Method and Fit: Two Problems for
Contemporary Philosophies of Tort Law
William Lucy*
This essay examines
two contemporary philosophical
accounts of tort law and seeks to show that they face two closely
related problems: that of method and of fit.
The
first problem holds that the method philosophical
accounts of tort law actually adopt is in one vital respect structurally
similar to that used by Economic Analysis of Law. The difficulty
that arises is that these philosophical accounts of tort law cannot
therefore distinguish themselves from economic accounts on the
ground that they are methodologically superior. There is, in fact a
degree of parity between these philosophical accounts of tort, on the
one hand, and economic accounts, on the other, with regard to the
way in which they accommaodate the details of, and the views of the
participants in, the institution of tort law, its constitutive practices,
and doctrines. This, of course, is not to say that the content of our
two sample philosophical accounts of tort law is the same as the
content of economic accounts.
The second problem raises this question: how much of an
its constitutive practices and rules, must a
institution, and
philosophical account of it fit? The two philosophical accounts of
tort examined here have been crmcized for failing to fit some
allegedly significant features of the law. It is argued that one
is misguided and, more
particular
generally, that it is sometimes a mistake to expect too close a fit
between normative explanations and the institutions and practices to
which they relate. And this, of course, is not to argue that there
should be no close connection at all between such accounts and
their objects.
instance of this criticism
The discussion of the problems of method and fit paves the
way for some more general reflections on method in private law.
These reflections, though tentative, might also have implications for
general legal philosophy.
Cet article se penche sur deux conceptions philosophiques
contemporaines du droit de la responsabilit& d6lictuelle et tente de
demontrer que celles-ci soulevent deux problernes: celui de la
m6thode et celui de Ia con-espondance.
Le premier probl&me 6mane du fait que la m6thode adopt&e
par les conceptions philosophiques du droit de la responsabilitd
d6lictuelle est, A un 6gard fondamental, structurellement similaire a
celle utilisce pour I’analyse 6conomique du droit. Cette similarita
ine difficult6 puisque ces conceptions philosophiques du
entramne
droit de Is responsabilite delictuelle ne peuvent pas, sur la base
d’une sup6riorit& m6thodologique, se distinguer des analyses
&onomiques du droit. I1 y a, en fait, un degrn de pant6 entre les
conceptions philosophiques du droit de la responsabilit6 d6lictuelle
ei les analyses 6conomiques, panit qui provient de la facon dont
celles-ci s’adaptent aux caract&ristiques et aux points de vue des
participants de l’institution du droit de la responsabilit& d6lictuelle,
de ses pratiques constitutives et de ses doctrines. Cela dit, l’auteur
ne soutientpas que le contena des deux conceptions philosophiques
do droit de la responsabilit6 d6lictuelle soit identique A celui des
conceptions 6conomiques.
Le second probl6me soul6ve la question suivante: quel degro
de correspondance devrait exister entre, d’une part, une institution et
ses pratiques et rtgles constitutives et, d’autre part, la conception
institution? Les deux conceptions
philosophique de cette
philosophiques de la responsabilit6 dMlictuelle 6tudi&es dans l’ailicle
lPobjet de critiques en raison de I’absence d’une
ont fait
correspondance suffisante entre celles-ci et ceitaines caractiristiques
significatives du droit de la responsabilite d6lictuelle. L’auteur
soutient qu’une de ces critiques est malavis&c et que, de manitre
g6n6rale, ce serait une erreur de s’attendre A une correspondance
trop parfaite entre des explications normatives et les institutions et
pratiques auxquelles elles se rapportent. Ce faisant, I’auteur ne
pr&tend pay qu’il ne devrait pas y avoir de liens 6troits entre ces
conceptions et les objets auxquelles elles s’attachent.
Ces remarques au sujet des probl6mes de rn-thode et de
le terrain pour une r6flexion d’ordre
correspondance preparent
g6n&ral sur Ia methode en droit priv6. Ces r6flexions, quoique
provisoires, pourraient 6galement alimenter les r6flexions sur la
pliilosophMejuridique en g6n&al.
. LL.B. (Leeds), M.Jur, M.A. (Econ) (Manchester); Professor of Law, School of Law, University of
Manchester, U.K. Part of this paper was presented at the Australian Society for Social and Legal
Philosophy meeting in Auckland, New Zealand in June 2006. I am grateful to the participants for their
thoughts and attention and, in particular, to Peter Cane, Tom Campbell, and Jim Evans. I also
impinged upon Stuart Toddington’s time and patience, for which I am grateful, and owe a debt of
gratitude to Georgos Mousourakis, for a reminder of old times. The comments of the McGill Law
Journal referees were also most helpful and much appreciated.
William Lucy 2007
To be cited as: (2007) 52 McGill L.J. 605
Mode de r&f6rence : (2007) 52 R.D. McGill 605
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Introduction
I. The Elephant in the Room
II. Bilateralism
A. The Method
B. A Problem Shared Is Still a Problem
Ill. Corrective Justice
A. Substantive Standing and the Liability to Correct
B. Three Problems
1. Two Problems with Substantive Standing
2. Bluntness and the Liability to Correct
IV. Made-to-Measure Philosophy
Conclusion
607
610
612
615
619
629
631
637
637
643
648
655
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Introduction
Thomas Carlyle’s view of economics as a “dismal science” would surely meet
resistance from proponents of what can felicitously be called “first wave” North
American law and economics.’ This wave of law and economics (“EAL”) is that body
of scholarship engaged in extending the alleged insights of neoclassical economics to
all aspects of legal doctrine and procedure, including almost every aspect of the
design and operation of legal systems. It is embodied in texts like Richard Posner’s
classic Economic Analysis of Law and more recent additions such as Robert Cooter
and Thomas Ulen’s Law and Economics and Steven Shavell’s Foundations of
Economic Analysis of Law.2 First-wave EAL’s almost imperial range distinguished it
from vanguard law and economics, which was concerned in the main with only
obviously economic areas of legal doctrine like, for example, U.S. antitrust law.
Furthermore, both the intellectual leaders and some of the most zealous proponents of
first-wave EAL extended their analyses well beyond the confines of the law. It thus
seemed that there was almost no aspect of social life that this approach could not
explain.’ Indeed, such has been the ostensible intellectual success of EAL that even a
notable nonzealot has said it is “the most important development in legal scholarship
of the twentieth century.”‘4
1 Carlyle, of course, had “political economy” in mind but this body of thought is close enough to
what we currently regard as economics for the quip to be serviceable. See Thomas Carlyle, Latter-Day
Pamphlets; Translations from Musceus, Tieck, Richter (London: Chapman and Hall, 1903) at 37, 128.
For two helpful general treatments of the context and range of North American law-and-economics
scholarship and its various strands, see Neil Duxbury, Patterns of American Jurisprudence (Oxford:
Clarendon Press, 1995) at 301-419; Anthony Ogus, Costs and Cautionary Tales: Economic Insights
for the Law (Oxford: Hart, 2006) at 1-34. That the influence of EAL has spread far beyond North
America is obvious from recent scholarship. See e.g. Boudewijn Bouckaert & Gerrit De Geest, eds.,
Encyclopedia of Law and Economics (Cheltenham, U.K.: Edward Elgar, 2000); Jurgen G. Backhaus,
ed., The Elgar Companion to Law and Economics, 2d ed. (Cheltenham, U.K.: Edward Elgar, 2005)
vol. 1-4. The term “first wave” is taken from Megan Richardson, “The Second Wave in Context” in
Megan Richardson & Gillian Hadfield, eds., The Second Wave of Law and Economics (Sydney:
Federation Press, 1999) 2 at 2.
2 Richard A. Posner, Economic Analysis of Law, 6th ed. (New York: Aspen, 2003); Robert Cooter &
Thomas Ulen, Law and Economics, 4th ed. (Boston: Pearson Education, 2004); Steven Shavell,
Foundations of Economic Analysis of Law (Cambridge: Belknap Press of Harvard University Press,
2004). It is worth noting that Shavell moves away from the narrow wealth-maximization conception
of efficiency once favoured by Posner to a supposedly more flexible and complex notion of social
welfare (ibid. at 2-4, part VII). This move does not ensure that Shavell’s conclusions are radically
different from Posner’s.
3 See e.g. Gary S. Becker, The Economic Approach to Human Behavior (Chicago: University of
Chicago Press, 1976); Gary S. Becker, A Treatise on the Family (Cambridge: Harvard University
Press, 1981) (offering economic explanations for social discrimination, timing of marriage, irrational
behaviour, etc.). See also Elisabeth M. Landes & Richard A. Posner, “The Economics of the Baby
Shortage” (1978) 7 J. Legal Stud. 323.
“4 Bruce Ackerman, quoted in Cooter & Ulen, supra note 2 at 3.
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This essay is not directly concerned with first-wave EAL, which, in light of the
previous paragraph, might seem perverse. Hopefully, the impression of perversity
dissipates once the true focus of the essay is stated:
its concern is with one
particularly interesting noneconomic reaction to two of EAL’s core claims as they are
applied to tort law. The reaction in question is that of those jurists and philosophers
who champion the notion of corrective justice as the key to understanding tort law.
The overarching issue in what follows is not, however, the moral or political
acceptability of corrective justice, for it seems that as an intuitive or common sense
matter corrective justice always has greater normative appeal than efficiency, the
value EAL emphasizes. The concern is instead with the adequacy of the explanation
and understanding of tort law offered by proponents of corrective justice, this issue
being explored with an eye to the supposed methodological inadequacies of the EAL
account.
The first argument offered here raises the issue of method-the issue of how
theorists should go about constructing broadly “philosophical” accounts of tort (or
any other aspect of) law-and illuminates a particular problem that it presents. The
problem is neither that there is no obvious or agreed-upon method for the task of
offering a philosophical account of tort law, nor that there is a plethora of such
methods. Rather, the problem unearthed is that, though economic and corrective
justice accounts of tort law are apparently very different bodies of thought, and
though they begin from ostensibly very different starting points, they ultimately differ
radically neither in their method nor in the structure of their theoretical “outputs”.
Clearly, the substance of those theoretical outputs is indeed very different: the notion
of corrective justice and the way in which it characterizes tort law is quite unlike the
notion of efficiency and its characterization of tort. Yet the way in which these
competing accounts come to the conclusion that one or other notion-either
corrective justice or efficiency-informs and explains tort law is very similar. There
is thus, surprisingly and contrary to first impressions, some degree of methodological
parity between both economic and noneconomic accounts of tort law. This is indeed a
problem if proponents of noneconomic accounts of tort law regard their enterprise as
completely different from, and methodologically superior to, that engaged in by
proponents of EAL.
The second argument offered here raises the issue of fit. This issue also plays a
role in the first argument and is probably best regarded as but a particular
manifestation of the general issue of method. The fit issue can be captured by a
‘ By the term “philosophical” I do not intend to distinguish accounts of tort law that draw their
inspiration from either ancient or contemporary philosophy from those accounts that draw upon other
disciplines. Rather, I mean only to highlight a difference between what could be called “purely
doctrinal” accounts of tort law, such as we might find in some textbooks, on the one hand, and
accounts that seek a “deeper” understanding of the nature or structure of the law, on the other. For
present purposes, then, both the economic accounts of tort law and the noneconomic accounts featured
in this essay are “philosophical”, though it is often tempting to regard only the latter, because of their
sources of inspiration, as “properly” philosophical.
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seemingly innocuous question: which features of the area of law in question must a
philosophical account accommodate? This question is explored in a manner quite
different to the first argument: the second argument, unlike the first, is principally a
defence of corrective justice accounts of tort law. It defends noneconomic accounts
against a criticism not unlike one frequently aimed at EAL, namely, that it is a bad fit
with the detail of the law. A central claim of the second argument is that this fit
“problem” is to some extent bogus, that it is a mistake to expect accounts of the
nonnative basis of tort (or any other area of) law to fit all or very many of the details
of legal doctrine. If this claim is correct, then it presents a difficulty for corrective
justice accounts of tort law. The difficulty arises when such accounts are commended
because they fit the detail and structure of tort law better than economic accounts. For
it seems to be the case that both corrective justice and economic accounts of tort fail
to fit some features or details of the law. The principal difference between them is
thus not that one account fits the detail or structure of tort law and the other does not.
Rather, they differ in the aspects of the law that they fit and those that they fail to
accommodate. The problem then arises (which is not tackled here) of how to
determine where the balance of explanatory advantage lies between these accounts.
Three additional points should be noted about these two arguments. First, they
have a relatively narrow focus. They are developed with reference to only two, albeit
exemplary, instances of noneconomic philosophy of tort law: those belonging to Jules
Coleman and Ernest Weinrib.6 It is undeniable that the work of these two scholars has
been both incredibly fruitful and influential in the field. While the work of other
jurists in this area is also undoubtedly significant, that work is often an extension of
or engagement with the pioneering efforts of Coleman and Weinrib. Their work is
thus the focal point of what follows. Second, the two arguments are closely related
and, in fact, illuminate different aspects of the same general issue. Since these
arguments are not therefore genuinely independent, it is no surprise to find each to
some extent featuring in the other. They have been separated here only to aid
exposition.
The third point is that the two arguments need not assume that there is still
intellectual life in first-wave EAL, but they do. This is to deny neither that there are
some difficulties with this body of scholarship, nor that this wave of EAL might be
being slowly submerged by an altogether less monomaniacal and zealous form of
law-and-economics thinking.7 Neither point completely undermines the claim that
first-wave EAL attempted to illuminate the nature and underpinnings of large chunks
of private law in general, and tort law in particular, in an admirably clear, general,
6 Jules L. Coleman, Risks and Wrongs (Cambridge: Cambridge University Press, 1992); Jules
Coleman, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory (Oxford:
Oxford University Press, 2001); Ernest J. Weinrib, The Idea of Private Law (Cambridge: Harvard
University Press, 1995).
7 See especially Michael J. Trebilcock, The Limits of Freedom of Contract (Cambridge: Harvard
University Press, 1993). See also Cass R. Sunstein, ed., Behavioral Law and Economics (Cambridge:
Cambridge University Press, 2000).
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rigorous, and apparently social-scientifically serious way. Nor do these two points
undermine another obvious truth. At the time the first wave of EAL scholarship was
taking shape, many of its claims were regarded as prima facie compelling by
noneconomic theorists. Indeed, it is no great exaggeration to say that the attempt to
take these claims seriously brought the noneconomic accounts of tort law considered
here into existence. It is more than likely that, without EAL, the two noneconomic
accounts examined here would lack the salience they currently have.
The discussion divides into four. Part I briefly and simplistically sketches two core
EAL claims, which are neither interrogated nor explicated in what follows. Part II then
considers one noneconomic riposte to one of these claims, while part III considers
another. The noneconomic riposte examined in part II consists of Coleman’s and
Weinrib’s arguments about tort law’s bilateral structure. The examination of those
arguments requires some consideration of the method that Coleman and Weinrib
deploy to generate their accounts of tort law and it is here that the problem of
methodological parity arises. The emphasis of part III is slightly different from that of
part II for, instead of tackling Coleman’s and Weinrib’s arguments directly, it evaluates
an interesting critique of Coleman’s and Weinrib’s ripostes to the second EAL claim.
Although Coleman’s and Weinrib’s ripostes differ from one another in many respects,
it is nevertheless appropriate to speak of “one” riposte here because they are the same
in this crucial aspect: both invoke the notion of corrective justice. It is in the course of
considering the critique of this corrective justice riposte that the fit issue arises. It
should also be noted that the bilateralism and corrective justice ripostes considered in
parts II and III are usually run together and support one another to some degree. It is
therefore artificial to separate them in this way, though doing so clearly illuminates
some of the issues in play. Part IV attempts to sketch a more general moral that the
arguments of parts II and III might illustrate, though the link between this moral and
the arguments that precede it is, as will be seen, far from incorrigible.
I. The Elephant in the Room
Two core claims of first-wave EAL are relevant here: first, that the form in which
the law is presented to us is of little interest (“the surface-froth claim”), and, second,
that the immanent rationality of all branches of law is efficiency (“the efficiency
claim”).
The surface-froth claim denies that there is much, if anything, to be learned from
taking the law seriously in its own terms. The claim was most famously made by
Posner in his description of the significance of the reasons judges give for their
decisions in particular cases: “[O]ften the true grounds of legal decision are concealed
rather than illuminated by the characteristic rhetoric of opinions. Indeed, legal
education consists primarily of learning to dig beneath the rhetorical surface to find
those grounds, many of which may turn out to have an economic character.”8 The
8 Posner, Economic Analysis of Law, supra note 2 at 25.
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forces and considerations determining judicial decisions are thus unavailable for easy
inspection, despite their obvious importance in the effort to understand how and why
the law develops and changes. This skeptical attitude to the surface appearance of
judgments is easily extended to other aspects of the law. So, for example, it can be
invoked to dismiss the ostensible form of legal doctrines and statutes that are rich in
apparently noneconomic concepts like “rights”, “duties”, “wrongs”, “obligations”, et
cetera. If we understand these aspects of the legal world in the form and terms in
which they are presented to us by judges, textbook writers, and statute drafters,
then-the implication is-we will miss much. Such an understanding is, indeed, a
misunderstanding according to most proponents of first-wave EAL. Perhaps the most
important function of the surface-froth claim and the skeptical attitude to legal
doctrine it embodies is that it casts doubt on the utility of attempting to reconstruct
and rationalize legal doctrinal development in the way the best of our textbooks and
other legal commentaries do. It raises not the question (tabled some time ago) “Is
your textbook really necessary?”9 but, rather, grounds an altogether more radical
verdict: “Your textbook is entirely pointless and misleading.” No one could therefore
accuse EAL of being intellectually conservative.
The efficiency claim tells us what is beneath the surface froth doing all the work.
While judges might say that their reasons for decision are thus and so, having no
obvious economic interpretation, and while legal doctrines and statutes look unlike
the ukases of efficiency, the truth of the matter lies deeper. For, despite appearances,
some or other version of efficiency is indeed the driving force of legal doctrinal
development.” Just as Moliere’s M. Jourdain has been speaking prose for decades
without knowing it,” so common law judges have, on the whole, unwittingly
followed the requirements of efficiency in legal doctrinal fields as apparently diverse
as contract, tort, crime, tax, and admiralty. On this view, the notion of efficiency
functions as both a conservative and reformatory force. In the former role it allegedly
underpins many of the doctrines and decisions with which we are familiar, while in
the latter it operates to highlight doctrinal and other legal mistakes (decisions and
the desired direction of legal
statutes that are inefficient). It thus illuminates
development. One of the most significant claims EAL makes about efficiency is that
it is, despite a few alleged doctrinal toeholds, principally implicit in the law. It thus
seems that neither judges, legislators, nor litigants often or ever explicitly set
themselves the goal of doing what efficiency requires. They nevertheless generally hit
upon efficient solutions by means of something like an invisible-hand process: the
unintentional outcome of many intentional actions by judges, legislators, and litigants
is that the law is broadly efficient.
9 W1. Twining, “Is Your Textbook Really Necessary?” (1970) 11 Journal of the Society of Public
Teachers of Law (New Series) 81.
10 Posner, Economic Analysis of Law, supra note 2 at 249-71.
11 Moli&re, “The Would-Be Gentleman” in Ian Maclean, ed., Moliire, Don Juan and Other Plays,
trans. by George Gravely & Ian Maclean (Oxford: Oxford University Press, 1989) 258 at 281.
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Neither of these claims is evaluated or further considered. Both have, of course,
been contested and neither can now stand without some degree of amendment. They
are nevertheless important to what follows because they fulfill the role of opposites
against which two features of the noneconomic accounts explored here react. The first
feature of these two noneconomic accounts is the argument from the bilateral
structure of tort (and private) law; this is in part a riposte to EAL’s surface-froth
claim. The second feature is that both accounts invoke the notion of corrective justice,
which is intended to displace EAL’s argument from efficiency.
II. Bilateralism
The argument from tort law’s bilateral structure fits well with the notion of
corrective justice. The bilateral argument holds that what makes tort law in particular,
and private law in general, distinctive is the nature of the relationship between
claimant and defendant. 2 The principal features of this relationship are (1) claimant
alleges that defendant has wronged him and thus seeks a remedy from defendant; (2)
the remedy consists of defendant having to do something to correct the wrong-for
example, defendant may be required to pay an amount of money to claimant
commensurate with the loss defendant’s wrong caused the claimant; (3) claimant
must sue defendant-the person who has allegedly caused his wrong-rather than a
wealthier third party or the state; and (4) defendant, if liable, must compensate
claimant rather than direct claimant to a wealthier third party or the state.
On this view, tort law adjudication is primarily a backward-looking process given
normative significance by the notion of corrective justice. This idea holds, in general
terms and subject to some conditions, that one is duty bound to put right some of the
wrongs one does to others. Applied to tort law, corrective justice allegedly provides a
normative explanation of why claimants sue defendants (rather than wealthier third
parties); why defendants adjudged liable must compensate claimants and, in some
cases-though much depends on the particular theory of corrective justice in play-
why the remedy must take the form it usually does in tort. More generally, what
corrective justice does is to highlight agent-specific reasons for action in certain
contexts: when a responsible being has actually wronged another (or is answerable
for such a wrong) in some specified way, he or she has a duty to the victim. That duty
is not a duty binding on all humankind simply by virtue of their membership in that
group: it is a duty binding on a specific person to another specific person that arises
as a result of either the conduct or status of the former. Our duty to alleviate human
suffering, by contrast, is probably binding upon us regardless of our conduct and is
owed to all who are suffering.
12 For versions of the argument, see e.g. Jules L. Coleman, “The Structure of Tort Law” (1988) 97
Yale L.J. 1233; Coleman, The Practice of Principle, supra note 6 at 13-24; Weinrib, The Idea of
Private Law, supra note 6 at 1-55. The argument is called the “bipolarity argument” in some
discussions. I follow current English legal usage in using “claimant” instead of “plaintiff”.
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The substance of the bilateral critique of EAL is not that EAL lacks an account of
the bilateral structure of tort law. It clearly has such an account. 3 Rather, the critique
is that EAL’s account of the bilateral structure of tort law is either contingent or ad
hoc. These two claims, though they might be assumed to be the same, need not be so
regarded in every respect. While they share the overarching claim that EAL’s account
of the structure of tort law is deficient, the deficiency can take different forms. The
contingency deficiency is this: EAL is unable to provide a sufficiently secure
foundation for the bilateral structure of tort law because it cannot rule out the
possibility that in some circumstances efficiency will require that some or other
aspect of that structure be abandoned. So it might be that in the circumstances of
some case or cases, efficient deterrence or compensation requires a claimant to be
compensated by someone other than the defendant, or that the damages the defendant
usually has to pay to the claimant be redirected. That EAL cannot rule out such
possibilities in advance, combined with the fact that it cannot say anything more of
the bilateral relationship between claimant and defendant than that, as things stand, it
just so happens to be broadly efficient for one to sue the other, is the essence of the
contingency deficiency. 14
Of course, one may wonder exactly why this alleged deficiency is problematic. It
becomes so if tort law is regarded as a manifestation of some or other set of moral
is one of those
necessities and the relation between claimant and defendant
necessities. If this relation is indeed of crucial moral importance, and if it must
“therefore” be embodied in tort law, then this deficiency is certainly serious. But it
should not be assumed either that the relation between claimant and defendant is of
crucial moral importance or that, if it is, it must be embodied in the law. The moral
status of the relation must be spelled out and a crass legal moralism, in which the law
is assumed to embody every significant feature of morality, cannot be accepted
without argument. 5 Furthermore, the fact that the EAL account of the relation
between claimant and defendant is contingent in this sense is not obviously a problem
in light of the history and development of tort law in common law jurisdictions. That
history is one in which contingency seems to loom larger in the development of the
law than do the edicts of some or other moral necessities. There have been sufficient
Harvard University Press, 1987) at 262-76.
13 For interesting analysis, see Steven Shavell, Economic Analysis of Accident Law (Cambridge:
“14 See Coleman, The Practice of Principle, supra note 6 at 17-23; Benjamin C. Zipursky,
“Pragmatic Conceptualism” (2000) 6 Legal Theory 457 at 457, 461. Weinrib has a related objection
that holds that EAL makes tort law incoherent. See The Idea of Private Law, supra note 6 at 32-38.
The objection, however, depends on a questionable conception of coherence.
15 There are only two British jurists who come close to espousing such a legal moralism. See James
Fitzjames Stephen, Liberty, Equality, Fraternity (Indianapolis: Liberty Fund, 1993); Patrick Devlin,
The Enforcement of Morals (London: Oxford University Press, 1965).
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moral mistakes in tort (and private) law’s history as to make implausible the claim
that it is the embodiment of a defensible moral blueprint. 6
The ad hoc deficiency critique claims that EAL’s account of the structure of tort
law is unsatisfactory because it is determined by the theoretical commitments of EAL
as opposed to the features of that structure itself. Something like this point is
sometimes captured by the charge that EAL’s account of the structure of tort law is
“unprincipled”, the theory determining the nature of the object to be explained rather
than the object determining the theory.’7 As a matter of common sense intuition and
traditional social-scientific orthodoxy, this objection to EAL appears perfectly sound
but is, on reflection, rather more complex than first appears. One complexity arises
thus: when the object to be explained is part of the fabric of social life, it is unlikely
to be understood without some knowledge of how those whose conduct in part
constitutes it actually understand it. That knowledge can in some sense rightly be
regarded as “theoretical” and, furthermore, need not be univocal: participants might
well disagree over how the aspect of social life in question is best understood.
Another complexity arises from this question: what features of the object of
theoretical reflection must a theory or account or explanation or understanding
capture?”8 The answer noneconomic accounts of tort law give is: “The structure of
tort law, at the very minimum.” But matters become awkward when some effort is
made to articulate the basis of this answer. This, of course, is not to imply that
noneconomic accounts lack an answer; far from it. When we ask why this and other
features of tort law must be accommodated by any respectable account of the
institution and its constitutive practices, the answer is something like this: “The best
available method tells us so.”‘ 9
16 See e.g. Bartonshill Coal v. Reid (1858), 3 Macq. 266, 6 Week. Rep. 664 (H.L.); Lochner v. New
York, 198 U.S. 45,25 S. Ct. 539 (1905).
17 See Coleman, The Practice of Principle, supra note 6 at 17. That EAL’s overarching theory gets
in the way of its understanding of tort law is, it seems to me, the motif of Ernest J. Weinrib,
“Understanding Tort Law” (1989) 23 Val. U. L. Rev. 485. See ibid. at 503-10.
18 The terms “theory”, “account”, “explanation”, and “understanding” are used interchangeably in
what follows; while philosophers of the social (or human) sciences used to draw an important
distinction between the latter two, no such distinction is intended here. For present purposes, all four
terms and their cognates or admixtures refer to nothing more than attempts to understand some aspect
of social reality at a level of abstraction and generality higher than that of our “folk” or everyday
understandings. For a discussion of this kind of terminological laxity as it arises in accounts of
adjudication, see William Lucy, Understanding and Explaining Adjudication (Oxford: Oxford
University Press, 1999) at 45-97.
19 Nothing important turns on the use of the terms “institution” and “practice(s)”. For current
purposes the distinction between them is that the former refers to complex social structures while the
latter refers to less complex social structures. Institutions are often constituted in part by practices.
Both are also in part constituted by the convergent conduct of individuals, either rule-guided or purely
conventional, and in part constituted by beliefs held by individuals. Both are also in some sense
“social facts”.
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These two areas of complexity and the ways in which noneconomic accounts of
tort law deal with them preoccupy the remainder of this part and the next. The issue
they generate in this part is that of the grounds upon which noneconomic accounts
privilege the bilateral structure of tort law. Since an important part of their critique is
that EAL cannot adequately accommodate this feature of tort law, we need to know
how, on noneconomic accounts, (1) we obtain knowledge of the bilateral structure of
tort law, and (2) why that structure must be regarded as important or fundamental.
Although a plausible response to these issues is necessary for the critique of EAL to
have force, we will see that the responses given by Coleman and Weinrib are
problematic. This becomes evident when we elucidate the method they and other
noneconomic theorists of tort law employ. This is done in section A. In capsule form,
the method holds that theorists’ knowledge of the bilateral structure of tort law and its
significance rests on the understandings of participants in the institution itself. The
method deployed by Coleman and Weinrib to generate an understanding and
explanation of tort law thus insists that accounts of the institution are built up from
and either accommodate or are compatible with the “participants” or the “internal”,
“juristic”, or “legal” perspective.
One implication of this is that EAL’s alleged inability to adequately account for
the bilateral structure of tort law arises from the inadequacy of its method: EAL
cannot capture the viewpoint of participants whose conduct and practices in part
constitute the institution. By contrast, Coleman’s and Weinrib’s accounts of tort law
supposedly have an important advantage over economic accounts-their capacity to
explain and understand a fundamental feature of the institution-that derives from the
method they deploy. Yet, while the method adopted by Coleman and Weinrib is fairly
clear, what is insufficiently appreciated is that they struggle to take the method
to it is actually not much stronger than EAL’s
seriously. Their commitment
commitment. Although first-wave EAL’s commitment to this method is minimal, the
commitment of these two noneconomic accounts is only marginally stronger, turning
out to be both shallow and problematic. That, at least, is the argument of section B. It
warrants the conclusion that, despite superficially great differences, both economic
and noneconomic accounts of tort law yield theoretical results distant from the views
of participants in the institution.
A. The Method
There is a broad and relatively unambiguous consensus among “orthodox” jurists
about the method required to provide an adequate understanding and explanation of
law.2 Variations on this method are employed by jurists concerned with the most
20 I spell out what the “orthodoxy” is as a matter of general jurisprudence in Lucy, Understanding
and Explaining Adjudication, supra note 18 at 1-17. How this position manifests itself in some
philosophy of private law scholarship is incompletely explored in William Lucy, “The Crises of
Private Law” in Thomas Wilhelmsson & Samuli Hurri, eds., From Dissonance to Sense: Welfare State
Expectations, Privatisation and Private Law (Aldershot: Ashgate, 1999) 177.
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abstract questions of legal philosophy, such as those about the nature of law and
adjudication, and by those philosophers of private law who eschew both EAL and the
many versions of critical legal studies. The key tenet of this method is clear: any
adequate theoretical account (or explanation or understanding) of any social action,
practice, or institution must, in the first instance, capture the way in which that action,
practice, or institution is understood by those whose patterns of behaviour and
thought constitute
the action, practice, or institution. Let us label this “the
methodological injunction”. In Herbert Hart’s hands, this injunction was expressed in
the language of the “internal point of view” and “the internal aspect of rules.”‘” For
Hart, a theorist who took up the internal point of view would provide a prima facie
adequate account of legal rules and a legal system, since that account would
illuminate how those who accepted those rules and that system understood the rules
and system.”2 Although the substance of his account of law and adjudication is quite
different from Hart’s, Ronald Dworkin also embraced the internal or participants’
point of view as a fundamental methodological injunction.23 So, too, albeit in slightly
different language, do Coleman and Weinrib in their accounts of the nature of tort
law.24
The assumption that gives the methodological injunction initial plausibility-and
that requires that theorists attempting to understand or explain some aspect of social
life capture the viewpoint of those whose conduct and beliefs in part constitute that
aspect of social life-is hard to deny. It holds that social action is purposive and rule-
governed; therefore, it can only be fully understood or explained in light of the
purposes, goals, and values it is supposed to serve. It seemingly follows that access to
those purposes, goals, and values is best provided by determining what those whose
behaviour, patterns of thought, and expectations constitute the action (or practice or
institution) think are its purposes, values, and goals. That reference to the goals of an
action is indispensable for a proper understanding of the action is obvious from many
simple, low-level examples. Consider, for instance, someone raising his or her arm.
To understand this in anything more than purely physiological or neural terms, an
account is needed of the social context in which it occurred and the agent’s own view
of both that context and his or her conduct. Only then will it be known whether the
arm-raising event was (1) an action the agent did on his or her own as opposed to a
reflex or some other event that just happened to them; and (2) what the meaning (or
“21 H.L.A. Hart, The Concept of Law, 2d ed. (Oxford: Clarendon Press, 1994) at 89, 56.
22 See e.g. ibid. at 88-91.
23 See Ronald Dworkin, Law s Empire (Oxford: Hart, 1998) at 11-15. Note, however, the possibly
dissonant remarks in Ronald Dworkin, Justice in Robes (Cambridge: Belknap Press of Harvard
University Press, 2006) at 12, 15.
24 See Coleman, Risks and Wrongs, supra note 6; Coleman, The Practice of Principle, supra note 6;
Weinrib, The Idea of Private Law, supra note 6. Coleman’s interests do, of course, reach far beyond
philosophy of tort law. See The Practice of Principle, ibid. at 13-24. It is a mistake to assume that
Coleman and Weinrib are the only philosophers of private law to subscribe to this methodological
injunction. See also Alan Brudner, The Unity of the Common Law: Studies in Hegelian Jurisprudence
(Berkeley: University of California Press, 1995) at 153-210.
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point, purpose, or goal) of the conduct was (it could have been, inter alia, a vote in a
ballot, a sign that danger threatens, or part of a dance routine). It seems reasonable to
internal or
extrapolate from the apparent indispensability of reference
participants’ point of view in such instances to such reference being indispensable for
an understanding and explanation of all social practices and institutions. Such
practices and institutions are, after all, not much more than amalgams of many
the appeal of the
particular instances of conduct. On this basis, then, rests
methodological injunction. Are Coleman and Weinrib committed to it? Of the two,
Coleman’s commitment is, in the first instance, most obvious and unambiguous.
to the
to
the methodological
Coleman’s commitment
injunction arises from the
endorsement, in Risks and Wrongs, of both “top-down” and “middle-level” theory.”
The distinction between the two is important for Coleman, though he engages in
both: his account of contract is an instance of the former, while his account of tort is
an example of the latter. He writes:
In top-down explanations, the theorist begins with what she takes to be the set
of norms that would gain our reflective acceptance, at least among those
practitioners who adopt the internal point of view. Then she looks at the body
of law … and tries to reconstruct it plausibly as exemplifying those norms. Parts
of the law … [may] fail to be plausibly reconstructed … [and] identified as
mistakes … 26
By contrast, the theorist engaged in middle-level theory will “immerse[] herself in the
in ways that reflect a
practice itself and ask[] if it can be usefully organized
commitment to one or more plausible principles.” 27 From these statements, it seems
that the primary difference between the two approaches is their respective starting
points. Middle-level theory begins with an attitude of some deference toward the
action, practice, or institution; the trajectory of its account or explanation moves from
within the action, practice, or institution as the participants understand it to an
assessment of its nature, function, and content. By contrast, the starting point of top-
down theory is a set of norms that might account for the nature, function, and content
of the action, practice, or institution in question. The action, practice, or institution is
then “read in light of’ such norms, the principal constraint upon this process being the
participants’ own views of the action, practice, or institution.
Whether or not the distinction between top-down and middle-level theory is
ultimately defensible is unimportant for present purposes. More significant is what
both approaches have in common: each, albeit with different degrees of stringency,
embraces the internal point of view. That much is obvious from the statements just
quoted. But, lest there be any doubt about this, consider one more of Coleman’s
remarks about method: he “is concerned to understand law from the standpoint of
practitioners who ask not only, ‘How may we carry on this practice in a way that is
25 Supra note 6 at 8.
26 Ibid. [emphasis added].
27 Ibid.
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faithful to its inherent norms?’, but rather, ‘How may we carry on this practice in a
way that is faithful to norms that are both inherent in it and reflectively acceptable to
us?”” 28 If this is not an unambiguous endorsement of the methodological injunction, it
is hard to envisage what such an endorsement might look like.
Weinrib’s commitment to the methodological injunction arises from two steps
taken in The Idea of Private Law.29 However, as will be seen in section 13, this
commitment is at one point fairly shallow. The first step consists of Weinrib’s
arguments against functional accounts of law. The second is his effort to offer an
account of tort law that captures its “internal structure”, “self-understanding”, or, in a
cognate phrase, that is “immanent” within the law.” Functionalist accounts of law, for
Weinrib, are a diverse family of views united in the belief that any adequate account
of law must understand it in light of its goals. Weinrib’s principal charge against this
belief is that, in seeking to understand law in terms of goals external to it-in the
sense that they are not obviously and explicitly marked
functionalist accounts either cannot represent, or actually misrepresent, how law is
understood by those whose conduct and beliefs in part constitute it.3′ As a result, the
accounts of law offered by functionalist
from “juristic
experience”.3’ Furthermore, such theories are guided by the questionable assumption
that the law cannot be understood in its own tenns, that it must, to be intelligible, be
explained in light of something external. In this respect, functionalist theories embody
a common sense assumption about explanations, namely,
that an adequate
explanation of some phenomenon-Y, for example-must utilize terms neither
identical nor reducible to Y But even in common sense this assumption does not
theories are remote
in legal doctrine-
“28Ibid. [emphasis added].
29 Supra note 6. Weinrib’s recent work adds little to the methodological matters raised in The Idea of
Private Law, ibid. See e.g. Ernest J. Weinrib, “Correlativity, Personality, and the Emerging Consensus
on Corrective Justice”, online: (2001) 2:1 Theor. Inq. L. 4
Weinrib, “Corrective Justice in a Nutshell” (2002) 52 U.T.L.J. 349.
30 The Idea of Private Law, ibid. at 5, 14, 18.
3 ‘ There are two ways in which this aspect of Weinrib’s indictment of functionalism could be
understood. One is that he regards all reference to functions (and related categories like purposes,
goals, or values) as being references to something outside the conduct, practice, or institution in
question. Another is that he regards the particular functions that functionalists ascribe to law as being
external to it. There seems no reason to accept the first view, since it is simply implausible to think
that all functions must in some way be “external” to the thing in question (what, exactly, is “external”
in giving the function of a knife or a particular dance and why should this be thought problematic?). If
Weinrib’s
is not incompatible with the
methodological injunction’s invocation of point, purpose, or value of an action, practice, or institution.
His argument, as against functionalists, is that what participants accept as the purposes, goals, or
values of some conduct, practice, or institution are internal to that conduct, practice, or institution. At
least, he thinks this is true in the case of law and other notions and practices like love and friendship.
For more on Weinrib’s sometimes puzzling antifunctionalism, see Joseph Raz, “Formalism and the
Rule of Law” in Robert P. George, ed., Natural Law Theory (Oxford: Clarendon Press, 1992) 309;
Martin Stone, “On the Idea of Private Law” (1996) 9 Can. J.L. & Jur. 235 at 242-43.
is the second, then his antifunctionalism
true view
32 Weinrib, The Idea of Private Law, supra note 6 at 3.
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always obtain. As Weinrib observes, there are many things-love and friendship
among them-that we think need not (perhaps even should not) be understood in
terms external to themselves. Private law, Weinrib suggests, may be of this type; its
only “function”, if that word must be used, is to be private law.33
We still lack a particularly sturdy peg on which to hang Weinrib’s commitment to
the methodological injunction. A one-off invocation of “juristic experience” is too
slender a reed for this purpose. Evidence of a more robust nature is found in
Weinrib’s views as to what an adequate account of private law (and, by extension, tort
law) must look like. Such an account must treat “private law as an internally
intelligible phenomenon by drawing on what is salient in juristic experience and by
trying to make sense of legal thinking and discourse in their own terms.”34 Treating
private law in this way, reflecting juristic experience, “direct[s] us to our experience
of the law, especially the experience of those who are lawyers. This experience allows
us to recognize issues of private law and to participate in its characteristic discourse
and reasoning.”35 It does not appear unreasonable to regard these statements as
evidence of a commitment to the methodological injunction, or something very
similar. Furthermore, if they do not illustrate a concern with the understandings of
participants in the practices and institution of private law, then how is the emphasis
on “juristic experience”, “the experience of… lawyers”, and “internal intelligib[ility]”
to be understood? If the experience of lawyers is not the experience of participants in
the practices and institution of “law”, and if juristic experience is neither the
experience of lawyers nor participants in the “law”, then who or what are the
“participants” in this institution and its constitutive practices? Yet, read naturally and
charitably, the statements just quoted suggest at the very least a prima facie
the following
commitment to the methodological
statement plausibly be interpreted?
injunction. How else could
An internal account deals with private law on the basis of the juristic
understandings that shape it from within. Jurists share, if only implicitly,
assumptions about the institutional and conceptual features that their activity
presupposes, about the function these features play in their reasoning, and about
the significance of coherence for the elaboration of a legal order.36
Whether Weinrib’s commitment is any stronger than prima facie is one of the issues
explored next.
B. A Problem Shared Is Still a Problem
Coleman and Weinrib’s commitment to the methodological injunction raises a
difficulty that in one light can be seen as nothing more than a specific aspect of the
“33 Ibid. at 5.
34 Ibid. at 2-3 [emphasis added].
35 Ibid. at 9 [emphasis added].
36 Ibid. at 13 [emphasis added].
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issue of fit. The difficulty arises thus: what should theorists do when the account of
tort law they offer-which, in accord with the methodological injunction, aims to
capture what participants regard as significant features of the institution-does not
actually reflect the views of all participants? This is clearly a problem of fit by virtue
of the dissonance between some aspects of the theory in question and the views of
some participants. Suppose, as against Coleman, that there are some participants in
the practices and institution of tort law that understand it in the way either Richard
Epstein, George Fletcher, or proponents of EAL do.37 Suppose, as against Weinrib,
that some participants do not understand tort law in terms of either Aristotle’s
conception of corrective justice or Kant’s notion of abstract right. These or similar
suppositions are not implausible because some judges-predominantly
lawyers,
certainly participants in the institution, and surely loci of juristic experience-have
displayed a taste for characterizing tort law in terms antithetical to those used by
Coleman and Weinrib. The American judge Learned Hand’s formula for negligence
liability is but one noteworthy example.38 Moreover, these suppositions are clearly
plausible if the interpretative attitude has taken hold in a community. In that case,
citizens come to regard their institutions and practices not simply as existing but as
having value, taking them to serve some interest or purpose or to enforce some
principle. The requirements of their institutions and practices are not taken to be
“necessarily or exclusively what they have always been taken to be but are instead
sensitive to [their] point.”39 In such a context, it is not surprising to find more than
one account of the point, purpose, or value of an institution like tort law in
circulation. And this, of course, is exactly the context in which the fit problem arises.
There are at least two conceivable responses to this particular manifestation of the
fit problem. One is to insist that a theoretical account of any social practice or
institution must accommodate the views or language of participants at the outset only.
The substantive theoretical language of the account offered need not explicitly
capture or embody the language and views of participants; it must nevertheless be
connected to them, but only in the sense of being an explication thereof. On this view,
the theoretical account of the institution and its constitutive practices makes explicit
what is implicit, articulating the commitments participants incur by virtue of what
they do and say. Another response is to maintain that explanations and understandings
37 Richard A. Epstein, “A Theory of Strict Liability” (1973) 2 J. Legal Stud. 151; George P. Fletcher,
“Fairness and Utility in Tort Theory” (1972) 85 Harv. L. Rev. 537; Shavell, Economic Analysis of
Accident Law, supra note 13.
“38 United States v. Carroll Towing, 159 F.2d 169 at 173 (2d Cir. 1947). Also apparently antithetical
to corrective justice accounts of tort law is the dictum of Traynor J. in Escola v. Coca Cola Bottling,
150 P.2d 436 at 440-43 (Cal. 1944). For a discussion of this dictum, see Ernest J. Weinrib, “The
Insurance Justification and Private Law” (1985) 14 J. Legal Stud. 681. For some of Justice Posner’s
thoughts about EAL in the courtroom, see In re High Fructose Corn Syrup, 295 F.3d 651 (7th Cir.
2003). For a sustained argument that economic concepts do very little genuine work in judicial
decisions, see Richard W. Wright, “Hand, Posner, and the Myth of the ‘Hand Formula”‘, online:
(2003) 4:1 Theor. Inq. L. 4
39 Dworkin, Law s Empire, supra note 23 at 47.
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of social practices and institutions based on the methodological injunction need only
accommodate or be consistent with some views of some participants. Those attracted
to this response must then offer a justification for the limitation invoked: why, for
example, is it permissible for a theoretical account of tort law to accord only with the
views of participants of a certain class or type, or with the views of only sixty per cent
(or more or less) of participants?
It is clear that Weinrib adopts the first response to the fit problem:
An internal understanding of private law reaches corrective justice and the
Kantian concept of right by reflecting on the juristic experience of private law
and on the presuppositions of that experience …
The relationship between private law and its theory can be formulated as a
difference between what is explicit and what is implicit. In one sense, the
theory is implicit in the functioning of private law. Because they are categories
of legal theory rather than ingredients of positive law, corrective justice and
Kantian right are not themselves on the lips of judges. But even though these
theoretical categories do not figure explicitly in the discourse of private law,
they are implicit in it as a coherent justificatory enterprise, in that they provide
its unifying structure and its normative idea. They are as present to private law
as the principles of logic are to intelligible speech.40
Thus the fact that features of Weinrib’s account of the normative basis of private law
are absent from, or simply do not fit with, the language and understandings of some
participants is not on this view an embarrassment. At least, not a first glance. It does,
however, suggest that Weinrib’s commitment to the methodological injunction is not
as deeply rooted as might be assumed, since participants’ views inform his account
only at the beginning, having no great impact on its theoretical output. Furthermore, a
second and more discriminating glance shows that this response to the fit problem is
indeed a cause for embarrassment. It arises thus.
Posner claims that EAL unearths “[t]he Implicit Economic Logic of the Common
Law.”‘” EAL does this by examining the material at the forefront of juristic
light of the ukases of efficiency or wealth
experience-legal doctrine-in
maximization. And, while EAL allegedly offers an ad hoc or contingent account of
the bilateral structure of tort law, it certainly offers interesting and intelligible
accounts of some of tort law’s other features and doctrines. And, although Weinrib
clearly gives a prima facie plausible account of tort law’s bilateral structure, his
account of tort is not in general obviously better than the economic account. This is
because there are some features of tort that Weinrib’s account just does not fit: the
the balance of
most
explanatory advantage does not clearly fall in Weinrib’s favour. Nor can it be said, as
against EAL and in favour of Weinrib’s account of tort, that economic accounts of tort
interesting example
is perhaps strict
liability.42 Hence,
40 The Idea of Private Law, supra note 6 at 19-20.
41 Economic Analysis of Law, supra note 2 at 249.
42 The Idea of Private Law, supra note 6, c. 7.
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are completely alien to participants. Some participants, as we have already noted,
offer accounts of tort that utilize concepts central to EAL. If, by contrast, it is argued
against EAL that the majority of participants in the practices constitutive of tort law
do not speak the language of economic analysis, then the reply is equally plain. EAL
aims (as does Weinrib’s account) to capture what is implicit in the institution and its
constitutive practices-what participants take for granted-and to make explicit what
holds various features of the institution together.
Here, then, is the reason why Weinrib should be embarrassed. Despite the many
declarations that his account of tort law is “internal”, “immanent”, or in accord with
“juristic experience”, its methodological structure appears no different from that of
EAL. Both embrace a version of the surface-froth claim, since neither approach
regards the fact that many or some participants do not speak their theoretical
language-be it either the language of efficiency or of corrective justice-as
problematic. There is no problem here because, in giving theoretical accounts of tort
law, each approach supposedly articulates what is implicit in rather than what is
explicitly stated about the institution and its constitutive practices. In giving an
account of tort law, both approaches take seriously some aspects of what some
participants think, say, and do, albeit each approach takes different aspects seriously.
And neither approach regards itself as duty bound to take all aspects of all
participants’ views seriously. One of the primary advantages of Weinrib’s account of
tort law thus seems to have disappeared. The impression gained from his attack on
functionalist approaches to law, and his arguments in favour of “internal” accounts, is
that the latter are in some way more consistent with or closer to the views of
participants. The implication is that this proximity is a significant virtue, presumably
because the closer to participants’ views a theory is, the more accurate or fruitful or
illuminating it is likely to be. But the substance of Weinrib’s account is not obviously
closer to the views of participants than the accounts offered by EAL. Both are distant,
albeit in different ways, from the participants’ (or the internal or the juristic) point of
view. The embarrassment for Weinrib, then, is that of methodological parity with
EAL.
A final point must be noted before turning to Coleman’s response to the fit
problem. It concerns Weinrib’s claim, in the long quotation above, that corrective
justice and Kantian right are present in tort and private law in the same way as are
principles of standard logic in intelligible speech. This does not establish much
distance between Weinrib’s
this
intelligibility claim, if it is taken to imply that theories of tort law that do not invoke
corrective justice and Kantian right are unintelligible, is an exaggeration. Discourse
that ignores the rules of standard logic yields contradictions and is often unintelligible
in other ways. But economic accounts of tort law that eschew Kantian right and
corrective justice, though they might be objectionable for other reasons, are plainly
neither unintelligible nor contradictory. We might not like what EAL says, but we can
undoubtedly understand what it says.
account and economic
accounts because
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There are textual hints that suggest Coleman favours the second response to the
fit problem.43 In Risks and Wrongs, he criticizes accounts of tort law offered by
Fletcher, Epstein, and proponents of EAL because they do not fit the “core” of tort
law. That core consists of
two features, one structural, one substantive. The structural feature is that in the
typical case decisions about who should bear a loss are rendered within a
framework restricted to victims and those individuals they identify as their
injurers … The substantive feature is that if a victim can show that her loss is
wrongful in the appropriate sense, the burden of making good her loss falls to
the individual responsible for it.44
If it is plausible to regard professors of tort law as participants in that institution or, if
that is implausible,45 it is nevertheless plausible to think that their theoretical views
have adherents among participants, then Coleman’s response to those views, and the
fit problem in general, is unambiguous. To those participants who view the institution
in the ways suggested by Fletcher or Epstein or EAL, Coleman says: You have
misunderstood the core of your own institution. On this view, only those participants
whose views of the institution and its constitutive practices capture the core are taken
seriously in any theoretical account of the institution. Yet on what grounds is this
limitation justified?
At first glance this limitation seems suspiciously convenient for Coleman since
his corrective justice account of tort law comfortably fits the core. Furthermore,
suspicion toward this solution to the fit problem increases once two issues are
considered. These issues do not form a coherent package but this is irrelevant. They
are independent problems and, while the two cannot consistently be affirmed
together, each must nevertheless be dealt with. It seems that Coleman fails in this.
The first issue is posed by a denial: the accounts of tort law provided by Epstein,
Fletcher, and proponents of EAL do not fail to accommodate the core of tort law. This
denial can, furthermore, be accompanied by an assertion: these alternative accounts of
tort law’s core simply accommodate the core in a manner different from Coleman’s
account and, in the process, throw additional light upon other, closely related features
43 I ignore the textual evidence that suggests that Coleman also adopts the first response on the
ground that, if he does, he faces the same embarrassment that threatens Weinrib. There are also
indications in Coleman’s recent reflections on method in general jurisprudence that he would regard
this issue as altogether too social-scientific for his current taste. See Jules L. Coleman, “Methodology”
in Jules Coleman & Scott Shapiro, eds., The Oxford Handbook of Jurisprudence & Philosophy of Law
(Oxford: Oxford University Press, 2004) 311. Since these reflections are not directly addressed to
issues of philosophy of tort law, and since their implications for that enterprise are far from
transparent, they are not further considered here.
44 Coleman, Risks and Wrongs, supra note 6 at 198.
45 Just about every invocation of the methodological injunction, be it within philosophy of private
law or jurisprudence in general, is marked by a failure to ever specify exactly who “participants” in
the institution of law and its constitutive practices (or some segment thereof) might be.
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of the law and other systems of regulation.46 So, for example, proponents of EAL
could concede that their account of the bilateral structure of tort law is not
“necessary”
in any strong sense, thus accepting that their explanation of why
claimants sue defendants is supposedly less fundamental than Coleman’s. But since
economic accounts offer insights into other aspects of tort law-and because ex
hypothesi the core is not regarded as fundamental in Coleman’s sense by each and
every participant in the institution-why must this be considered a failing of
economic accounts? Some participants might regard the core of tort law as simply a
historical accident and, since there are many such in the common law, this possibility
is surely not remote. But it nevertheless seems that Coleman’s inclination is to
maintain that participants who hold this view are in the grip of a mistake. Yet the
basis of this mistake is far from transparent.
Moreover, the claim that the accounts in competition with Coleman’s fit tort law’s
core, but in different way than does his account, seems even more plausible when the
theories of Epstein and Fletcher are borne in mind. For in one respect, namely, their
emphasis upon the notions of wrongfulness and corrective justice, the substance of
these accounts is much nearer to some participants’ views than is the substance of
economic accounts of tort law.47 If it is indeed true that these competitor accounts of
tort law fit its core, then Coleman must find another basis, consistent with the
methodological injunction, on which to recommend his account.48 The argument to
that end might also show why participants who do not regard tort law’s core as
fundamental in the same way as does Coleman are mistaken.
The second issue facing Coleman’s account is that of the significance of the core.
Why
is the core of tort law dominant, such that any theory that does not
accommodate it must be classed a failure? Two arguments are clearly unavailable to
Coleman in response to this question. He cannot, first, maintain that participants in
the institution regard the core as crucial in the way he does, since ex hypothesi not all
do (we are assuming that some participants’ views echo those of Epstein, Fletcher, or
EAL). This response simply begs the question against these opponents. Nor can
Coleman argue that the views of participants who take the core seriously in the way
he does are more important than the views of other participants. At least, he cannot
46 They therefore have the virtue of unifying previously discrete issues (Jules L. Coleman, “Second
Thoughts and Other First Impressions” in Brian Bix, ed., Analyzing Law: New Essays in Legal Theory
(Oxford: Clarendon Press, 1998) 257 at 299) or “consilience”, as Coleman subsequently calls it (The
Practice of Principle, supra note 6 at 41-53). For possible instances of consilience, see Shavell,
Economic Analysis ofAccident Law, supra note 13 at 186-290.
“47 One example is Epstein’s discussion of causation (a vital component of wrongfulness/wrongdoing
on almost every lay conception of corrective justice). See “A Theory of Strict Liability”, supra note 37
at 160-71. Another is Fletcher’s “paradigm of reciprocity”, which resonates with many of our
pretheoretical assumptions about the infliction of harms and costs on others (“Fairness and Utility in
Tort Theory”, supra note 37 at 543-56).
48 1 examined some possible responses that Coleman might make to this issue in William N.R. Lucy,
“Rethinking the Common Law” (1994) 14 Oxford J. Leg. Stud. 539 at 558-64.
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argue in this way on the basis of his theory of corrective justice, since this normative
explanatory theory of the institution is then apparently determining the shape (the
core) of that which it purports to explain. This seems suspect if we expect Coleman’s
corrective justice account of tort law to illuminate features of the institution that must
in some significant sense be independent of that account. One obvious indicator of
such independence is that the features in question are, in the first instance, identifiable
without recourse to the theoretical account utilized to explain them. Expecting some
features of the theoretical object to be independently identifiable in this way leaves
to offer competing explanations and
room for different theories or accounts
understandings of those features. And it is on the basis of their relative success or
failure in fitting such features that rival accounts can be assessed.49
But if the features of an institution that a theoretical account must accommodate
are determined exclusively by the theoretical account itself, then this indicator of
success or failure is otiose. If it is the case that Coleman’s corrective justice theory
both identifies the core and determines why it is the most significant feature of tort
law, and his account comfortably accommodates this feature, this cannot be used to
discredit alternative theories. This is because, if alternative theoretical accounts of the
institution function in the same way as Coleman’s appears to, then those accounts
themselves determine which features of the institution are significant and why. They
are thus guaranteed to succeed, yet not, of course, in the same way as is Coleman’s
theory. For there is no reason why these alternative theories must regard as significant
those features of the institution that Coleman’s theory regards as important.
The general difficulty for Coleman here is the distance between his theoretical
account of tort law and the features of that institution that any theoretical account
must fit in order to be plausible. If his theory determines what features of the
institution are significant, then his theory presumably cannot fail to fit them; it
therefore manifests the ad hoc deficiency that allegedly also ensnares economic
accounts of tort law. Judged solely on the basis of the arguments in Risks and Wrongs,
Coleman lacks a satisfactory way of tackling this difficulty. That he recognizes the
difficulty is plain from his subsequent work.
In The Practice of Principle, Coleman summarizes his view of the relation
between tort law and corrective justice thus:
Starting at … the ground level, we have practices of corrective justice-a
system of practical inferences that purports to determine when the imposition of
a liability is justified. The structure of these inferences in tort law gives
determinate content to its [tort law’s? corrective justice’s?] key concepts, and
thereby makes explicit the requirements of the principle of corrective justice;
while at the same time the principle of corrective justice organizes the concepts
of tort law, explains the nature and structure of the inferences those concepts
license, and in doing so, guides the practice of tort law. The principle of
49 Coleman accepts that some features of tort law are theory-independent. See Risks and Wrongs,
supra note 6 at 383, 480; “Second Thoughts and Other First Impressions”, supra note 46 at 301.
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corrective justice, in turn, occupies a mid-level between the practices of tort law
and an upper-level principle of fairness in allocating the costs of life’s
misfortunes. Here again the higher principle is said to be given determinate
content by the practices subordinate to it, while at the same time guiding and
constraining them.5
This passage marks Coleman’s deployment of a holistic approach to explanation and
justification. It derives from a more general semantic and epistemic philosophical
position he calls pragmatism. It also promises a quick and easy solution to the
problem broached in the previous paragraph. For current purposes, the key feature of
a holistic approach is that “the content of every concept depends to a greater or lesser
degree on the content of every other.”‘” Thus, the content of corrective justice is in
part provided by the institution of tort law and its constitutive practices, the institution
itself being a manifestation of corrective justice. Corrective justice both informs and
is informed by a more abstract notion of fairness that also exercises some normative
force over the practices of tort law, the latter being a detailed manifestation of the
notion of fairness as applied to the distribution of human misfortunes. Coleman’s
statement of the precise way in which corrective justice explains tort law-
when we see the inferential practices of tort law in the light of the principle of
corrective justice, they hang together in a way that makes the best sense of
those practices. Add to this the fact that tort law is plainly a normative practice,
and that the way corrective justice makes sense of it is by expressing the norm
that governs it52
-must be read in light of his commitment to holism. Thus, the direction of the
explanation is not just one way, from corrective justice (explanans) to tort law
(explanadum). Each must to some extent illuminate and determine the other.
What are we to make of Coleman’s holism: does it dispel the threat of the ad hoc
deficiency and eradicate any doubt about the lack of distance between his theoretical
account of the institution of tort law and the institution itself?. Not completely, for this
doubt has two dimensions. One dimension is the distance from institution to
theoretical explanation, the issue here being that the features of the former, and their
significance, must surely be identifiable independently of the latter. The other is that a
good explanation or understanding must have some effectiveness within the
institution; it must do some discernible work in determining or illuminating at least
some of the moves participants make within the institution. We already know that
Coleman has little to say about the former in Risks and Wrongs. What, if anything, do
his thoughts in The Practice of Principle add?
Not a great deal, though there is an interesting absence in The Practice of
Principle. He still maintains that any account of tort law must explain the core, but he
lacks a legitimate argument as to why the core should be considered important. Such
50 Supra note 6 at 54-55.
51 Ibid. at 55.
5 2 ibid.
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an argument must, remember, rest neither on unanimity among participants in the
institution nor derive the core’s importance from the theoretical account that seeks to
understand or explain the core. One might therefore expect to find in The Practice of
Principle an argument demonstrating the significance of the core in some other way.
is not fulfilled. There is, indeed, no explicit recourse to the
This expectation
methodological injunction in that part of The Practice of Principle that develops
Coleman’s own view of the relation between tort law and corrective justice. The
injunction does appear in Coleman’s discussion of the internal point of view, where
his principal interest is Hart’s account of rules. But it is not in play elsewhere. Since
Coleman does not invoke the methodological injunction, he has no obvious argument
to justify the significance of the core. At least, he has no such argument that draws
upon the views of participants.
Yet this might be an exaggeration. For, although Coleman does not explicitly
invoke the methodological injunction in his discussion of tort in The Practice of
Principle, he might do so implicitly. The vehicle of this implicit commitment, it could
be argued, is Coleman’s statement of the type of analysis The Practice of Principle
embodies: it offers a “conceptual analysis” of tort law. Providing a “conceptual
analysis of a social institution is to identify the central concepts that figure in it, and
to explicate their content and their relationships with one another: we identify the
criteria for the proper application of each key concept in the domain and … show
what these … criteria have in common.”53 And how are the central concepts and
criteria of tort law to be identified, if not by recourse to the views of participants?
When taken in conjunction with one of Coleman’s criticisms of economic accounts of
tort-they overlook the “inferential practices of participants”4-there
is suggestive
evidence that the methodological injunction is in play, albeit in a background role.
But to state this argumentative line is to show its very obvious limitation. For even if
Coleman is implicitly committed, by virtue of doing conceptual analysis, to the
methodological injunction, restating that commitment does not answer the questions
is a
already
methodologically sound argument showing the significance of the core; the fact that
he does, despite first impressions, invoke the methodological injunction in The
Practice of Principle does not satisfy this requirement. It is, rather, to arrive at a point
where the requirement becomes salient, assuming participants in the institution do not
speak with one voice on either what counts as the core or why it is significant.5
from Coleman
raised about
it. What
is currently
required
Coleman tackles the second dimension of the distance problem in more direct
terms in The Practice of Principle, though his treatment is not entirely satisfactory.
This is primarily because his demonstration of the way in which participants’ moves
53 Coleman, The Practice of Principle, supra note 6 at 13.
54 Ibid. at 25.
55 He maintains that “[a]ny conception of the core of tort law is bound to be controversial” (“Second
Thoughts and Other First Impressions”, supra note 46 at 297) but the reasons for this view are not
stated; the thought is offered en passant.
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within tort law can be illegitimate from the perspective of corrective justice is
redundant. Two points show this. First, note how odd, from the perspective of current
tort law, would be one of the moves that Coleman rules out. He holds that fairness
“mediated by corrective justice” requires that no one be permitted to unilaterally set
the terms of interaction with other individuals. 6 This, he says, rules out any move in
tort law to adopt a subjective standard of fault or negligence. He is undoubtedly right
about this. But note how this choice-is the standard of the duty subjective or
objective?-is quite unlike any that actually faces current participants in the
institution. When faced with doctrinal choices, participants frame those choices in
terms of the specific doctrine in question. They ask, for example, what the nature is of
the duty owed by one who is alleged to have created a private nuisance, or what the
standard of care is of one who professes special skill or expertise. It is doubtful that
participants ever question whether the standard of the duty is subjective or objective.
This brings the second point to the fore. Coleman’s attempt to show that
corrective justice rules out some moves within tort law, thereby also showing that
corrective justice is to some extent independent of that which it aims to explain,
succeeds only in eliminating moves current participants are never likely to make. The
move he claims corrective justice rules out is not now available in tort law. That is to
say: the issue of whether the standard of the duty of care in negligence is subjective
or objective is not a live one. The standard of the duty is objective and that is more or
less certain.57 Thus the fact that corrective justice rules out a move in the institution
that is unlikely to be considered by participants is a dubious endorsement. This is
rather like saying our theoretical account of chess rules out what the rules of chess
forbid: how does that reflect to the credit of the theory? What surely would redound
to the credit of our theoretical explanation would be this: its capacity to rule out
moves that are actually conceivable and currently open within the institution and its
constitutive rules and practices. Whether or not Coleman’s theory of corrective justice
does that is unclear.
The conclusion to this section is clear. With regard to Coleman, the position is
that the ad hoc deficiency looms over his account of tort law just as it looms over
economic accounts. Weinrib, too, struggles to distinguish his account of tort law from
economic accounts, albeit in a quite different respect. While the surface-froth claim is
a hallmark of EAL, and is quite possibly the reason why many participants find
economic accounts of tort law counterintuitive, Weinrib’s account also relies on
something like that claim. It is undoubtedly foolish to deny that there are similarities
between economic and noneconomic accounts of tort law, but these two particular
similarities are of special significance. Their existence undermines what, as compared
56 The Practice of Principle, supra note 6 at 57.
17 There is some doubt around the edges. See e.g. McHale v. Watson (1964), 111 C.L.R. 384
(H.C.A.); Mullin v. Richards, [1998] 1 All E.R. 920 (C.A.). For a critical assessment of the standard of
the duty-of-care rule for children and its cognates, see Mayo Moran, Rethinking the Reasonable
Person: An Egalitarian Reconstruction of the Objective Standard (Oxford: Oxford University Press,
2003).
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with EAL, could be regarded as uniquely different and distinctive about Coleman’s
and Weinrib’s accounts: their ability to offer a theory of tort law that is both a
methodologically respectable fit with participants’ views and intellectually deep.
III. Corrective Justice
For Coleman, Weinrib, and others, corrective justice is the notion that gives tort
law its normative intelligibility. Although corrective justice raises many interesting
questions, only one is tackled here: what is the proper relationship between it and tort
law? Since corrective justice is offered by Coleman and Weinrib as the theoretical
explanation of many of tort law’s features and much of its content, this is again a
question about the way in which a theoretical (and in this case normative) explanation
must “fit” its object. This question becomes salient primarily because it is generally
accepted that tort law’s bilateral structure is not the only feature that an account of tort
must explain. As a general matter, this is surely right, since it is usually assumed that
a respectable social-scientific account of an institution, practice, or segment of
conduct must, other things being equal, aim to be as general as possible. The more
segments of conduct of a similar type that a theory explains, or the more aspects of a
practice or institution it gives an account of, the better. Such generality can, however,
be bought at too high a price, for some general theoretical accounts can function as a
Procrustean bed, lopping off the elements of the theoretical object that make it
particular and different.
The difference between the issue tackled in part II and the question of how well
corrective justice fits the institution and cognate practices of tort law is that the
former is conceptually prior to the latter. The overarching question there was “What
aspects of an object must a theory of that object accommodate?” The concern was
therefore with how theorists identify and determine the significant features of the
theoretical object. Here, the features and significance of the theoretical object-tort
law-are more or less taken for granted. The question is, instead, “How well does the
alleged normative explanation or theory (corrective justice) fit that object (tort
law)?”58 For Coleman this question is no longer open: “[W]hether or not corrective
justice is an ideal to which the law should aspire, it is the principle that best explains
what tort law is.'” There is truth in this claim insofar as corrective justice appears to
fit neatly with, and provide a plausible normative basis for, the bilateral structure of
tort law. And, if this claim is true, it provides a ready-made rejoinder to EAL’s
is
efficiency claim. For that claim is undermined not just because efficiency
58 Talk of “normative explanations” and of the “normative intelligibility” of tort law, or of its
“normative basis” or “normative foundation” does not, in this context, carry any implication that tort
law is indeed normatively justified. Attempts can be made to make an institution normatively
intelligible without morally or politically endorsing that account of its normative intelligibility. For
consideration of some the varieties of foundation talk in this context, see William Lucy, Philosophy of
Private Law (Oxford: Clarendon Press, 2007), c. 7.
59 The Practice of Principle, supra note 6 at 12.
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normatively troubling when conceived as a significant moral or political value; it is
also weakened because efficiency cannot, when compared with corrective justice,
give a properly noncontingent or non-ad hoc account of tort law’s bilateral structure.
Is it, then, a mistake to reopen this question? Perhaps so. However, there are two
conceivable arguments that question the supposedly virtuous tight fit between
corrective justice and tort law that Coleman, Weinrib, and others envisage. What
these arguments share is that each regards this tight fit as a vice rather than a virtue.
They also have this feature in common: neither is particularly powerful. The first
maintains that, as opposed to providing an independent justification for tort law,
corrective justice is actually immanent in the institution itself. Corrective justice thus
cannot serve as a justification or explanation of tort law because it lacks the necessary
distance from its object.6″ The underlying idea is that justifications and explanations
of an object “0” must be in terms different from those constitutive of 0. Hence, a
good explanation or justification of 0 must invoke notions A, B, and C and these
must be neither identical nor reducible to 0. The second objection makes a claim that
is the reverse side of the ad hoc deficiency that allegedly undermines EAL’s account
of tort law’s bilateral structure. It holds that corrective justice has no independent
moral, political, or other normative value, having been recalled from rightful oblivion
to provide ostensible legitimacy for an institution badly in need of genuine
justification. When aimed at economic accounts of tort law, the ad hoc deficiency
holds that the theory in question (EAL itself) illegitimately determines the contours of
that which is to be explained (tort law).6 t When directed at corrective justice
accounts, the deficiency holds that the explanatory theory (corrective justice) is
illegitimately conjured up to fit that which must be made to appear normatively
intelligible (tort law).
The best response to this version of the ad hoc deficiency is to show the general
plausibility, power, and range of corrective justice. This Coleman and Weinrib have
endeavoured to do and, while their accounts of corrective justice certainly face some
problems, they cannot be said to have failed in this task. Corrective justice is now the
central idea in philosophy of tort law and this is in the main a result of the work of
these two jurists. The idea remains interesting and fruitful, which is surely enough to
undermine the claim that it was conjured up in a vain attempt to support the
unsupportable. Coleman and Weinrib also have
ready but not completely
unproblematic
the first objection. Weinrib’s reply consists of his
understanding of what it is to give a non-functionalist, immanent, or internal account
of law in general and tort law in particular.62 On this view, the distance between
replies
to
60 The objection is most often aimed at Weinrib. See Robert L. Rabin, “Law for Law’s Sake”, Book
Review of The Idea of Private Law by Ernest J. Weinrib, (1996) 105 Yale L.J. 2261 at 2269 (Weinrib’s
account of tort law allegedly suffers, among other ailments, from being “reflexive” and “hermetic”).
The general issue is best explored in Stone, “On the Idea of Private Law”, supra note 31.
61 It was maintained in part I, above that this problem also besets Coleman’s account of tort. See
62 The Idea of Private Law, supra note 6 at 1-22.
text accompanying notes 48-57, above.
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response
in
object and theoretical explanation is not as wide as on the view that informs the
the notions of consilience and
objection. Coleman’s
embodiment,63 both of which serve to reduce the distance between object and
explanation. Since the issue of corrective justice being too close a fit with tort law,
and the related aspects of both Coleman’s and Weinrib’s methods that it raises, have
already been subject to a good deal of analysis, they are henceforth set aside.64
is found
This does not mean, however, that the issue of fit can be completely sidestepped:
it simply arises in a different form. An altogether more unusual and relatively recent
objection to the corrective justice accounts of tort law offered by Coleman and
Weinrib has been formulated by Benjamin Zipursky.65 It is unusual because, as
opposed to accepting the assumption informing both objections just noted, Zipursky
rejects it. Rather than arguing that corrective justice is too close to that which it
supposedly explains and makes normatively intelligible, Zipursky maintains that it is
in fact too far away. He claims there are at least two fundamentally significant
features of tort law that corrective justice, as articulated by Coleman and Weinrib,
does not but should accommodate. Zipursky is therefore likely either to reject
Coleman’s view that corrective justice provides the best normative explanation of tort
law, or to hold that it is indeed the best available normative explanation but that, as
such, it is still not very good. Two questions immediately arise about Zipursky’s
challenge to corrective justice accounts. First, what are the features that these
accounts should but do not accommodate? Second, why must these features be
accommodated by any acceptable account of tort law?
A. Substantive Standing and the Liability to Correct
The first feature is what Zipursky calls the “substantive standing” rules of tort
law.66 These hold that “a plaintiff cannot win unless the defendant’s conduct was a
wrong relative to her, i.e., unless her right was violated.”67 Substantive standing rules
63 The Practice of Principle, supra note 6 at 37-102.
‘4 See e.g. Lucy, “Rethinking the Common Law”, supra note 48; Stone, “On the Idea of Private
Law”, supra note 31; Zipursky, “Pragmatic Conceptualism”, supra note 14. Methodological matters
also underlie some of the reservations expressed in Rabin, supra note 60 and are central to Martin
Stone’s scrupulous “The Significance of Doing and Suffering” in Gerald J. Postema, ed., Philosophy
and the Law of Torts (Cambridge: Cambridge University Press, 2001) 131. For the best general
treatment of these and related issues as they arise for philosophy of private law, see N.E. Simmonds,
“The Possibility of Private Law” in John Tasioulas, ed., Law, Values and Social Practices (Aldershot:
Dartmouth, 1997) 129.
65 See e.g. Benjamin C. Zipursky, “Civil Recourse, Not Corrective Justice” (2003) 91 Geo. L.J. 695
[Zipursky, “Civil Recourse”]; Benjamin C. Zipursky, “Rights, Wrongs, and Recourse in the Law of
Torts” (1998) 51 Vand. L. Rev. 1 [Zipursky, “Rights, Wrongs, and Recourse”]. For two other
interesting instalments of this project, see Benjamin C. Zipursky, “Philosophy of Private Law” in
Coleman & Shapiro, supra note 43, 815; Zipursky, “Pragmatic Conceptualism”, supra note 14.
66 “Rights, Wrongs, and Recourse”, ibid. at 10.
67 1bid. at 4.
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“state[] the conditions under which an individual is … empowered to act against a
defendant: only when she has been legally wronged by the defendant, only when her
own legal right has been violated by the defendant.”‘6 Thus described, substantive
standing rules seem simultaneously obvious and mysterious. For lawyers and many
nonlawyers alike, it goes without saying that legal action for tortious wrongs can be
brought only by one who was a victim of the alleged wrongdoer’s conduct. Since this
is obvious, it seems mystifying how the legal rules that elaborate this point within the
context of particular torts can present a problem for accounts of corrective justice.
Surely there is no chance of these accounts overlooking these rules? Zipursky’s
answer is clear: the substantive standing rules are indeed overlooked by corrective
justice accounts of tort law.
The operation of the substantive standing rules is probably best illustrated by
Zipursky’s example, the famous New York case of Palsgrafv. Long Island Railroad.69
An employee of the defendant railroad company negligently shoved a passenger onto
a departing train. As a result, the passenger dropped the box he was carrying that
contained fireworks. The fireworks exploded on impact and the explosion dislodged
some scales at one end of the platform. The scales fell and injured the claimant. The
claimant sued the railroad company in negligence for the personal injury suffered. It
was accepted that the defendant had been negligent and some of the judges also
conceded that there was a causal connection of sorts between his breach of duty and
the claimant’s harm. The claimant’s action nevertheless failed because the harm to her
was not a reasonably foreseeable result of the defendant’s breach. In giving the
majority judgement, Chief Justice Cardozo held, inter alia, that “[r]elatively to [the
claimant], there was no negligence at all,” and that “[w]hat the plaintiff must show is
6a wrong’ to herself; i.e., a violation of her own right, and not merely a wrong to some
one else, nor conduct ‘wrongful’ because unsocial, but not ‘wrong’ to anyone.””7 The
requirement in Palsgraf that the claimant establish that she was wronged is, for
Zipursky, a standing rule:
It concedes that the defendant has violated a legal norm and that the plaintiff is
injured, but specifies how the plaintiff must be situated in order to have a right
of action against the defendant. The criterion offered for standing, according to
the analysis in Palsgraf, is that the plaintiff herself must have been legally
wronged (her right must have been violated) under the substantive norm in
question-in this case, negligence. Because the criterion for standing offered by
this rule is in this sense substantive, I shall refer to it as the “substantive
standing rule.”‘”
According to Zipursky, there are many similar rules in other areas of tort law. This
claim, like that about Palsgraf in particular and negligence in general, is surely
undeniable.
“68Ibid. at5.
69 162 N.E. 99,248 N.Y 339 (App. Ct. 1928).
70 Ibid. at 99-100.
71 “Rights, Wrongs, and Recourse”, supra note 65 at 10.
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Zipursky thinks corrective justice accounts of tort law fare badly when faced
with the substantive standing rules. He says that
in a wide range of cases, tort law declines to impose liability on defendants in
favor of the bearers of … wrongful losses. Being the bearer of a wrongful loss
for which the defendant is responsible is therefore not sufficient to generate
liability to the plaintiff.[… T]his observation undercuts the claim, inherent in
corrective justice theory, that … tort law is based on a principle that those who
wrongfully injure others have a duty to repair for the losses flowing out of those
injuries for which they are at fault.72
Slightly more equivocal is Zipursky’s view of how corrective justice accounts fail in
their treatment of these doctrinal rules. For, despite the unambiguous nature of the
statement just quoted-which appears to commit Zipursky to the claim that corrective
justice accounts and the substantive standing rules are incompatible-he makes other
statements in which the problem is less severe. So, on at least one occasion his
is that corrective justice accounts offer an
language suggests that the problem
implausible explanation of the substantive standing rules. On another, he conceives
incompletely
the difficulty as an oversight, corrective justice accounts being
cognizant of the substantive standing rules.73 And it is also possible, though the
textual evidence is weak, that Zipursky thinks the problem is instead that corrective
justice accounts fail to provide a respectable normative justification for substantive
standing rules.
The strongest version of Zipursky’s argument holds that corrective justice
accounts are incompatible with the substantive standing rules. This is stronger than
either the claim that corrective justice accounts offer an implausible explanation of
these rules or that they overlook them. Since an implausible explanation might be
made plausible, the implausibility accusation is hardly fatal. Furthermore, this
in its wake questions about why that which is supposedly
accusation brings
implausibly explained must be explained and about the criteria of “plausibility”. Nor
does oversight, though certainly a failing, entail incompatibility. That corrective
justice accounts of tort law overlook some feature of the law does not mean that such
accounts lack the capacity to explain that feature. And since Zipursky apparently
sidesteps the issue of the normative justification for substantive standing rules,74 it
seems unlikely that his complaint against Coleman and Weinrib is that they offer an
implausible normative justification for these rules. An important issue to be addressed
is, then, Zipursky’s incompatibility claim and its supporting arguments. Before
turning to it-the task is undertaken in section B-Zipursky’s other argument
72 “Civil Recourse”, supra note 65 at 714.
13 “Rights, Wrongs, and Recourse”, supra note 65 (corrective justice “has difficulty accommodating
the substantive standing rule” at 79); “Civil Recourse”, ibid. (corrective justice “misses the true
structure of tort law” at 754). If one misses something, one can be reminded of it; that something is
difficult to accommodate does not mean that it is impossible to accommodate.
74 “Rights, Wrongs, and Recourse”, ibid. at 5-6.
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showing the allegedly great distance between corrective justice accounts and the
details of tort law must be stated. This is the “liability to correct” argument.
The second feature of tort law that corrective justice accounts must fit, according
to Zipursky, is its conferral, upon claimants, of a power to take legal action against
defendants. Correlative to this, tort law subjects defendants to a liability to correct the
wrong they have done. Zipursky is surely right about this. It is, first, false that
claimants have a duty in tort law to sue those who have allegedly committed torts
against them. Claimants can bring legal action if they wish, but they are not obliged
to do so. At most they have a Hohfeldian power to bring legal action.75 Second, it
seems mistaken to think that a defendant has a tort law duty to repair the wrong she
has allegedly done to the claimant prior to the claimant exercising the power to bring
legal action and a court deciding that the defendant is indeed liable. The most that can
be said here is that the defendant faces a potential Hohfeldian liability to correct the
alleged wrong; that, of course, is quite different from having a duty to correct that
wrong.76 In normal circumstances, a genuine legal duty must be discharged as soon as
it arises and is, within some limits, strict. Such duties cannot be sloughed off because
they are inconvenient or demanding. A legal liability, by contrast, is inert until such as
time as it is triggered and there is no guarantee it will ever be triggered and converted
into a duty. Further, the “inert-ness” of liabilities in tort law is evident from the fact
that claimants have no duty to pursue legal action.
The import of these two seemingly incontrovertible points is, according to
Zipursky, clear: corrective justice accounts of tort law do not appreciate the first and
thus cannot accommodate the second. This is because corrective justice accounts hold
that tort law embodies two principles:
[T]he law of torts embeds a principle, stating that one who wrongfully injures
another is responsible for the losses he or she creates. It contains another
principle, to the effect that one who is responsible for another’s loss also has a
duty to repair that loss. Hence, a defendant who wrongfully injures a plaintiff is
responsible for the loss she creates in the plaintiff. It follows that defendants
have a duty to repair plaintiff’s losses. By imposing liability upon defendant to
the plaintiff, tort law is recognizing this duty from defendant to the plaintiff.77
Corrective justice accounts err because of their commitment to the second principle.
For, “even with paradigmatic ‘duty of repair’ cases under the tort law, corrective
justice theory inaccurately describes the structure of a duty of repair by failing to
respect the distinction between a liability and an affirmative duty to pay.”’78 While
there are many affirmative legal duties to pay-the legal obligation to pay taxes is
one-there is no such duty in tort law:
75 See Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Legal Reasoning
and Other Legal Essays (New Haven: Yale University Press, 1923) at 50-60.
76 See ibid. at 36-38.
“77 “Civil Recourse”, supra note 65 at 709 [footnotes omitted].
71 Ibid. at 710.
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[A] defendant’s tortious injury to another does not give rise to a [legal] duty of
repair unless that defendant has, at a minimum, been sued. The defendant does
not ordinarily have a freestanding legal obligation to pay independent of any
action against her. … [F]ailure to pay does not breach any statute, private
agreement, or principle of the common law requiring payment prior to suit, if in
fact the tort was committed. The defendant remains legally entitled to his or her
money at least prior to judgment. Tortfeasors may, as a legal matter, wait to be
sued. They will face no additional liability for bad faith failure to pay, even if
they have sufficient reason to know that they committed a tort and that a
plaintiff will likely prevail against them in litigation, and even if the conditions
are such that a moral duty to pay may be recognized. Declining to pay is well
within the defendant’s legal rights in every sense.
79
Zipursky clearly thinks that corrective justice accounts espouse a principle that
wrongdoers have a duty to correct their wrongs, while the law does not espouse this
principle. He also thinks this more than a minor misdescription. Its significance,
though, is difficult to fathom, for it is uncertain how such a misdescription can
become so fundamental as to completely undermine corrective justice accounts.
What is needed here is just what was needed with respect to rules of substantive
standing: an argument showing that these features of tort law are crucially important.
The argument Zipursky offers to this end is methodological. He claims that the
is “pragmatic
method most
conceptualism”.” As against functionalist approaches, the predominant instance of
which is EAL, pragmatic conceptualism does not explain tort law by reference to
whatever goals the institution and its practices serve, either intentionally or
unintentionally. Rather, the pragmatic conceptualist’s
the nature of
likely
to
illuminate
tort
law
methodological premise [is] that an account of the law is inadequate if it fails to
provide an analysis of the concepts embedded within the law. … A rough and
is as follows:
preliminary version of this argument and its application
to
is necessary
the concepts embedded within legal materials
Analyzing
identify the content of those legal materials; identifying the content of those
legal materials is necessary to state what the law is; a theory of the law is
inadequate if it cannot state what the law is; thus, an account of the law is
inadequate if it does not provide an analysis of the concepts embedded within
legal materials. 8′
If Zipursky’s characterization of philosophical pragmatism is correct, and the
doctrine itself plausible, then our practices and institutions “are partially constitutive
of our ways of thinking … “82 Thus “the understanding of legal concepts requires an
understanding of the structure of practical inferences in which our legal concepts and
“7 Ibid. at 720.
80 Ibid. at 706; “Pragmatic Conceptualism”, supra note 14.
“8! “Civil Recourse”, ibid. at 705. For a similar statement, see Zipursky, “Pragmatic Conceptualism”,
ibid. at 465-66.
82 Zipursky, “Civil Recourse”, ibid at 707.
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principles are involved.”83 Seen in this light, corrective justice accounts of tort law
hold that
[w]hat is essential to tort law’s structure is that courts infer from a defendant’s
wrongful injuring of a plaintiff that the defendant must compensate the plaintiff
for the injury … Corrective justice theory explains this pattern in terms of a
principle that states that one who has wrongfully injured another has a duty of
repair … to the victim. The key to understanding the structure of the law is
simply understanding that principle.84
The substantive standing rules and the liability to correct are obviously embedded in
tort law and must therefore be explained in such a way as to illuminate the inferences
they license and their animating principles. If Coleman and Weinrib are indeed
pragmatic conceptualists, then they must offer “an explanation of the concepts and
principles that are in the law, as these concepts and principles appear on their face and
as they are deployed in ordinary inferences by legal participants.'”85
The methodological import of pragmatic conceptualism is much the same as the
methodological injunction outlined in part II. The principal difference is one of
pedigree, the latter tracing Coleman’s and Weinrib’s methodological commitments to
broadly Hartian and social-scientific roots, the former placing them within the
tradition of American philosophical pragmatism (or naturalism).86 That the two
approaches are not necessarily incompatible is, of course, obvious; nor is it a surprise
that the philosophical and social-scientific roots of this methodological commitment
are diverse. Equally obvious is that an approach that explicitly insists on accounts of
practices and institutions taking up the participants viewpoint is more immediately
subject to the problems outlined in part II than is pragmatic conceptualism. This does
not imply that pragmatic conceptualism is immune to these or closely related
problems since, on Zipursky’s account, pragmatic conceptualism is also committed to
taking the participants’ viewpoints seriously.
three substantial weaknesses (two of which overlap)
The arguments from substantive standing and liability to correct are only two of
the three that Zipursky offers against corrective justice accounts.87 What follows
illustrates
two
arguments. The conclusion is that the gap that exists between corrective justice
accounts of tort and the detail of the law itself is nowhere near as troubling as
Zipursky suggests. The argument is that some degree of distance between the two
should be expected and thus that this aspect of the fit issue is not problematic. In this
context, in which normative (usually moral or political) theories are invoked to cast
in these
83 Ibid.
84 Ibid.
“85 Ibid. at 705.
86 For a helpful discussion of American philosophical naturalism and its jurisprudential echoes, see
Brian Leiter, “Naturalism and Naturalized Jurisprudence” in Bix, supra note 46, 79.
87 The third, which highlights the variety of remedies in tort law, is not considered here. See
Zipursky, “Civil Recourse”, supra note 65 at 710-13. Nor is Zipursky’s intriguing discussion of the
true nature of both tort and private law. See “Philosophy of Private Law”, supra note 65.
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light upon the features of institutions and practices, these “problems” might instead
illuminate the nature of the task as opposed to failures in its execution. Some degree
of distance-or a certain lack of fit-between normative explanatory theory and the
detail of the law might be unavoidable. That, at least, is the argument offered here.
B. Three Problems
The first two problems affect Zipursky’s argument from substantive standing. The
strong version of this argument holds that corrective justice accounts of tort are
incompatible with the rules of substantive standing. One problem here is that this
incompatibility is bogus, primarily because Zipursky gives too little attention to the
related notions of wrongfulness and wrongdoing in both tort law and corrective
justice. It is argued that, insofar as corrective justice theories invoke notions of
wrongfulness and wrongdoing, they are clearly not incompatible with the standing
rules of tort law. If that is correct, then the focus must shift to the plausibility of what
corrective justice theories say about the standing rules. And what they say about those
rules might be internally incoherent or otherwise implausible. This presents a second
problem for Zipursky. For, if his implausibility charge against corrective justice
accounts of the standing rules in part insists that these accounts do not adequately fit
those rules, then he sets an unrealistically high threshold for corrective justice (or any
other) accounts of tort law. That is the second argument offered below. Its substance
is the same as the argument that underpins the third problem, though the latter besets
Zipursky’s argument from the liability to correct rather than the argument from
substantive standing.
1. Two Problems with Substantive Standing
Zipursky claims, not unimpeachably, that “the fundamental basis of corrective
justice theory … is that justice requires that a tortfeasor restore those whom his
wrongdoing has injured.””8 This captures much of what Coleman and Weinrib have to
replaced with
say about corrective
“wrongdoer”.89 Zipursky’s additional statement
that corrective justice theories
“claim[] that … tort law, in recognizing and enforcing legal duties of repair (for
wrongdoing], can be understood as an embodiment of”‘ corrective justice also
captures the tenor of much of what Coleman and Weinrib say. What, then, is the
problem?
justice, provided
that “tortfeasor”
is
According to corrective justice theory, the fact that a plaintiff has suffered harm
as the result of a defendant’s wrongdoing is what triggers an obligation on the
part of the tortfeasor, and should therefore trigger liability. As a wrongdoer, the
88 “Rights, Wrongs, and Recourse”, supra note 65 at 71 [emphasis added].
89 Coleman, Risks and Wrongs, supra note 6 at 318-24, 361-85; Coleman, The Practice of Principle,
supra note 6 at 55-59; Weinrib, The Idea of Private Law, supra note 6, c. 3.
90 Zipursky, “Rights, Wrongs, and Recourse”, supra note 65 at 71 [emphasis added].
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defendant should have to pay for the harm, because it is not fair that the
innocent plaintiff should be made to bear the burden of the loss. … [F]rom this
perspective
… the substantive standing cases appear most problematic.
Beginning with Palsgrafitself, we have a completely innocent plaintiff who has
suffered real harm as a result of something the defendant did, and we have a
jury finding that the defendant acted tortiously. Why not make the defendant
pay?91
As is explicit in this passage, Zipursky holds that while corrective justice accounts are
committed to the defendant paying in such cases, the law is not. But matters are not
quite as clear-cut as Zipursky thinks.
In Palsgraf, as we know, the answer to Zipursky’s question was that the
defendant should not be made to pay because his conduct was not a wrong to the
claimant. From the perspective of Coleman’s and Weinrib’s accounts of corrective
justice, is there anything actually wrong with this answer? One thought suggests not:
both accounts of corrective justice insist that a duty to correct arises only when there
is a wrong or wrongdoing and, in tort law, “wrong” certainly does not mean the kind
of free-floating wrong rejected by Cardozo in Palsgraf but rather wrong to a
particular claimant. Moreover, this notion of wrongfulness and wrongdoing must be
expanded further to adequately represent the law, since in order for some aspect of the
defendant’s conduct to be a wrong to a particular claimant it must interfere with some
or other of the claimant’s legally recognized interests.92 Indeed, the interference might
actually have to take a particular form to be legally recognized. But, since both
Coleman and Weinrib insist that a corrective justice duty arises only in the presence
of wrongfulness or wrongdoing, how are their accounts of corrective justice
incompatible with the standing rules, which themselves tell us what some “wrongs”
must look like in order also to be torts?
It is true that the accounts of wrongs and wrongdoing offered by Coleman and
Weinrib lack the detail of tort law’s catalogue of wrongs and wrongdoing.93
Unsurprisingly, the law’s catalogue is not identical to those provided by these two
theories of corrective justice, but non-identity is not incompatibility. Tort law’s
catalogue of wrongs and wrongdoing is found in the doctrinal requirements for each
and every tort–doctrinal requirements that, when examined carefully, disclose both
the interest or range of interests protected by the tort in question, the range of
interference prohibited, and the type(s) of conduct that can bring about such
interference. The law’s catalogue of wrongs and wrongdoing is thus constructed from
both the perspective of claimants and their protected interests, and defendants and
9’ Ibid. at 72 [emphasis added, last emphasis in original].
92 Some jurists draw a distinction between wrongs and wrongdoing (see Coleman, Risks and
Wrongs, supra note 6 at 330-31), but this is not always helpful. In the text I use “wrongdoing” and
“wrongfulness” interchangeably, though I have offered reasons elsewhere why the latter is preferable
and what its components are. See Lucy, Philosophy of Private Law, supra note 58 at 206-24.
93 Coleman, Risks and Wrongs, ibid. at 329-60; Weinrib, The Idea of Private Law, supra note 6 at
63-66.
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their conduct. And the substantive standing rules can plausibly be viewed as one
element of this catalogue. That Coleman and Weinrib say little about the detail of
these rules (they do not actually address them at all under this rubric) might be a
problem, but insofar as both insist that there must be wrongfulness/wrongdoing in
order to trigger a duty to correct, it is mistaken to maintain that their position is
actually incompatible with these rules. The most that can be said is that their accounts
of wrongs and wrongdoing are not the same as those contained in the law and this,
clearly, is a matter of plausibility rather than incompatibility.94 If it is a lack of identity
between Coleman’s and Weinrib’s accounts of wrongs and wrongdoing, on the one
hand, and the account of wrongs and wrongdoing latent in tort law, on the other, that
makes corrective justice theories implausible, then the criteria of plausibility must be
made explicit.
Two observations suggest that the real dispute between Zipursky, on the one
hand, and Coleman and Weinrib, on the other, is (despite initial appearances) about
the plausibility of the account the latter give of substantive standing. First, both
Coleman and Weinrib make some effort to unpack the components of their theories,
particularly notions like fault, wrong, and wrongdoing, so as to show that corrective
justice makes sense of tort law. Their arguments to this end could well be extended to
include the standing rules. The second observation is that Zipursky spends some time
attempting to undermine these efforts.95 Weinrib offers an account of Palsgraf that is
in substance much the same as Zipursky’s;96 what Zipursky finds objectionable about
it is that it apparently commits Weinrib to a Hlohfeldian correlative between a
claimant’s right to repair and a defendant’s duty to correct. This, says Zipursky, mixes
up primary rights and duties with secondary remedial rights and duties.” While this
particular point might be well made, it is not the important issue here. The important
issue is this: Weinrib’s account of corrective justice does indeed labour to elucidate
the significance of the relationship between claimant and defendant. His theory is
thus concerned with just the issue that informs the rules of substantive standing. For
Weinrib, as a matter of corrective justice theory, a wrongdoer only owes a duty to
correct to one she has wronged, in the specific sense of having infringed a specific
protected interest. And, as a matter of tort law, this is the import of the standing rules.
Coleman’s account of corrective justice also might have the resources to explain
the standing rules. Coleman holds that for conduct to be a tortious and a corrective
justice wrong, it must be faulty and the harm it creates must “fall[] within the scope of
the risks” that make it faulty.98 Zipursky’s objection to this is twofold. First, the
argument turns “the notion of ‘fault’ into something that is purely a construction of
the ‘nexus-requirement’ that seems to exist in our actual tort law” and thus Coleman
94 See Zipursky, “Civil Recourse”, supra note 65 at 716-18.
95 See e.g. “Rights, Wrongs, and Recourse”, supra note 65 at 70-79.
96 Weinrib, The Idea of Private Law, supra note 6 at 159-64.
97 “Rights, Wrongs, and Recourse”, supra note 65 at 74-75.
98 Risks and Wrongs, supra note 6 at 346.
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fails to show “why this nexus-requirement is … a necessary constituent of when a loss
is a defendant’s ‘fault.'”‘” Second, he observes that, as a matter of tort law doctrine,
defendants are sometimes liable for losses beyond the scope of the risk that makes the
conduct faulty.’
We have, then, a series of apparently minor disagreements between Zipursky, on
the one hand, and Coleman and Weinrib, on the other, about how the standing rules
are best explained as a matter of theory. Zipursky undoubtedly aims to show that the
accounts of the standing rules provided by Coleman and Weinrib are either internally
implausible or otherwise problematic. But it is also clear that he does not succeed. Or,
at least, he is far from showing that either Coleman’s or Weinrib’s account of the
standing rules is fatally flawed. Think, for example, of Zipursky’s response to
Weinrib. Surely it is just a minor argumentative misstep on Weinrib’s part that has led
him to mix up primary and secondary rights. It seems fairly easy to carry out the
necessary amendments to Weinrib’s argument suggested by Zipursky’s observations
without in any way seriously undermining the overarching account of corrective
justice. Of course, if Weinrib’s intention is that his account of corrective justice must
offer an accurate description of each and every feature of tort law, then this
suggestion is unacceptable. But why think that Weinrib’s theory is intended to be, or
should be, descriptive in this very stringent sense? Zipursky’s argument against
Coleman embodies an equally dubious assumption. Zipursky thinks that Coleman, in
arguing that corrective justice makes tort law normatively intelligible, is duty bound
to demonstrate the (surely normative) necessity of features of the law like the “nexus-
requirement”. Why? Why must a theory explain-in the sense of showing the
normative necessity of-each and every feature of its object? This seems a
particularly demanding standard of theoretical success.
It is clear that Zipursky must have a view of what an adequate account of the
standing rules look like. It is also clear that he thinks the accounts offered by
Coleman and Weinrib inadequate. It is therefore important to articulate the criteria of
adequacy in play here. That task is, however, difficult because Zipursky himself gives
no detailed account of the standing rules. He is often content to show only that they
pose a problem for corrective justice as “a positive [descriptive] theory of tort law.””
Yet because he seems convinced that the standing rules must be explained in some
detail by corrective justice theories, we have some implicit guidance on this matter.
Explaining the standing rules in some detail seems to mean, according to Zipursky,
showing their normative necessity, explaining their form, and, perhaps, explaining
their substantive content. It is thus not enough, on Zipursky’s view, for corrective
justice theories simply to be compatible (or not incompatible) with these rules. The
obvious question is, of course, this: why must theories of corrective justice, which are
“9 Zipursky, “Civil Recourse”, supra note 65 at 718.
“1 Ibid.
101 “Rights, Wrongs, and Recourse”, supra note 65 at 71.
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primarily intended to make tort law normatively intelligible, fit or accommodate the
detail, form, and substance of this specific segment of legal doctrine?
If Coleman and Weinrib
At this point recourse might be had to the methodological implications of
indeed pragmatic
pragmatic conceptualism.
conceptualists, as Zipursky thinks they must be, then their theories should give an
account of the concepts embedded in the law. The doctrine of substantive standing
clearly is one such concept (or body of concepts) and it also licenses and thus
explains a range of “ordinary inferences [made] by legal participants.”‘(cid:127)1 2 If Coleman
and Weinrib cannot account for these rules, or if they offer implausible accounts of
them, then their theories fail to satisfy their own methodological commitment. There
is, however, room to question some of the alleged implications of this commitment.
are
law. But simply stating
One such implication seems to be this: pragmatic conceptualism insists that all
accounts of an institution must fit each and every one of its features in form, detail,
and substance. So, a corrective justice account of tort law must fit, in the sense of
providing an account of their normative basis or intelligibility, all the doctrines and
this supposed implication shows its
features of tort
implausibility: as a criterion of theoretical adequacy, it is much too demanding. This
in a practice or institution
seems particularly obvious when some participants
themselves regard aspects of it as beyond the pale of normative intelligibility. This is
often true of some or other aspect of legal doctrine or process and all participants-
lawyers) and commentators (academic and
practitioners (including judges and
other)-give vent to such views at some point. While historians and sociologists
might offer interesting accounts of how and why currently objectionable doctrines
became rooted in the law, it does not follow that it is incumbent upon jurists to make
such doctrines normatively intelligible. Participants can and do regard such doctrines
as mistakes, inconsistent with the rest of the law and its constitutive values. Why, by
contrast, are jurists bound to accommodate such doctrines?
Moreover, even if the substantive standing rules are regarded by participants as
morally and politically unimpeachable, this still does not dictate that an account of
the normative basis of tort law must accommodate them. The question of which
features of an institution a theory of the institution must accommodate is surely open,
except in one sense: a theory must accommodate enough of an institution and its
practices to count as being about that institution and its practices. But this is so
minimal a requirement that all (or almost all) of the theoretical accounts of tort law
currently available, including those offered by Coleman, Weinrib, and proponents of
EAL, are likely to satisfy it. How, then, are we to choose between these accounts?
One way is on the basis of which theory accommodates most of the law’s features.
The snag here is to articulate why a theory that accommodates more is better. An
alternative basis for this choice is to adopt the theory that accommodates more of
what the participants in the institution regard as significant about it but, if participants
102 Zipursky, “Civil Recourse”, supra note 65 at 705.
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do not speak with one voice on this issue, the problems highlighted in part II simply
recur. Yet another possibility is to choose the theory that best captures those features
of the institution regarded as morally significant by some participants.”3 But, in the
absence of unanimity among participants, the difficulties encountered in part II arise
again.
For present purposes, the crucial point is not how this choice should be made.
Rather, the important issue is what all three responses just canvassed have in
common. What they share is that each accepts the possibility of a lack of fit between
normative account, on the one hand, and some features of the institution to be
explained, on the other. If, by contrast, Zipursky’s pragmatic conceptualism insists on
an exact fit between normative account and each and every feature of the institution
to be explained, then it is a truly exceptional and demanding approach.,”0 If, as a
general matter, accounts of institutions, practices, or segments of conduct must fit
every aspect of such institutions, practices, and conduct-if no feature can fall
beyond the reach of the proffered explanation-then a satisfactory account or theory
seems impossible.
Zipursky undoubtedly thinks corrective justice theories must accommodate the
substantive standing rules. It does not necessarily follow from this that he also thinks
corrective justice theories (or any other kind of theory, for that matter) must fit all the
fine doctrinal details of tort law. He could hold, for instance, that some doctrinal
details-the rules of substantive standing perhaps-are more important, and thus
deserving of more theoretical attention, than others. But whatever option Zipursky
favours faces difficulties. If the latter, then a compelling argument must be provided
to show why some doctrinal details are more important than others. So far, we have
been unable to find such an argument. If the former, then he needs an argument to
rebut that which follows. It consists of three general considerations that suggest it is a
mistake to expect any particular moral or political theory-whether or not corrective
justice is one of its constituents-to explain or make normatively intelligible the fine
details of some or many legal doctrines.”5 Since they serve to undermine Zipursky’s
argument from the liability to correct as well as the argument emerging from
103 For a superb treatment of how a choice akin to this becomes salient at the level of general legal
theory, see John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980) at 3-22.
104 There is, for example, no such demanding requirement of fit in the most ambitious account of
law and adjudication we currently have. See Ronald Dworkin, Taking Rights Seriously (London:
Duckworth Press, 1978) at 118-23; Ronald Dworkin, Law’s Empire, supra note 23 at 227-60.
105 Henceforth I speak only of “moral theories” but also include under that rubric political morality.
Coleman and Weinrib have different views as to corrective justice’s status within our scheme of moral
and political values. For examples, see Lucy, Philosophy of Private Law, supra note 58 at 259, n. 16.
The argument these three considerations generate is neither prima facie incompatible with pragmatic
conceptualism nor does it obviously collapse into an objectionable functionalism. See Zipursky,
“Pragmatic Conceptualism”, supra note 14 at 463-67, 474-78. It cannot therefore be briskly rejected
by Zipursky.
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substantive standing, these considerations are elucidated in the following subsection.
Taken together, the three considerations amount to an argument from “bluntness”.
2. Bluntness and the Liability to Correct
Zipursky’s argument from the liability to correct highlights a tension. It is
between tort law and what for Coleman and Weinrib is a fundamental principle of
corrective justice. The principle holds that one who wrongfully injures another has a
duty to correct the harm done to the victim, while tort law contains no such principle.
The most that can be said of the law is that it subjects defendants to a liability to
correct the tortious wrongs they do, that liability only becoming a duty once a court
has ruled in the claimant’s favour.’ 6 What is the force of this point? One thing to note
is that there is no secure ground from which to challenge the principle of corrective
justice that Zipursky says is in play here. While a number of textual quibbles might be
raised, there is little genuine doubt that Coleman and Weinrib are committed to
something like that principle, either directly because they espouse it or something like
it explicitly, or indirectly, by virtue of the other things they say. Since Coleman and
Weinrib are committed to this principle, then surely their theories are undermined by
Zipursky’s argument?
Not necessarily. Much depends on the scale of this “mismatch between the theory
and the law,”‘7 on whether or not principles of corrective justice must be an exact
characterization of the law, and on what it means to claim that such principles are
“embodied”’00 or “exemplified”‘9 -or “internal to”,1’0 “immanent in”,”‘ “inherent
in”,”(cid:127) 2 or “make sense of ” 3-the
law. Both Coleman and Weinrib make one or more
of these latter claims about corrective justice and its components, yet neither regards
corrective justice as a descriptively accurate statement of some or all segments of tort
law doctrine. Indeed, their actual usage of these terms suggests that they see the
relation between principles of corrective justice and tort law as altogether looser than
that between an object and a descriptively accurate proposition about that object. So,
when Coleman says that “the central concepts of tort law … hang together in a set of
inferential relations that reflect a principle of corrective justice,”‘”‘ it seems plainly
uncharitable to interpret this as meaning that the principle in question describes legal
doctrine. Similarly, Weinrib’s claim that corrective justice and Kantian right are
components of an internal account of tort law certainly does not commit him to the
106 See Zipursky, “Civil Recourse”, supra note 65 at 718-30.
“’07 Ibid. at 724.
108 Coleman, The Practice of Principle, supra note 6 at 8.
109 Ibid.
“10 Weinrib, The Idea of Private Law, supra note 6 at 11.
“…
112 Coleman, Risks and Wrongs, supra note 6 at 7.
113 Coleman, The Practice of Principle, supra note 6 at 8.
“.4 Ibid. at 9-10 [emphasis added].
Ibid. at 23.
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view that either component is a description of some segment of legal doctrine; these
components, remember, are “implicit in the functioning of private law.””‘5 They
confer normative intelligibility upon doctrine and its structure; in doing so, it seems
unlikely that they must also describe the details of doctrine.
If it is wrong-at least with regard to Coleman’s and Weinrib’s theories-to
expect principles of corrective justice to be exact replicas of tort law doctrines, then
the fact that those principles do not accurately characterize the liability to correct is
not particularly troubling. Moreover, any residual worry about this mismatch is
dissipated by this thought: it is surely possible to have a duty in morality that is
embodied as a liability in law and a liability in morality or politics (to pay taxes,
perhaps) that is a duty in law. Both possibilities are likely if the law sometimes serves
to make some moral duties both more precise and more tractable.” 6 Denying the
possibility of a disjunction here comes close to assuming an exact overlap between
both the modal form and substantive content of a specific critical or positive morality
and the law. This assumption betrays a crass legal moralism, whose hallmark is that
the law should incorporate exactly the form and content of a specific critical or
positive morality.”‘ Such a legal moralism clearly cannot be accepted without
argument. Furthermore, the first of the three considerations that make up the
argument from bluntness suggests that, as an empirical matter, such a legal moralism
is unlikely to take hold in common law systems.
The consideration is this: common law systems are subject to a range of entropic
forces that weigh against them embodying exactly a specific critical morality. In large
part the tort law of the common law world is the work of many judicial minds, rarely
acting in concert and deciding many, many cases over a couple of centuries or so.
That the outcomes of this process of plural (but rarely group) deliberation will neatly
cohere with the content of a specific critical morality seems unlikely, if only because
of the numbers of people and the time scale involved.” 8 Further, while the blueprint
provided by a critical morality might quite easily be embodied and internalized in one
person’s life and conduct, it is surely very unlikely to be easily translated into the
decisions of many judges over decades or centuries. In addition, the discursive
common law system of adjudication, in which each judge sitting in an appellate case
is entitled to give their reasons for deciding a case one way rather than another, might
well undermine a rigid legal moralism. This is principally because even in a
115 Weinrib, The Idea of Private Law, supra note 6 at 20 [emphasis added].
116 For a helpful exploration of this theme, see Tony Honor6, “The Dependence of Morality On
Law” (1993) 13 Oxford J. Legal Stud. 1.
“117 The distinction between critical and positive moralities is drawn, albeit somewhat allusively, by
H.L.A. Hart in Law, Liberty and Morality (Stanford: Stanford University Press, 1977) at 20-24. For
two examples of not particularly crass legal moralism, see Stephen, supra note 15; Devlin, supra note
15.
“’18 On the public and (limitedly) collective aspects of common law reasoning and adjudication, see
Gerald J. Posterna, “Philosophy of the Common Law” in Coleman & Shapiro, supra note 43, 588 at
594-95.
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minimally pluralistic judicial context, such a position will undoubtedly be subject to
the public scrutiny of other judges and, as a result, will likely be diluted.”1 9 Finally,
the pressure to decide cases-judges cannot postpone decision indefinitely-and the
imperative to ensure that the legal system functions efficiently and in accord with
common sense, mitigate against the law always and ever embodying the requirements
of a specific critical morality. This kind of “systemic” consideration might well be
either incompatible with those requirements or free from their influence, yet they are
nevertheless salient for judges when deciding cases,’20 A gap can thus open between
the requirements of law and those of a particular critical morality.
The fact that there is often a large degree of overlap between the positive morality
of a society and its law does not provide succour for the legal moralist. The overlap
that exists usually obtains only at the most general level. As a matter of positive
morality, in our society it is most likely true that we think care should be taken against
accidentally injuring others and that we should do as we undertake or promise. Both
notions are also reflected in the law of our society. Yet it is far from clear that either
notion can actually guide the application of the law in any meaningful sense. Why
this might be so is explained by the second and third considerations that make up the
argument from bluntness.
The second holds that particular legal doctrines and rules are blunt insofar as they
“do not precisely embody any moral principle. Blunt laws are obliquely related to the
values that they serve, and they may be so related to several distinct and perhaps
legal rules and doctrines appear perfectly
incompatible values.”” That some
compatible with different moral principles that might be generated by incompatible
moral theories seems fairly obvious. The rule in the English contract case of Williams
v. Roffey Bros.,”22 for example, might just as well be supported by either deontological
or utilitarian principles of either positive or critical morality. So, too, could many,
many other rules of private law. Of course, it might be argued that the moral
principles invoked to support the rule in Williams v. RoffJy are not substantively
different but are meta-ethically different. Substantively similar moral principles
might, that is, be generated by moral theories that are incompatible in terms of what
they regard as morally important, or different in terms of the account they offer of the
nature, basis, and range of moral knowledge. If incompatible meta-ethical theories
” 9 The common system was (and perhaps still is) one in which judicial pluralism and diversity was
rare. Interesting, historically informed thoughts on this issue are found in A.W.B. Simpson, “The
Common Law and Legal Theory” in A.WB. Simpson, ed., Oxford Essays in Jurisprudence (Second
Series) (Oxford: Clarendon Press, 1973) 77.
120 Such considerations are most
to form part of what Neil MacCormick calls
“consequentialist” arguments in adjudication (Legal Reasoning and Legal Theory (Oxford: Clarendon
Press 1978) at 129, c. 6).
likely
“121 N.E. Simmonds, “Bluntness and Bricolage”
in Hyman Gross & Ross Harrison, eds.,
Jurisprudence: Cambridge Essays (Oxford: Clarendon Press, 1992) 1 at 12.
122 (1989),
[1991] 1 Q.B. 1 (C.A.) [Williams v. Roffey] (merely doing what one is already
contractually bound to do can be good consideration for a subsequent promise).
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can converge in terms of their substance, then they could generate
identical
judgments on the rights and wrongs of legal decisions like Williams v. Roffey. Yet this
does not undermine the point about the bluntness of some legal rules and doctrines;
rather, it reinforces it. For, if different meta-ethical theories converge in substantive
judgments, and those judgments are embodied in the law, how can the legal doctrines
and decisions that embody them favour one meta-ethical theory over another? It is,
instead, surely reasonable to expect such legal doctrines and decisions to be blunt
between such competing meta-ethical theories.
It could be objected that the case in favour of legal doctrinal bluntness is made
too easy by the assumption that legal doctrines should favour one meta-ethical theory
over another. Deniers of bluntness might argue that they have no such expectation of
legal doctrine. What they expect, rather, is that particular legal doctrines and rules
will be supported by or compatible with only one substantive moral principle. If this
is indeed their expectation, then the best way to show that it is reasonable is by
producing supporting examples. In Zipursky’s case, for instance, this could be done
by showing that one and only one substantive moral principle supports the standing
rule in Palsgraf and cognate rules throughout tort law. He does not attempt this task
and an indication of its difficulty can be gleaned by considering almost any tort case.
What single substantive moral principle, for example, uniquely supports the decision
in Donoghue v. Stevenson?’23 Which moral principle, out of those available, is unique
in its ability to support the ruling in Bolton v. Stone?”‘ It is prima facie unlikely that
such principles will be found. Rather, there is often either a glut of substantively
(somewhat) different moral principles capable of supporting a single decision or
doctrine, or no principle at all.
The possibility that some legal rules and doctrines can be completely without
moral support, in the sense that neither a specific meta-ethical theory nor a particular
substantive moral principle confers salience upon them, is the core of the third
consideration. It is that moralities might themselves be blunt in the sense that they
lack the wherewithal to either support or provide answers to specific legal doctrinal
questions. This should not be a surprise. In broad terms, positive moralities are a
matter of rules of thumb
that engage only with the generalities of morally
commendable and morally objectionable conduct. When faced with dilemmas and
other instances of crisis, as well as with matters of detail, positive morality is least
likely to guide us. Critical moralities can and sometimes are intended to fill this void,
but building a complete theory of moral right and wrong on the basis of exceptional
cases is itself problematic.’25 Whatever we might think about the capacity of both
positive morality and particular critical moralities to generate answers to specific
questions, one thing is clear: neither kind of morality appears well equipped to
“123 [1932] A.C. 562 (H.L.) (duty of care imposed on manufacturer to ultimate consumer of product).
124 [ 1951 ] A.C. 850 (H.L.) (running the risk of foreseeable damage is not itself enough to establish
125 This is so because they are unlikely to be a good guide to the generality of our moral beliefs.
liability in negligence).
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support or answer the specific, detailed doctrinal questions that arise in the appellate
courts. Think again of Williams v. Roffey. Is it sensible to expect an answer from
either positive or a critical morality to the question of whether doing what one is
already contractually bound to do is good consideration for a subsequent promise? Or
reasonable to think that morality, of whatever kind, generates a single answer to the
question raised in cases like South Australian Asset Management v. York Montague
Ltd., about the range of a valuator’s duty?’26
The answer to these questions is most likely a resounding “no”, and not only
because some legal rules are “merely” matters of determinatio or convention.”2 ‘ It
therefore seems that the condition Zipursky apparently sets for corrective justice
theories to succeed-that they fit the form, substance, and detail of legal doctrine-is
just too demanding. However, note that the argument from bluntness does not show
that theories seeking to make tort law normatively intelligible can never make sense
of the liability to correct or the standing rules; nor has it shown that corrective justice
theories are unable to make sense of these two features. The argument has not even
shown that corrective justice and other theories of tort law are not required to give an
account of these particular features of the law. The argument has, however, cast doubt
on the wisdom of expecting such theories to give an account of most or all of the
doctrinal details that constitute any area of law. If it is persuasive, then this argument
shows why it is a mistake to expect Coleman’s and Weinrib’s theories of corrective
justice to accommodate, or to make normative sense of, features of tort law like the
rules of substantive standing and the liability to correct. If that expectation is
mistaken, then so, too, is criticism of these theories for failing to accommodate such
features.
The arguments of this section have diagnosed a general problem in Zipursky’s
discussion of Coleman and Weinrib: he requires too close a fit between theory and
object. Zipursky’s apparent insistence that theories of corrective justice fit the form,
detail, and substance of tort doctrine implies that the relation between theoretical
accounts and their objects must be very close, more akin to that between human
bodies and their skin than to that between human bodies and their clothing. It is time
to address the question of the relation between theories (or accounts, explanations, or
understandings) and their objects in more general terms. This is done in the following
part, which is a brief effort to draw a general lesson from the arguments of parts II
and III.
126 [1996] 3 All E.R. 365 (H.L.).
127 For a discussion of determinatio, see Finnis, supra note 103 at 284-89. Finnis suggests that while
there is no “happy English equivalent” of determinatio, Hans Kelsen’s suggestion of”concretization”,
or possibly “implementation”, would be a rough equivalent (ibid. at 284, n. 16).
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IV. Made-to-Measure Philosophy
is
trying
A person who
to
distraction from fore-meanings that are not borne out by the
things themselves.128
to understand
is exposed
It is a commonplace among most jurists that theoretical accounts of any area of
the law, including tort, must fit some of the law’s principal structural and doctrinal
features. It is also often assumed that such accounts must, where possible, make those
features both intelligible and normatively respectable. The import of the arguments in
parts II and III is clear. First, they show that it is often unclear why some or other
structural or doctrinal feature should be regarded as theoretically important and thus
worthy of explanation. Second, they show that some such features may be beyond the
reach of some normative explanations.
The requirement that nonskeptical accounts of tort law–or any other complex
institution or set of practices-must fit the institution and attempt to make it
intelligible is always likely to be problematic.'” 9 One obvious reason for this is that
some accounts might fit some features of the institution while other features are
accommodated by other accounts. Different accounts might also make different sense
(normative or other) of one and the same feature or set of features. That being so, how
are we to judge which of these competing accounts better satisfies the requirements of
fit and intelligibility? Insofar as the answer to this question is a matter of judgment,
the possibility arises that there might be more than one reasonable reply. Hence, while
undoubtedly demanding, the fit and intelligibility requirements may not always
generate clear answers to questions about the relative success of particular theories of
tort law or any other institution or set of practices. Furthermore, the more complex the
institution and set of practices in question, the greater the space for differences to
arise along the dimensions of both fit and intelligibility. But it should not be assumed,
in light of the variability between theories that this possibility permits, that fit and
intelligibility requirements do no genuine work in discriminating between competing
theories. These two requirements demand that those who offer an account of an
institution or set of practices must take that or them seriously in their particularity and
detail. The crucial issue is how much of this particularity and detail is significant, and
thus how much must be accommodated by an acceptable theory.
It is easy to caricature this demand with an attempted reductio. It could be said
that taking tort law seriously in its particularity and detail is what our textbooks do
and they, obviously, are not theoretical or philosophical or jurisprudential accounts of
tort law. While this is to some extent true-if taken in conjunction with the caveat
that some
textbooks are assuredly philosophically or jurisprudentially
legal
128 Hans-Georg Gadamer, Truth and Method (New York: Seabury Press, 1975) at 236.
129 Some of the most interesting recent skeptical accounts of tort and private law originated with
American critical legal studies. Their skepticism derives from a set of claims that law is “ideological”,
“political” or “contradictory”. A classic of the genre is Duncan Kennedy, “Form and Substance in
Private Law Adjudication” (1976) 89 Harv. L. Rev. 1685.
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it is obvious
that
significant-the reductio need not be accepted. For, while
theoretical accounts of tort should not simply replicate our textbooks, neither should
they disregard significant features of the law. Without implying that the process is
wilful, it is clear that some accounts of tort law, among which we can include those
offered by Coleman, Weinrib, and proponents of EAL, do indeed overlook some
features of the institution that some participants regard as significant. This weakness
is often conjoined with an inability to justify the decision to regard some features of
to the views of
the institution as theoretically significant, either by reference
participants or on some other ground. These accounts, then, miss significant features
of the institution (Weinrib’s dismissal of strict liability and Coleman’s account of
product liability) and fail to justify why other features are regarded as significant
(Coleman’s struggle with tort law’s “core”, Weinrib’s dubious privileging of an
“internal” understanding of tort). Why?
to the fore. One such precommitment
One possible answer is this: these accounts of tort law approach their object with
is
some philosophical precommitments
attitudinal. It is probably hardly ever explicitly articulated and describing it is thus a
hazardous business. But it seems likely that an assumption informing much of the
philosophical and jurisprudential literature is that tort law in particular and private
law in general are in need of philosophical attention. The ailments of these areas of
law-the principal one being the entropic forces that shape them–can be cured by a
dose of philosophical rigour. That precommitment is often joined by some or other
substantive commitment like, for example, the belief that corrective justice (or some
other normative notion) is the key to understanding tort or private law. Only in light
of some such notion will the underlying coherence of the law be disclosed; only some
such notion as this keeps the forces of entropy at bay. One baleful consequence of
substantive precommitments like these is that the object of the theoretical account can
unwittingly be shaped in the image of the precommitment, often with results that
Procrustes would be proud of.
like
taking
This might be avoided by according the institution and its constitutive practices a
it seriously and
proper respect. That term, along with cognates
appreciating its particularity, can sound alarmingly vague and in one sense it is: it is
not possible, in advance, to specify in detail what it means to give an institution or
practice or segment of social conduct “proper respect”. One thing that clearly need
not be included in this idea is moral or political respect. That is, one can give an
institution or practice or segment of conduct proper respect without accepting that it
is morally or politically commendable. Beyond this, what it is to give proper respect
to an institution, practice, or aspect of conduct is only genuinely disclosed by trying
to understand and account for the institution, practice, or conduct in question. The
matter could be put thus: taking the institution, practice, or conduct seriously, or in its
own terms, is to approach it with as few philosophical or theoretical precommitments
as possible and to respect its possible particularity and detail. The claim that this
theoretical
ought
precommitments make it possible for theorists or philosophers to perceive the
institution, practice, or conduct in question, nor that some such precommitments
generate the theorist’s or philosopher’s interest in the first instance.
to be our approach denies neither
loosely
that
some
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In order for theorists and philosophers to be able to even perceive the institution,
practice, or conduct that is the object of interest they must, of course, share the
language of those whose conduct in part constitutes that aspect of social reality. This
point is most obvious when undertaking anthropological or historical study, since
groups distant from us in time, beliefs, complexity, and social structure are most
difficult to “know”. When it is said that knowledge of such groups cannot be obtained
without learning their language, that is often literally true. But even groups with
which we share a language are not immediately transparent to us simply by virtue of
that fact: think, for example, of English- or French-speaking societies and their legal
systems. Significant knowledge of the latter is not obtained by virtue of learning
English or French, as any first-year law student will testify. Sharing a language
simply makes the move towards “thinking like a lawyer” easier. Yet without an
appreciation of the specific meaning of the concepts this group employs, no adequate
understanding-an understanding participants themselves would find intelligible–of
their conduct, practices, and institutions is possible. “Thinking like a lawyer,” just
like “thinking like a Zande tribesperson,” is first and foremost a matter of mastering
the language and hence the concepts of that group.
That
language,
is an
language,
like any natural
interlinked system of
discriminations, assumptions, and preconceptions about the social and natural worlds.
It is also in part a language of self-description and evaluation, containing concepts
and values specifying what a good lawyer or tribesperson is, as well as concepts
illuminating what is in general good and bad. It is thus in no sense a value-free or
perfectly neutral method of representing the world beyond language, lacking in
theoretical constructs. It is, rather, in some sense a means of both organizing and
having knowledge of the world.’3’ On this broadly hermeneutic view, it makes no
sense to think of language as a nonpurposive, nontheoretical means of appropriating
the word; it is equally senseless to attempt to understand some social group’s
institutions, practices, or conduct without learning their language.”‘ But in learning
the language of those whose conduct, institutions, or practices are the object of
theoretical reflection, one must also take up the roughly theoretical commitments
latent in that group’s language. These precommitments are initially unavoidable,
though they can at some point be interrogated and perhaps set aside.
130 A picture supposedly in opposition to this (usually associated with unspecified unreflective
empiricists) is that a language is possible that reflects “reality” immediately, with the use of theoretical
constructs and evaluative terms. Both the latter and the former are sometimes taken to exceed the
limits of empirical perception and thus regarded as somewhat dubious. Whether or not any
philosopher or social scientist ever held such an empiricist view is a moot point, but it sometimes
associated with John Locke. See Richard Rorty, Philosophy and the Mirror of Nature (Princeton:
Princeton University Press, 1979) at 129-312.
131 For the classic recent statement of this view, see Gadamer, supra note 128. For his view of the
importance and awkwardness of precommitments (which he sometimes calls “fore-meanings”) to
understanding and interpretation, see ibid. at 235-74.
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Similarly, the theorist or philosopher must have some roughly theoretical
precommitments in order for an area of study to become salient.’32 These determine
the nature of the research questions on the agenda of a particular disciplinary group:
thus sociologists’ questions may well differ from those of the historian, economist,
philosopher, or jurist, but all are conditioned by some assumptions about why
particular questions are worth asking. No contemporary social or political scientist
would, for example, think of developing a theory of holes in response to the question
“Why are there holes and does their incidence vary between political systems?”’33
That question is not on the agenda of political or social science because neither those
disciplines nor the wider culture in which they exist regard it as in any way
interesting or worthwhile. Since all research questions are formed within a particular
disciplinary and wider social context, specific questions only become salient for
theorists if they are in some sense questions of the epoch, their salience in part
determined by or a reaction to ideas, assumptions, and theories influential in the
broader culture. That research questions are conditioned in this way provides one
to a
reason why no theorist will develop a political or social (as opposed
cosmological) theory of holes. That this conditioning process exists does not imply
that the process by which research questions are “determined” cannot itself be subject
to interesting sociological, historical, economic, or philosophical study.
In these two instances it seems that some broadly theoretical precommitments are
unavoidable. It might also seem that the claim that philosophers and jurists ought to
approach the object of their study without precommitments is therefore dubious. But
the theoretical precommitments that proponents of this latter claim have in mind need
not be the same as those just elucidated. While those precommitments are indeed
indispensable, other more substantive precommitments might not be. And it might be
such substantive precommitments that undermine some theoretical accounts of tort
law, in the sense of impeding appreciation of either some aspects of the institution or
some aspects of the theory or method invoked. A particular conception of corrective
or distributive justice, liability-responsibility, or efficiency surely counts as a
substantive theoretical precommitment in the sense that it is neither essential to
apprehend tort law nor vital in order to make a theoretical interest in that object
salient or possible. Notions such as these should not, then, be to the fore at the
beginning of an examination of tort law but may well be the outcome of such an
examination.
132 See Max Weber, “Value-judgements in Social Science” in Walter Gi Runciman, ed., Weber.
Selections in Translation, trans. by Eric Matthews (Cambridge: Cambridge University Press, 1978)
69; Max Weber, “The Logic of Historical Explanation” in Runciman, ibid., 111. See also Max Weber,
“‘Objectivity’ in Social Science and Social Policy” in Edward A. Shils & Henry A. Finch, eds., The
Methodology of the Social Sciences (Glencoe, Ill.: Free Press, 1949) 50.
133 A closely related question was posed, not completely tongue-in-cheek, by Alasdair Maclntyre in
Against the Self-Images of the Age: Essays on Ideology and Philosophy (Notre Dame: University of
Notre Dame Press, 1978) at 260.
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like an
function rather
If conceptions of responsibility, efficiency, or corrective or distributive justice are
indeed to the fore in many philosophical and jurisprudential accounts of tort law, it is
no surprise that such accounts miss significant features of the institution and generate
methodological puzzles. Such precommitments
ideal
conception of the human body in tailoring clothes: the clothes produced will
undoubtedly fit everyone in some respects but fit almost no one very well. If the ideal
person of my stature has arms of a certain length, then clothes designed on that basis
may fit me but they may not: it depends how closely I approximate the ideal. This is a
general problem with off-the-peg tailoring. By contrast, made-to-measure or bespoke
clothing is designed to fit me, not some ideal conception of a person of my age or
height. Such clothing is made on the basis of a template-a series of measurements-
of me, in all my particularity. I’m measured first, then the clothing is made to fit.
Theoretical accounts of tort could be constructed in a similar way, but only if the
institution is in the first instance treated in such a way as to appreciate all its
particularities and significant features. Once that is done, it might well be “accounted
for” in philosophical-cum-theoretical
terms, the theory or account or explanation
being designed to fit that particular institution and its principal contours.
Part of the moral that might be gleaned from the arguments in part II is therefore
this: jurisprudential accounts, explanations, or understandings of tort law should be
parsimonious in their theoretical precommitments and this parsimony must be both a
matter of word and deed. Only if such parsimony is accepted is there a chance of an
appropriate degree of fit (or, alternatively, distance) between theory and theoretical
object. But what of the arguments of part III? Surely whatever lesson the arguments
there might yield points in exactly the opposite direction, since the claim there was
that it might be a mistake to expect a close fit between (normative) theory and object.
Is there a contradiction here? Only if the options that face us are these: either a theory
fits the object it seeks to explain or understand in all its details or it need not fit the
details of its object at all. Simply to state this either-or is to see its implausibility. The
claim that a theory must fit its theoretical object is not incompatible with the claim
that a theory need not fit every detail of that object. Furthermore, there is considerable
doubt as to the utility of a theory that accommodates every detail of its object. This
doubt is independent of the argument from bluntness offered in part III.
The core of this doubt is that the theory envisaged runs the risk of being literally
pointless. This is because a theory that accommodates every detail of its object is
simply a redescription of that object and, without more, such a redescription prima
facie lacks epistemological value. A literal redescription tells neither participants in,
nor theorists familiar with, the conduct, institution, or practices in question anything
they do not already know. Of course, it might be claimed of some theoretical
redescriptions that they shed new light on some aspect of their objects yet, as the
capacity of a theory to illuminate aspects of its object increases, so the likelihood of it
fitting all aspects of that object decreases. This is because the effort to illuminate
some or other aspect of the object in depth, so as to yield new insights or knowledge,
is usually incompatible with a “complete” account of each and every aspect of the
object. Furthermore, the utility of a theoretical redescription of an object that captures
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each and every detail of the object (where the object is a complex segment of the
social world) becomes even more questionable when the object is itself already
theorized. And there is clearly a sense in which law in general, and private law in
particular, is theorized. Both civil and common law systems are complex institutions
that include a rich and formalized tradition of commentary and reflection on the law.
For civil lawyers this is the fulcrum of “legal science”, while for common lawyers it
is simply doctrinal scholarship. This work is principally a matter of pruning, tidying,
and organizing existing doctrinal categories in light of legal developments, but it is
also sometimes a matter of creating new, or reorganizing existing, categories.
Moreover, in its most interesting forms this scholarship also seeks an understanding
of existing legal categories and developments in light of the purposes and values that
theoretically unambitious nor
underpin
philosophically uninteresting, though it sometimes purports to be both (and some
instances of this scholarship do indeed live down to this billing). We may wonder
theoretical
why
redescription, which is not to say that more ambitious theoretical work cannot shed
light upon it. Rather, it is to imply that such ambitious work will be more than a literal
redescription of the institution and its constitutive practices.
institution needs additional
those categories.
is
thus neither
It
such a
theoretically
saturated
But if ambitious and interesting theoretical work is unlikely ever to be just a
redescription, why worry about corrective justice theories of tort law failing to
accommodate aspects of the institution? Since such theories do not aim at a simple
redescription, it is surely inappropriate to criticize them for a lack of fit. There is,
however, no inconsistency here, provided the fit requirement is understood as a
demand that a theory of an object must fit enough of that object to be a theory of it.
How else, besides employing such a requirement of fit, can we be sure that a theory
accurately captures that which it purports to explain? In addition, where the object in
question is already theorized by participants themselves, it is vital that any higher-
level theoretical explanation of the object rest upon an accurate understanding of it.
And an accurate understanding of it for these purposes is prima facie one the
participants have. Why? Because if the object in question is in part constituted by the
conduct and beliefs of participants, then a theoretical account of the object that is
consistent with that conduct and those beliefs is undoubtedly “of’ that object as
understood by participants. This dimension of the fit requirement also provides a
means by which theorists who offer an account of an object can show that some
aspects of the object are more significant (and thus more deserving of theoretical
attention) than others. For, if participants regard those features as significant, that is
suggestive evidence that they are indeed significant.
It might thus be said that theoretical accounts of complex aspects of social life
like private law must fit (or explain) all the features of that aspect of social life that
participants regard as significant. This is only a prima facie requirement, though,
because allowance must be made for the possibility that agents can be mistaken both
in their beliefs and in their understanding of their conduct and the practices and
institutions of which it is part. Such allowance must be made if participants’ views are
corrigible, which is simply a way of saying that our social world is one in which
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ideology (in the critical- or false-consciousness sense) is possible.’34 This does not,
however, make the prima facie requirement bogus: it constrains in the sense that
justification is required for a departure from participants’ views. Reasons must be
given to show how and why participants’ own views of the conduct, practice, or
institution in question have gone wrong. Part of the argument of part II was that
neither Coleman nor Weinrib does a good job of showing why participants whose
view of tort law does not fit with theirs are mistaken.
Part II also accepts an assumption shared but also sometimes betrayed by
Coleman and Weinrib, namely, that theories of private law must in some appropriate
sense fit the institution and its constitutive practices. By contrast, the argument of part
III is that it might be a mistake to expect particular moral or political accounts of
private law to fit (in the sense of determining or explaining) particular aspects or
decisions or developments within the law. Now, if a theory need not fit each and
every detail of its object, there is no contradiction here. It is thus consistent to affirm
both (1) that as a general matter theoretical explanations or accounts of objects must
fit those objects in such a way as to be “of’ those objects, and (2) that the content of
some theoretical normative accounts may not throw much explanatory light on some
aspects of some objects. The first claim is in effect an adequacy axiom for any
theoretical account of any object, while the second simply highlights a feature
(bluntness) of the content of some normative explanatory theories (like corrective
justice) and some practices or institutions (like private law). But lack of contradiction
at a general level clearly cannot eliminate the possibility of tension arising between
these two claims in particular theories. So, have the arguments of parts II and III done
anything more than illuminate this tension as it occurs within the theories of Coleman
and Weinrib? Possibly not. Yet that is not a completely useless yield, since we now
have an initially plausible but admittedly
tentative explanation of why some
noneconomic accounts of tort law fail in their theoretical ambitions. Knowing why an
expedition to scale a particular mountain failed is a helpful prerequisite
to a
successful ascent. The failure might necessitate a change of route and a scaling back
of ambition, but the value of the failed attempt is nevertheless undeniable.
134 While not perhaps the first critical account of ideology, Marx’s discussions in Capital are among
the most enduring. See Karl Marx & Frederick Engels, Capital I in Karl Marx, Frederick Engels:
Collected Works (London: Lawrence and Wishart, 2001) vol. 35 at 81-94, 185-86, 537-42; Karl Marx
“& Frederick Engels, Capital II in Karl Marx, Frederick Engels: Collected Works (London: Lawrence
“& Wishart, 2001) vol. 36 at 227; Karl Marx & Frederick Engels, Capital Ill in Karl Marx, Frederick
Engels: Collected Works (London: Lawrence and Wishart, 2001) vol. 37 at 209. For other interesting
and helpful sources among the glut of discussions of ideology, see Denise Meyerson, False
Consciousness (Oxford: Clarendon Press, 1991); John B. Thompson, Ideology and Modem Culture:
Critical Social Theory in the Era of Mass Communication (Cambridge, U.K.: Polity Press, 1990) at
28-121. The principal difference between critical and noncritical accounts of ideology is that the
former regard ideology as necessarily baleful and to be avoided; the latter do not. While some of
Marx’s early writings suggest a commitment to a noncritical account of ideology, the most explicit
noncritical accounts have been developed by those writing under his influence. See Louis Althusser,
For Marx, trans. by Ben Brewster (London: New Left Books, 1977) at 219-47.
2007]
W LucY- CONTEMPORARY PHILOSOPHIES OF TORT LAW
655
The lesson of parts II and III is thus not as simple as might be hoped. It is, rather,
hedged with qualifications, caveats, and cautions. This is not a reason to doubt the
lesson, for the issues in play are complex. Equivalent issues have, indeed, dogged the
social or human sciences from their inception. Whether they can be resolved by a
switch in explanatory paradigms or the adoption of an allegedly radical new approach
to social-scientific and philosophical explanation and understanding, has not been
considered here.’35 Another issue has been touched upon frequently but only
indirectly, even though it is vitally important to the overall argument offered. This
looming background presence is the general issue of concept formation in the human
(or social) sciences and the ways in which it impinges on jurisprudential accounts of
tort in particular and law in general.’36 As a result, the case for tailor-made
philosophies of tort law is not yet conclusively made out by the argument of this
essay; neither is the charge that some existing accounts of tort law are off-the-peg.
The overarching question of the essay, namely, that of the proper relation between tort
law and jurisprudential theories of tort law, thus receives only an inchoate answer: the
them should be made-to-measure and not off-the-peg. The
relation between
theoretical account should fit in all the right places without, of course, being too tight
a fit. This implies neither that a theoretical account or understanding of tort law is
impossible nor that particular kinds of philosophical or theoretical approach are
unworthy. ’37
Conclusion
The two noneconomic accounts of tort law examined here promised two distinct
intellectual advantages when compared with economic accounts: first, a better
understanding of the structure of the law (bilateralism) and, second, a better
understanding of the law’s normative basis (corrective justice). It was argued that the
its
first promised advance
proponents appreciate, while the second is nowhere near as problematic as one
particularly interesting critic thinks. In addition, some general thoughts were offered
about how the methodological problems facing Coleman’s and Weinrib’s corrective
is much more methodologically problematic
than
135 So, for example, no attention has been given to the possible effects on these issues of “the
postmodern turn”. For a useful outline of this family of approaches, see Steven Seidman, ed., The
Postmodern Turn: New Perspectives on Social Theory (Cambridge: Cambridge University Press,
1994).
136 The general issue is well treated in a now forgotten classic. See Clive Grace & Philip Wilkinson,
Sociological Inquiry and Legal Phenomena (New York: St. Martin’s Press, 1978). It also crops up
intermittently in Roger Cotterrell, The Sociology of Law: An Introduction, 2d ed. (London:
Butterworths, 1992).
137 For an argument that comes close to making the first claim (albeit about private law as a whole),
see Stephen Waddams, Dimensions of Private Law: Categories and Concepts in Anglo-American
Legal Reasoning (Cambridge: Cambridge University Press, 2003). For an instance of the second
claim, see Richard A. Posner, The Problematics of Moral and Legal Theory (Cambridge: Harvard
University Press, 1999).
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[Vol. 52
justice accounts of tort law, as elucidated at various points in parts II and III, might be
tempered. Those problems triggered the discussion in part IV, which elucidated some
general considerations undoubtedly in play in the task of offering a “philosophical”
account of any area of law.
It is perhaps worth noting that the issues of method and fit explored in this essay,
and the specific problems to which they give rise, are unlikely to be unique to
philosophical accounts of tort law. These two issues highlight some difficulties latent
in any attempt to give anything more than a descriptive “chronicle” of any segment of
the law. Such a chronicle would presumably be nothing more than a list of cases or
statutory provisions or propositions of law (case A holds such and such, case B thus
and so … section 1 requires this, section 2 that … ). It would also presumably eschew
any effort to either link the various propositions of law by, for example, asking why
they should be regarded as belonging to this rather than that segment of law, or to
organize them by, perhaps, reference to their function, aim, or value. Once a search
for the unity or point or function of some area of legal doctrine begins, questions of
method and fit become salient. How, for example, is the point or function of some
doctrinal area determined-by reference to that area of law’s effects in the wider
world, by reference to what lawyers think its function is, or by reference to some
account of what its point ought to be? And once this issue is broached, the issue of fit
also arises, since it is (almost?) always true that accounts of the point or purpose of
some segment of law fail to accommodate each and every doctrine or rule in that
segment. To see these issues and to pose some of the difficulties they present is, of
course, not to solve them. But, since any solution requires a clear statement of the
problem it purports to cure, we may after all have made some progress here.
