Documentation:Torts/Tort theory
Tort theory
The study of tort theory steps back from doctrinal "black letter" law and asks broader questions such as: what is tort law and what is tort law for?[1] The search for the essence and purpose of tort law has generated scholarly debates that engage legal philosophy, politics, economics, sociology, ethics, and more. Theories of torts (and private law, and law generally) are manifold. Here, they are grouped into four broad camps understood as instrumental, constructive, critical, and reflexive views of tort law. Some theories overlap in their descriptive or normative interpretation of tort law.[2] However, we can see different principles and arguments reflected in their methodology, scope, and philosophy. Students of the law of torts should critically examine what perspectives have the most explanatory power in the array of contemporary tort law issues.
Theoretical perspectives on tort law
Instrumental theories
Instrumental or functionalist tort theories tend to conceive of tort law as a means of achieving particular ends in society. Tort law is explained and justified as a system for achieving certain social goals, such as the compensation of victims, deterrence of harmful conduct, or the punishment of wrongdoers. Such theories tend to adopt an external (outsiders’) perspective on tort law, by stepping back from the system and assessing and critiquing it in terms of how well tort law achieves its goals.
Constructive theories
What might be termed interpretive or "constructive theories" tend to present the construction of tort law as "an expression of rights and duties regardless of the instrumental value of those rights and duties".[3] Theorists in this tradition seek to understand tort law not in terms of what tort law does but instead what tort law is, on its own terms. These perspectives aim to adopt an internal point of view[4]—that is, the view of tort law held by judges and lawyers operating within the legal system. Prominent theories in this tradition contend that tort law is unified by a principle of corrective justice, or of rights vindication, or of civil recourse.
Critical theories
Critical theorists aim to present tort law in terms of what is understood to be actually going on in the real world, rather than in terms of what tort law tries to do or purports to be. These theories tend to ground themselves in the systemic realities of the world tort law interacts with. Critical theorists center perspectives of those traditionally marganalized within society and by the legal system society has created and maintained. In particular, the theories illuminate the intersectional perspectives of people of colour, those with low socio-economic status, and women. They critique tort law and the tort system in terms of its impact on disadvantaged groups.
Reflexive theories
A reflexive understanding of tort law rejects the idea that there is one grand theory or principle that can represent tort law in its entirety. The common law of tort is a system and practice that has developed over a millennium through adjudication of disputes, the enactment of legislation, and the lawyerly, political and scholarly advocacy of many people. Tort law can be described, theorised and critiqued variously in terms of what its doctrines and practices purport to do, actually do, and fail to achieve. As Peter Cane puts it, the only real unifying feature of tort law is that “tort law is the law of torts”.[5]
Tort law as a quilt
The common law of torts is sometimes analogized to a grand old patchwork quilt.[5] What does this mean?
- An instrumental perspective might focus on how the quilt can be used to keep people warm or to have a picnic on.
- A constructive perspective might focus on what the quilt is made of and how its pieces fit together.
- A critical perspective might focus on who has access to the quilt and who never gets to enjoy it.
- A reflexive perspective might focus less on the quilt as a whole and more on the pieces: what they're made of, who made them, who sewed them together, how well they fit together, and what maintenance and modification might be in store for the quilt in future.
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Quiz
- ↑ Solum, Lawrence (22 May 2005). "Formalism and Instrumentalism". Legal Theory Lexicon.
- ↑ Gardner, John (23 May 2016). "Tort Law and Its Theory". Oxford Legal Studies Research Paper. 2.
- ↑ Posner, Richard A. (Spring 2013). "Instrumental and Noninstrumental Theories of Tort Law". Indiana Law Journal. 88 (2): 469 – via Digital Repository at Maurer Law.
- ↑ Solum, Lawrence (2004). "The Internal Point of View". Legal Theory Lexicon.
- ↑ Jump up to: 5.0 5.1 Cane, Peter (2017). Key Ideas in Tort Law. Oxford: Hart Publishing. pp. 13–20.