Documentation:Torts/Reflexive theories
Reflexive theories
While instrumental, constructive, and critical theories generally aim to present a grand theory or principle that captures tort law, other legal scholars reject that endeavour altogether. Instead, scholars such as Jane Stapleton and Peter Cane emphasise the common law and practice of torts as a system that has developed over the course of a millennium. Over this long time span, the adjudication of disputes, the enactment of legislation, and the lawyerly, political and scholarly advocacy of many people have contributed to the "human construct" of tort law and practice.[1] Furthermore, tort law can be described, theorized and critiqued in terms of what its doctrine and practices purport to do, actually do, and fail to achieve. As Cane puts it, the only real unifying feature of tort law is that “tort law is the law of torts”.[2]
Taking common law seriously
| Lady Brenda Hale "Principle and Pragmatism in Developing Private Law"[3] |
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| In a Cambridge Freshfields Lecture Lady Brenda Hale discusses what should guide the development of tort law, principle or pragmatism? |
The term "reflexive'" theory has been used by Jane Stapleton in response to scholars who advance grand theories of tort law. In her essays, Stapleton argues that although grand theory may have value, "[r]eality always trumps the model". [1] Instead, Stapleton elaborates a perspective that "seeks a creative interactive conversation with judges" justifying the name "reflexive tort scholarship". [1]
An important aspect of the reflexive perspective is tort law's ability to evolve: “as society changes and develops, so too does the common law change and evolve in line with this”.[4] Ultimately, for Stapleton, the tort law is in constant incremental evolution, without a single grounding purpose or conception.
The practice of tort law can be seen to support this perspective, as reflected in Chief Justice McLachlin's statement in R v. Imperial Tobacco Canada Ltd:
"[t]he law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed."[5]
| Wilkinson v. Downton [6] |
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| A reflexive perspective may help us to understand the evolution of the tort of intentional infliction of mental suffering (IIMS). After the recognition of the tort in 1897,[6] the tort evolved to accommodate the modernisation of social norms. In Rhodes v. OPO, the United Kingdom Supreme Court expanded the tort beyond its gendered origins and listed five elements required for a successful action.[7] It acknowledged the role of social norms in what can be considered "flagrant and outrageous" conduct, an element of the claim of IIMS.[8] The culmination of the doctrine in Canada the Prinzo test illustrates the 'living' common law. |
Stapleton's perspective is shared by academics James Goudkamp and John Murphy, who highlight a variety of areas in tort law that instrumental and constructive theories fail to explain.[9] These scholars consider Weinrib’s corrective justice theory, Stevens’ rights-based account, and Posner’s economic analysis and conclude that each of the theories “fall well short of their stated goal of being able to explain all of tort law in all the major common-law jurisdictions”.[9]
- ↑ 1.0 1.1 1.2 Stapleton, Jane (2021). Three Essays on Torts. Oxford;New York: Oxford University Press. pp. 1–2.
- ↑ Cane, Peter (2017). Key Ideas in Tort Law. Hart Publishing. p. 13.
- ↑ Cambridge Freshfields Lecture "Principle and Pragmatism in Developing Private Law" Cambridge Law Faculty (7 March 2019)
- ↑ Stapleton, Jane (2021). Three Essays on Torts. Oxford;New York: Oxford University Press. p. 6.
- ↑ R v. Imperial Tobacco Canada Ltd [2011] SCC 42 (§19.5.2.1) at para 21.
- ↑ 6.0 6.1 Wilkinson v. Downton [1897] EWHC 1 (QB) (§3.1.1).
- ↑ Rhodes v. OPO, [2015] UKSC 32 (§3.2.1) at paras 107, 110–111, 115–116.
- ↑ Fitzpatrick v. Orwin, 2012 ONSC 3492 (§3.2.2) at paras 117–18.
- ↑ 9.0 9.1 James Goudkamp & John Murphy (2016). "The Failure of Universal Theories of Tort Law". Oxford Legal Studies Research Paper. 22: 84.