Some theories that we have discussed, such as civil recourse and right theories, are applicable to private law generally – duties in private law include those under contract, unjust enrichment and equity as well as tort. Other theorists, such as Jules Coleman (whose work we will explore in the next chapter), develop a specific theory of tort as a component of a broader understanding of private law. It is important for interpretive theories to be clear about the content of the law and the definitions of legal categories, as this is the primary data to be processed and explained. This is less pertinent for a normative theory, which is not beholden to these technical legal facts. Nevertheless, it will be useful to describe in greater detail the relationship between normative tort theory and the law.
46
Nicholas McBride, “Thinking about Tort Law – Where Do We Go from Here?”, (unpublished ms), pp. 9 – 10.
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There is a prior question here. Before we can describe this relationship, we need a definition of tort law. This is a notoriously difficult task and has been pursued as a scholarly end in itself. Again, unpacking this question reveals a cluster of others. How is tort law different from other areas of private law, such as contract? How does private law differ from public law? On the latter question, private and civil wrongs are often taken to be synonymous. Of course, this depends on how we define them. One definition is that a private or civil wrong is a breach of a legal duty imposed for the benefit of a private party, rather than the public at large. If A breaches such a duty owed to B, she has not just committed a wrong, but a wrong in relation to B. Another definition, which we have also noted in relation to civil recourse theory, is that it is a wrong capable of affording the victim, or the victim’s estate, a civil right of action against the wrongdoer.47
As Goldberg and Zipursky argue, the conferral of a civil right of action helps to distinguish private law from criminal law and most of public law. Categorising the subclasses of private law has proven a little more difficult, however. Some traditional views on the division between them have fallen out of favour. For example, Percy Winfield held that duties in tort are primarily fixed by law, whereas duties in contract are fixed by the parties themselves.48 This view can be criticised from two directions. It falls short as a
47
Both definitions are mentioned by Peter Birks. See Birks, “The Concept of a Civil Wrong” in Philosophical Foundations of Tort Law, David Owen Ed., Oxford: Oxford University Press, (1995), pp. 31 – 51, at pp. 33 and 40. Rights-based theories generally emphasise the relational duty feature of private law, whilst civil recourse theory emphasises that private wrongs generate civil actions. McBride and Bagshaw note that the two definitions come apart. If A negligently injures B in the course of a robbery, A has breached a relational duty to B but any civil action will be cancelled by the illegality defence. See Nicholas McBride and Roderick Bagshaw, Tort Law, 4th Ed., Pearson, (2012), pp. 9 – 10.
48
Percy Winfield, The Province of the Law of Tort, Cambridge: Cambridge University Press, (1931), p. 32.
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definition of contract because it ties liability too closely to the making of promises. It cannot allow contractual liability to follow the conferral of a benefit by the claimant or reasonable reliance on the defendant’s behaviour. It is also inadequate as a description of tort because a number of obligations in tort law are, in a sense, fixed by the parties themselves. This is true of liability for careless misstatements that defendants undertake voluntarily.49
Some have sought to salvage a version on Winfield’s thesis. Mcbride and Bagshaw argue that tort law specifies those basic rights we enjoy free of charge and without having to make special arrangements. They underplay the significance of ‘assumption of responsibility’ as a basis for tort liability, since rights arising in this way are not paid for – their creation is just specific to certain circumstances.50 Contract law gives us a facility to
alter our tort law rights, either by gaining more rights or reducing the rights we have against others, all of which must be ‘paid for’ in some sense. The resort to contract as a way of securing extra rights is partially undermined by the expansion of liability for assumptions of responsibility, but McBride and Bagshaw contend that, in general, the distinction is coherent and decisive.
Similar disagreements abound about the relationship between torts and equity, property, unjust enrichment, crime and public law. Tort law, at least as it is perceived and practiced, is a heterogeneous creature that fosters enough examples and counterexamples to fuel these debates. Consider another dispute about the relationship between tort and public law. Public nuisance is sometimes considered part of tort law, but is not civilly actionable without proof of special damage. This seems to undermine the requirement that a civil wrong confers a private right of action. But some have simply argued that public nuisance is
49
For a general discussion, see Simon Deakin, Angus Johnston, and Basil Markesinis, Markesinis and Deakin’s Tort Law, 6th Ed., Oxford: Clarendon Press, (2008), pp. 17 – 18.
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not a tort at all, and has unfortunately come to be considered so by a series of accidents.51
Equally, products liability, vicarious liability and the rule in Rylands v Fletcher are believed to be constituents of tort – they are certainly taught to students in courses entitled ‘Tort Law’ – but they do not involve liability for wrongs. Again, some have argued that these sources of liability are not properly part of tort law.52 Of course, we might incorporate them into tort
law by conceptualising them as forms of faultless wrongdoing, but strict liability undeniably puts pressure on the view of tort as a law of wrongs.
These debates are important for a number of reasons. As John Gardner argues, the legal designation of wrongs has enough practical implications to make it prudent to coherently separate torts from other civil wrongs. Each body of law also tends to develop its own way of justifying its existence, and collapsing the boundaries is likely to create an incomprehensible mess rather than a unified whole.53 But at the normative level, these
debates are not very significant. The finer points of legal classification do not have much bearing on what kind of claims we ought to recognise, although it might affect how we should categorise them, and perhaps give us clues about how best to justify them.
Although I will continue to use the label ‘normative tort theory’, I recognise that, depending on one’s favoured definition, some of the issues I discuss are outside the ambit of tort law. If tort law is a law of wrongs, then – at least on one interpretation of wrongdoing – my discussion of liability for harm caused by permissible action falls outside its scope. Perhaps it is better to begin by specifying the ethical questions that seem most relevant and important, before asking whether they come under the rubric of tort law. A core issue I address is the moral basis of liability to compensate in cases meeting the following
51
See John Spencer, “Public Nuisance – A Critical Examination”, Cambridge Law Journal, 48, (1989), 55 – 84.
52
See McBride and Bagshaw, Tort Law, pp. 13 – 16. 53
John Gardner, “Torts and Other Wrongs”, Florida State University Law Review, (2012), (forthcoming).
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conditions: (1) A causes harm to B, (2) the harm is unintentional, and (3) the ex poste losses cannot be spread amongst the population, but must be borne by A, B or both of them. We can further divide these cases into two types, those where A’s actions are wrongful (negligence) and those where they are not (strict liability), and I discuss both of them. If strict liability is properly part of tort law, then both are paradigmatic tort cases. But if it is not, this part of the discussion is not strictly a question for tort theory.
There is another important difference worth noting: in real cases the losses can usually be shifted to others through some loss spreading mechanism, such as insurance or loss compensation schemes. Indeed, some of the theoretical literature argues that tort should be partially or completely replaced by state-run insurance schemes.54 These alternatives to
tort law must be evaluated at some point down the line, but it is best to establish the correct principles in simpler cases first. Only then will we know what to compare with loss spreading considerations.
There are many aspects of tort liability that I will not discuss. I will omit liability to compensate for intentional torts, such as battery, as well as defamation, nuisance and many others. I will also generally restrict the discussion to compensation. Torts that are actionable
per se and alternative remedies such as vindicatory or gain-based damages raise important questions, but my primary interest is in harm and its correction. That said, my discussion will also develop an analysis of corrective duties independently of compensatory damages. This is because I think that the most philosophically perspicacious account of corrective duties does not map accurately onto the legal categories as they have emerged. I distinguish, for example, between negating and counterbalancing duties, and note that both can be fulfilled by a payment of compensation. This is one example of the general methodological
54
There are also those who argue that tort law should be abolished, leaving the private insurance market to deal with the cost of accidents. See Peter Cane, Atiyah’s Accidents, Compensation and the Law, 7th ed., Cambridge: Cambridge University Press, (2006).
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approach taken by this thesis, which maintains that it is best to explore the most fundamental theoretical questions independently of legal doctrines, categories and principles.
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Methodology and Outline
This thesis will be largely concerned with the definition and significance of corrective duties. Very broadly speaking, this might place it within the corrective justice camp. I am a little reluctant to apply this label, as although there are similarities between the present project and corrective justice approaches, there are also important differences that must be acknowledged. In order to illuminate the issues, I will first discuss some corrective justice theorists and thenlay out the structure of the thesis in greater detail. Corrective justice is an ancient idea, dating back to Aristotle’s Ethics, but the modern theory was developed by Jules Coleman and Ernest Weinrib, with whom we will begin. I will then consider John Gardner’s contribution, which is the most convincing account of corrective justice and its role in tort law. A key difference between corrective justice and the present work is that I am only interested in normative issues. This means that a very different methodology is apt for the project and I will defend this methodology in section 3.