place emphasis on the "commutative" aspect of tort law, understood as some form of an exchange from individual A (defendant) to B (plaintiff).[4] The relational nature of tort law is expressed "in a normative regime of correlative right and duty."[5]

Ernest Weinrib characterizes corrective justice as "bipolar," in that connects the "entitlement of one party to the liability of the other." [6] The relationship between these two parties arises from "harm that one of them inflicts on the other," connecting the harms done and harm suffered to illuminate the correlative aspects of a single event.[7] Weinrib argues that the instrumental theories of private law (compensation, deterrence and punishment) are "incompatible" with this relationship since they "interrupt the direct relationship of doer and sufferer".[8] Corrective justice theory poses a challenge to any "hegemony of economic theory" of tort law, providing rich theoretical approaches to the complex relationship between parties involved in a tortious act.[4]

Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19[9]
In Atlantic Lottery Corp. Inc. v. Babstock, Justice Brown for the Supreme Court averred, citing Weinrib, that "corrective justice, the basis for recovery in tort, demands ... an explanation as to why the plaintiff is the party entitled to a remedy .... Tort law does not treat plaintiffs “merely as a convenient conduit of social consequences” but rather as “someone to whom damages are owed to correct the wrong suffered” ...."[9]

Primary and secondary duties

Corrective justice theory understands the structure of tort law in terms of primary and secondary duties.[10] First order duties prohibit or require certain conduct.[10] For example, certain intentional torts such assault, battery and defamation are concerned with how certain behaviours are prohibited. The tort of negligence recognises obligations to act or not act in a certain way. Second order duties are "duties of repair" that arise upon the breach of a first order duty.[11] The relationship between first and second order duties is that an individual or entity has a duty to "repair" or address the wrongful loss arising from their breach of a first order duty. In this way, the corrective justice theory accounts for one of the core aspects of tort law, which is the legal connection which exists between a wrongdoer and their victim. It explains why tort law is "a law of wrongs".[12]

Corrective justice versus distributive justice

The distinction between corrective and distributive justice dates back to Aristotle's theories of justice.[13] Both forms of justice "presuppose the Aristotelian idea of normative equilibrium".[14] While corrective justice places focus on the relationship between two individuals connected by the "voluntary or involuntary transaction" (tort), distributive justice emphasizes the larger group or political community and the distribution of goods and legal burdens.[15] Weinrib distinguishes corrective justice from the theory of distributive justice. On his account, distributive justice does not relate to two parties "directly," but arises instead "through the medium of a distributive scheme" that operates in society outside of the tort system.[16] Distributive justice does not operate as a bipolar relationship, since distributive decision-making implicates "any number of parties".[17]

Critiques of corrective justice theory

Limits of injustice correction

Corrective justice theory is criticised by some as overly formalist and too narrowly focused on the bilateral plaintiff-defendant relationship. Ken-Cooper Stephenson contends that Weinrib's corrective justice theory "misunderstands much of tort law's actual social context" and "fails to accommodate tort law's legal, political, and social context".[18]

Brown v. Canada [19]
Criticisms of corrective justice theory have arisen in the context of residential school survivor litigation. Kent Roach has questioned whether "the survivors" in this tort litigation "would have been better off had they avoided engagement with Canadian law."[20] The concern is that any legal remedies or settlements reached in practice are devoid of "correction" between survivors and the state in wake of intergenerational impacts of residential schools.[19] Since no amount of money can account for the willful infliction of emotional distress, corrective justice theory may be ill-equipped to explain tort law's interaction with complex systemic realities such as colonial abuses.

Dependence on distributive justice?

While Weinrib argues that tort law exemplifies only corrective justice, others consider that the tort system necessarily relies on a "co-dependency" with distributive justice.[21] Helen Eenmaa-Dimitrieva explains the intersections of corrective and distributive justice, presenting arguments that tort law has both distributive and corrective elements.[22] Ken Cooper-Stephenson asserts that "both corrective and distributive" elements are present in tort law.[21] For Cooper-Stephenson, tort law is "one component of a distributive scheme".[21] That is to say, tort law's corrective justice features must be viewed within the larger societal scheme of rights and obligations which organize benefits and burdens across society.

Civil recourse

For Goldberg and Zipursky, tort law is a "gallery of wrongs".[23]

Civil recourse theory presents tort law as a system that empowers individuals to obtain recourse through the courts from those who wrong them. This theory has been most prominently developed by John Goldberg and Benjamin Zipursky, who argue that tort law is "a law of responsibility" that opeates to allow the tortfeasor to be "held responsible or accountable to the victim".[23] Drawing upon John Locke's theory of the social contract, they present the tort system as a foundational societal institution that supplants individuals' claims to self-help.[24] This idea is summarized by Zipursky:

"[b]y recognizing a legal right of action against a tortfeasor, our system respects the principle that the plaintiff is entitled to act against one who has legally wronged him or her. I call this the principle of civil recourse. The legal principle that the victim of a tort has a right of action against the tortfeasor is an instance of this more general idea."[24]

Alike to corrective justice, civil recourse highlights the normative rights and duties at play in the tort law system.[25] However, unlike corrective justice, civil recourse contends that breach of a (primary) duty provides plaintiffs with a (secondary) "right of action" to seek legal redress from the wrongdoer through the courts.[26] This is not exactly a legal right to "demand payments and remedies from those who have wronged them," as corrective justice would have it.[27] Rather, it is a legal power that a plaintiff may choose to exercise (or not) to bring a claim against the defendant and have it heard and adjudicated by an impartial court.

Podcast: John Goldberg and Ben Zipursky on Recognizing Wrongs[28]
In this episode of the Private Law Podcast host Felipe Jimenez discuss with prominent constructivist theorists John Goldberg and Benjamin Zipursky about their book Recognizing Wrongs.
Book Talk: John Goldberg and Ben Zipursky on Civil Recourse Theory[29]

At an event at Harvard Law School in 2020, Professors John Goldberg and Ben Zipursky discussed their book with fellow panelists.

Critiques of civil recourse theory

Explanatory power in tort law

Legal economist and judge Richard Posner has been strong critics of civil recourse theory, contending that it provides no guidance for courts making legal decisions.[30] Posner argues that civil recourse theorists' idea of a "right of action" is a feature of every private law relationship and not something unique to our understanding of tort law.[30] Additional critiques suggest that civil recourse is simply a subcomponent of corrective justice, which simply explains civil procedure.[30]

Emphasis on wrongdoing

Another critique of civil recourse theory is that it is simply a theory of state-sanctioned revenge, a variation on instrumentalist theories of punishment. Yet, this is an interpretation that Goldberg and Zipursky are "keen to distance themselves from".[31]

Despite attempts to distance civil recourse from revenge, Goldberg and Zipursky's focus on "wrongdoing" may seem strained in certain scenarios.[32] Andrew Gold notes that the application of civil recourse can be "odd" as "some defendants are good faith actors who exercised due care".[33] Gold adds that some plaintiffs also may be much more concerned with obtaining a remedy instead of holding the defendant responsible for their act.[33] This is especially demonstrated in strict liability or negligence cases where defendants' culpability tends to be less prominent than in intentional tort cases.

Rights vindication

For some theorists the vindication of rights is accepted as the primary justification of tort law.[34] Theories of rights vindication are distinct from corrective justice as they highlight the infringement of rights rather than an imposition of loss. Rights vindication can be viewed in two ways: one is that generally the "law affirms the existence of the right through recognition of an action for breach," and two that specifically tort law aims to "reinforce the inherent value of a particular interest".[35] As stated by professor Arthur Ripstein, "[a] right that can be knowingly violated with impunity is no right at all."[36]

Robert Stevens characterizes a tort as a "species of wrong", where a wrong "is a breach of a duty owed to someone else" and a breach of this duty is "an infringement of a right" held by the victim.[37] Stevens' "rights model" of tort law too recognises primary and secondary obligations in private law relationships: "a wrong is the infringement of a primary right which generates a secondary right". For Stevens, the secondary obligation arises from the defendant's "infringement of primary rights", rather than from the "infliction of loss" (as characterised by corrective justice theory).[37] In tort this secondary right is typically "a liability to pay compensation".[38]

Rees v. Darlington Hospital[39]
Andrea Mulligan illuminates the potential effectiveness of rights vindication theory in understanding tort litigation regarding negligence and reproductive rights.[40] While many cases of assisted human reproduction proceed under public law, negligence claims have also been taken as an avenue for vindicating rights-infringements arising from mistakes made in the course of fertility treatments. For Mulligan, the case Rees v. Darlington Hospital is illustrative.[40] After the plaintiff Rees sought to not have children due to her disability and had undertaken medical care for sterilization she became pregnant. She sought compensation for the cost of having to raise a child.[39] While the Court did not agree that Rees had suffered a compensable loss in the traditional sense, it awarded $15,000 in damages to recognise that the plaintiff had "suffered a legal wrong".[41]

Critiques of rights vindication theory

Distinguishing moral rights from interests

Andrew Gold on The Right of Redress[42]
In this episode of the Private Law Podcast host Felipe Jimenez discusses with Andrew Gold, professor of law at Brooklyn Law School, his new book The Right of Redress.

A major focus of critique of Stevens' theory on rights vindication is his classification of rights. Stevens contends that "[r]ational people can recognize rights independently of their being given the force of law’".[43] For many, this conception of a right resembles moral rights which rely on "basic aspects of human well-being or flourishing, such as liberty and physical integrity".[44] Such rights may be viewed to have value prior to the law and are thus "pre-political".[45] Stevens refuses to extend rights to some interests that courts in some jurisdictions do recognise as attracting rights, such as pure economic loss, and instead states that an injury in tort law is only recoverable if it involves a breach of primary rights. Stevens leaves it up to the Courts to determine the scope of these primary rights upon policy grounds.[46] Scholars such as Peter Cane[47] and Dan Priel[45] point to weaknesses in Stevens' reliance on Courts to apply the concept of moral/primary rights. In particular, Cane questions the practicality of legal reasoning being reduced to an exercise of right protection despite the realities of subjective elements of the common law.[47]

Valuing rights

In response to Robert Stevens' theory of rights, Jason Varuhas has argued that it is is difficult to make out what would be needed to "be able to value a right" to provide an appropriate award of damages.[48] Varuhas adds that since rights are understood to be a norm, calculation of the value of infringement can be arbitrary and artificial, which tends to undermine consistency in the practice of law.[48]


References

  1. ↑ Posner, Richard A. (Spring 2013). "Instrumental and Noninstrumental Theories of Tort Law". Indiana Law Journal. 88 (2): 469 – via Digital Repository at Maurer Law.
  2. ↑ Solum, Lawrence (2004). "The Internal Point of View". Legal Theory Lexicon.
  3. ↑ 3.0 3.1 3.2 Postema, Gerald (2009). Philosophy and the Law of Torts. Cambridge: Cambridge University Press. pp. 5–9.
  4. ↑ 4.0 4.1 Postema, Gerald (2009). Philosophy and the Law of Torts. Cambridge: Cambridge University Press. pp. 5–9.
  5. ↑ Weinrib, Ernest J. (1993). "Formalism and its Canadian Critics". In Cooper-Stephenson, Ken; Gibson, Elaine (eds.). Tort Theory. Captus University Publications. p. 12.
  6. ↑ Weinrib, Ernest J. (1991). Corrective Justice. Oxford: Oxford University Press. pp. 7, 18–19.
  7. ↑ Gibson, Elaine (1993). Tort Theory. North York: Captus University Publications. pp. 10, 26. ISBN 0921801874.
  8. ↑ Weinrib, Ernest J. (1993). "Formalism and its Canadian Critics". In Cooper-Stephenson, Ken; Gibson, Elaine (eds.). Tort Theory. Captus University Publications. p. 11.
  9. ↑ 9.0 9.1 Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19 (§15.1.1) at para 34.
  10. ↑ 10.0 10.1 Sheinman, Hanoch (2003). "Tort Law and Corrective Justice". Law and Philosophy. 22: 30.
  11. ↑ Loth, Marc (2015). "Corrective and Distributive Justice in Tort Law". SAGE Publications. 22: 795.
  12. ↑ Coleman, J., Hershovitz S., Mendlow G. (17 Dec 2015). "Theories of the Common Law of Torts". Stanford Encyclopedia of Philosophy Archive.CS1 maint: multiple names: authors list (link)
  13. ↑ Wells, Catharine Pierce (1990). "Tort Law as Corrective Justice: A Pragmatic Justification for Jury Adjudication". Michigan Law Review. 88: 2350.
  14. ↑ Zipursky, Benjamic (2003). "Civil Recourse, Not Corrective Justice". The Georgetown law journal. 91: 1.
  15. ↑ Loth, Marc (2015). "Corrective and Distributive Justice in Tort Law". SAGE Publications. 22: 793.
  16. ↑ Weinrib, Ernest J. (1991). Corrective Justice. Oxford: Oxford University Press. pp. 7, 18–19.
  17. ↑ Weinrib, Ernest J. (1993). "Formalism and its Canadian Critics". In Cooper-Stephenson, Ken; Gibson, Elaine (eds.). Tort Theory. Captus University Publications. p. 10.
  18. ↑ Cooper-Stephenson, Ken (1993). "Corrective Justice, Substantive Equality and Tort Law". In Cooper-Stephenson, Ken; Gibson, Elaine (eds.). Tort Theory. Captus University Publications. p. 48.
  19. ↑ 19.0 19.1 Brown v. Canada [2018] ONSC 3429 (§12.4.1).
  20. ↑ Roach, Kent (2014). "Blaming the Victim: Canadian Law, Causation, and Residential Schools". University of Toronto Law Journal. 64: 566.
  21. ↑ 21.0 21.1 21.2 Cooper-Stephenson, Ken (1993). "Corrective Justice, Substantive Equality and Tort Law". In Cooper-Stephenson, Ken; Gibson, Elaine (eds.). Tort Theory. Captus University Publications. p. 49.
  22. ↑ Eenmaa-Dimitrieva, Helen (2019). "The Problem of Dependency of Corrective Justice: Corrective Entitlements and Private Transactions". The Canadian Journal of Law and Jurisprudence. 32.
  23. ↑ 23.0 23.1 Goldberg, John C.P.; Zipursky, Benjamin C. (2014). "Tort Law and Responsibility". In Oberdiek, John (ed.). Philosophical Foundations of The Law of Torts. Oxford University Press. p. 17.
  24. ↑ 24.0 24.1 Zipursky, Benjamin (2003). "Civil recourse, not corrective justice". The Georgetown law journal. 91: 735, 737.
  25. ↑ Gold, Andrew (2011). "The taxonomy of civil recourse". Florida State University law review. 39: 66.
  26. ↑ Goldberg, John & Benjamin Zipursky (2013). "Civil Recourse Defended: A Reply to Posner, Calabresi, Rustard, Chamallas, and Robinette"". Indiana Law Journal. 88: 575–576.
  27. ↑ Zipuesky, Benjamin (2014). "Civil recourse and the plurality of wrongs : why torts are different". New Zealand Law Journal: 146.
  28. ↑ Private Law Podcast, "John Goldberg and Ben Zipursky on Recognizing Wrongs" (23 Mar 2021) Google Podcasts.
  29. ↑ Harvard Law School, "HLS Library Book Talk | Recognizing Wrongs" (27 Feb 2020) Youtube.
  30. ↑ 30.0 30.1 30.2 Posner, Richard (2013). "Instrumental and Non-instrumental Theories of Tort Law". Indiana Law Journal. 88: 471–472.
  31. ↑ Hershovitz, Scott (2011). "Corrective Justice for Civil Recourse Theorists". Florida State University Law Review. 39: 122.
  32. ↑ Stone, Rebecca (2023). "Private Liability Without Wrongdoing". University of Toronto Law Journal. 73: 60.
  33. ↑ 33.0 33.1 Gold, Andrew (2020). The Right of Redress. Oxford: Oxford University Press. p. 113.
  34. ↑ Varuhas, Jason (2014). "The Concept of 'Vindication' in the Law of Torts: Rights, Interests and Damages". Oxford Journal of Legal Studies. 34: 253–7. line feed character in |title= at position 40 (help)
  35. ↑ Varuhas, Jason (2014). "The Concept of 'Vindication' in the Law of Torts: Rights, Interests and Damages" (PDF). Oxford Journal of Legal Studies. 34: 258.
  36. ↑ Ripstein, Arthur (1998). Equality, Responsibility, and the Law. Cambridge;New York: Cambridge University Press. p. 158.
  37. ↑ 37.0 37.1 Stevens, Robert (2009). "Introduction". Torts and Rights. Oxford University Press. p. 2.
  38. ↑ Stevens, Robert (2009). "Classification". Torts and Rights. Oxford University Press. p. 287.
  39. ↑ 39.0 39.1 Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52.
  40. ↑ 40.0 40.1 Mulligan, Andrea (2020). "A vindicatory approach to tortious liability for mistakes in assisted human reproduction". Legal Studies. 40: 55. line feed character in |title= at position 58 (help)
  41. ↑ Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52at para 17.
  42. ↑ Private Law Podcast, "Andrew Gold on The Right of Redress" (5 Apr 2021)
  43. ↑ Stevns, Robert (2007). Torts and Rights. Oxford University Press. p. 330.
  44. ↑ Varuhas, Jason (2014). "The Concept of 'Vindication' in the Law of Torts: Rights, Interests and Damages". Oxford Journal of Legal Studies. 34: 253–7. line feed character in |title= at position 40 (help)
  45. ↑ 45.0 45.1 Priel, Dan (2011). "That Can't Be Rights (Review of Robert Stevens's 'Torts and Rights')". Juriprudence. 2: 235.
  46. ↑ Stevens, Robert (2007). Torts and Rights. Oxford: Oxford University Press. pp. 33–7.
  47. ↑ 47.0 47.1 Cane, Peter (2008). "Torts and Rights by Robert Stevens". Modern Law Review. 71: 641–647.
  48. ↑ 48.0 48.1 Varuhas, Jason (2014). "The Concept of 'Vindication' in the Law of Torts: Rights, Interests and Damages". Oxford Journal of Legal Studies. 34: 271.
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