theroies of tort

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Theories of Tort Law

A tort is a legal wrong. Tort law is a branch of the civil law;

the other main branches are contract and property law.

Whereas in criminal law the plaintiff is always the state andthe defendant, if found guilty of a crime, is punished by the

state, in civil law the dispute is typically between privateparties (though the government can also sue and be sued). In

the case of torts, the plaintiff is the victim of an alleged wrong

and the unsuccessful defendant is either directed by the court

to pay damages to the plaintiff (the usual remedy) or else to

desist from the wrongful activity (so-called "injunctive

relief"). Examples include intentional torts such as battery,defamation, and invasion of privacy and unintentional torts

such as negligence. Most contemporary tort theory focuses on

the legal consequences of accidents, where the relevant forms

of liability are negligence and strict liability. This entry

likewise focuses on these forms of liability.

Misfortune happens and when it does its victims incur costs.

Those costs can remain the burden of victims or they can beshifted to others. Sometimes the costs are borne by everyone

(within a particular group or political community). Still other

times those costs are borne by particular individuals, namely,

those who are responsible for having caused them. The

question is: Who is to bear the costs of life's misfortunes:

victims, the community as a whole, those who are responsible

for them, or someone else entirely? How are we to answer this

question? What principles ought to guide the decision, andwhat institutions ought we create to realize these principles in

practice?

1. Introduction 2. The Difference Between Fault and Strict Liability
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3. Framework for a Theory of Tort Law 4. Theories of Torts: Economic Analysis 5. Theories of Torts: Corrective Justice Bibliography Other Internet Resources Related Entries

1. Introduction

Let's set aside for the moment the costs of misfortune that are

borne collectively and distributed throughout the community

through tax systems that support, for example, social welfare

and safety net programs more generally. Of those that remain,

the question is whether the costs are to be borne by victims or

some other particular person or persons. Tort law is one of the

institutions political communities develop in order to allow

victims the opportunity to shift the costs that befall them to

others. Insurance is another such institution. Many individuals

purchase first party insurance to protect themselves against

having to shoulder the full costs of some misfortunes that may

befall them and to guard against others. Private health

insurance provides a good example of first party insurance

against risk to oneself. The contrast is with third party

insurance a contract into which one enters to guard against

shouldering the full costs of misfortune one imposes on others

for which one is held by law to be responsible.

Tort law and insurance are connected in the following way.Tort law establishes conditions under which victims can shift

at least some of the costs they incur to others. All individuals

realize that they may be subject to a judgment against them in

torts and so many buy third party insurance to protect them

from bearing the full costs of those judgments. In some
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jurisdictions purchasing third party insurance is mandatory.

All individuals are likewise aware that they may be victims of

another's actions and may not be able to secure a favorable

judgment against their injurers or they not deem it worth

the effort to pursue redress through the courts. So many ofthem buy first party insurance to guard against some of the

costs they would otherwise have to shoulder completely.

It is important to note that tort law provides an avenue of

redress, not a guarantee of recovery. The victim must

determine whether pursuing a remedy through torts is worth

the effort and cost. Indeed, as an empirical matter most simply

grin and bear the loss then move on. When a victim choosesthe form of redress provided by tort law she is given the

opportunity to shift her losses to another provided the

conditions the law sets out for doing so have been met. The

conditions for shifting losses from victim-plaintiffs to injurer-

defendants are expressed in liability rules . The law of torts

distinguishes between two basic kinds of rules: those that

impose fault liability and those that impose strict liability.

In the next section we will characterize the difference betweenthese liability rules precisely, but for now it may be helpful to

illustrate the underlying distinction in familiar terms that do

not rely on the technicalities of the law.

Suppose I made a mess of some sort on my property, then I

turned to you and presented you with the bill for cleaning it

up. In the absence of some prior agreement we might have

made this would seem rather odd. After all, it is my mess, notyours. The burden, accordingly, is mine, not yours, to

discharge. Now suppose that instead of making a mess on my

property and presenting you with the bill, I simply move the

mess I made to your property (or I make the mess on your

property from the get-go), and simply walk away claiming the


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cleanup problem is now yours. If it was inappropriate of me to

present you with the bill for the mess I made on my property,

it hardly seems that I have improved matters by placing my

mess on your property instead. It is, after all, my mess, and

the responsibility of cleaning it up is mine. This is theunderlying thought behind strict liability. One has a duty to

clean up one's messes, and that responsibility does not appear

to depend on how hard one has tried not to make a mess in the

first place.

On the other hand, unless each of us stays in his respective

dwelling, we are bound to make the occasional mess in each

other's lives. You would not be justified in demanding of methat I never bump into you or make something of a mess in

your life, nor would I be justified in making similar demands

of you. What I can demand of you is that you take my

interests into account and moderate your behavior

accordingly. You need to take reasonable precautions not to

harm me; you need to avoid being reckless with respect to my

interests. And I am obligated to treat you similarly. That is,

what we have a right to demand of one another is that webehave responsibly with respect to the other's interests. This is

the underlying thought behind fault liability.

The question is which is the appropriate standard of liability

in torts? Most tort theorists believe that we cannot answer that

question without first answering another namely, what are

the goals or aims of tort law? The conditions of liability in

torts justify imposing a duty of repair on those who satisfythem only if (a) the duties so imposed are the ones best suited

to help tort law meet its goals, and (b) the goals are

themselves justified. The primary focus of tort theory has

been to identify the goals of tort law and to justify them as

legitimate aims for the law to pursue. Once the goals are


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identified and justified, tort theory is then a matter of

exploring the extent to which the conditions of liability in

torts are appropriate instruments for pursuing them.

Put this way, tort theory is largely a normative activity thatappears to eschew explanatory projects. Whereas explanatory

projects in law can be pursued without raising justificatoryquestions, it is less clear that justificatory projects of this sort

can be pursued completely independently of basic explanatory

ones. Consider the claim that the goal of tort law is

deterrence. The claim is not that deterrence is a legitimate

goal for some logically possible tort law. The claim is that

deterrence, for example, is the goal of this or that system oftort law; and making out such a claim requires showing that

the law makes sense as the sort of thing that could pursue that

goal or aim. That requires in turn establishing that various

features of existing or idealized practice makes sense in the

light of the goal one attributes to it. In that sense, the

normative project requires that we address certain explanatory

or conceptual questions. And so part of making the case that

say, the efficient reduction of accident costs is the goal of tortlaw rests on showing that fundamental features of actual tort

practice are best explained by seeing them in the light of

efficiency.

As noted above tort law has both strict and fault liability rules.

Thus, we have at least two projects. The first project is to

distinguish between fault and strict liability as conditions of

liability in torts. The second is to explore the extent to whichthe central features of tort law including the rules of fault

and strict liability can be explained by the putative goals of

tort law.

2. The Difference between Fault and Strict Liability


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There are three basic elements in a tort: wrong, harm and an

appropriate relationship between the injurer's wrong and the

harm to the victim. To harm someone is to set back a

legitimate interest of hers. The law does not recognize all

harms as grounds for a claim in torts. If you beat me in tennisor in competition for the affections of another, I may be

harmed, and you may be the cause of it, but I have no claim in

torts to repair for my broken heart or my bruised ego. Even if

the interests harmed are protected by the law, claims to repair

for the losses one imposes on others require more than risk

and harm; they require a wrong the violation of a duty not

to harm or not to impose risks of a certain kind on others. You

have no duty not to harm me through competition in businessor the affections of another, and so in harming me you do not

thereby wrong me. There is no overstating the importance of

the idea of a wrong or of a breach of duty to tort law.

The central idea in tort law is that liability is based not so

much on acting badly or wrongfully, but on committing a

wrong. At the same time, a victim's claim to recover for harm

to her depends on the wrong the injurer has committed being awrong to her. It is not enough that the injurer has committed awrong and that she (the victim) has suffered as a consequence.

The defendant's liability to the victim and the victim's claim

against the defendant depend on the defendant's having

breached a duty of care to the victim.

Just as harm without wrong is no tort, wrongs without harms

are typically not torts either. Suppose for a moment that everymotorist has a duty to exercise reasonable care in driving his

or her car, and that the intended beneficiaries of the duty

include all the pedestrians and other drivers who might be put

at risk by one's failure to drive with adequate care. Now

imagine two people who drive recklessly and in so doing


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breach the duty we suppose they have, but that one motorist

causes damage whereas the other escapes injuring anyone. By

hypothesis, both have breached a duty to those whose security

is put at risk, and in doing so both have committed wrongs.

Only one driver harms someone as a result of the wrongs hecommits and thus only he subjects himself to tort liability.

So torts require both wrong and, in most cases, harm. A

notable exception to the harm requirement is the case in which

injunctive relief is awarded in order to prevent harm that is

virtually certain but yet to occur. As a general rule though

torts require both wrongs and harms. They require more as

well: for liability in torts can be imposed only if the harm hasbeen caused in the appropriate way by the wrong. A's wrong

must be what the law calls the proximate cause of B's harm.

These are the elements of a tort, but the question is how arethey represented in the context of the rules of strict and fault

liability. On the conventional view, the difference between

fault and strict liability is that in strict liability, but not in fault

liability, a defendant can be liable even if he has done nothingwrong. The common understanding, then, is that strict liability

is liability without wrong, and fault liability alone is liability

based on the injurer's wrong. But then the conventional view

seems incompatible with the claim that all torts involve

wrongs.

There is a distinction between wrongs and wrongdoings a

difference between committing a wrong and actingwrongfully. To act wrongfully is to act without justification or

excuse. Wrongdoing reflects badly on an agent for his actions.

On the other hand, to commit a wrong is to breach a duty, to

invade another's right. One can breach a duty for good reason,

with adequate justification, or under excusing conditions.


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Rights in other words can be invaded innocently (or

justifiably) on the one hand, or wrongfully (or unjustifiably)

on the other. This distinction is sometimes expressed in terms

of the difference between rights-infringements and rights-

violations. Whether my action invades your right is one thing;whether, if it does, the action reflects poorly or favorably on

me is another.

Let's apply this distinction to the conventional understanding

of the difference between strict and fault liability. When

liability is imposed strictly, the question is whether the

defendant has invaded the plaintiff's right. A plaintiff under

strict liability does not have to establish the fault of thedefendant, though a judgment of strict liability does not

necessarily mean that the defendant has acted innocently or

justifiably. According to the conventional view, under fault

liability, the plaintiff has to establish not only that he was

wronged by the defendant but that in doing so the defendant

acted wrongfully, that is, without justification or excuse.

But this way of explaining the distinction between fault andstrict liability leads us even further astray. For if the victim's

being wronged by the defendant is adequate to ground his

claim to repair (other things being equal) in some cases, why

is it not enough in all cases? Concern for the character of the

defendant's action may be appropriate to the question whether,

in addition to incurring a duty to make his victims whole, he

should be punished, held up to ridicule or banished from the

community. Under strict liability, the breach of the duty iswhat is relevant to the duty to repair. In other words, if a

practice of strict liability is justified at all, then the duty to

make repair cannot depend on whether the injurer has acted

justifiably or not. If that is so, why should the duty of repair in

fault liability require more than it does in strict liability?


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When fault is treated as an element of a tort distinct from the

breach of duty, either fault liability requires too much or strict

liability too little.

The conventional understanding of the difference betweenfault and strict liability goes astray precisely because it

distinguishes the breach of the duty from the faultrequirement. The better view is that the difference between

fault and strict liability is a difference in the content of the

underlying duty of care. To see this, consider the cases of

blasting, on the one hand, and motoring on the other. In a case

like blasting an activity traditionally falling under strict

liability the blaster has a duty-not-to-harm-by-blasting.This is the content of the duty of care blasters owe those

whom their blasting puts in danger. On the other hand, in the

case of motoring a familiar example of an activity covered

fault liability the motorist is thought to have a duty-not-to-harm-by-faultily-motoring. That these duties have differentcontent is illustrated by their respective success and failure

conditions. A blaster fails to discharge his duty when his

blasting, regardless of the care he takes, injures someone towhom he owes the duty. A motorist fails to discharge his duty

when he harms another negligently, recklessly or intentionally

through his driving. The blaster can satisfy his obligations

only by not harming another. The motorist can meet hers

either by not harming anyone or, in the event she harms

someone, by not having done so negligently, recklessly or

intentionally. And this is just another way of saying that the

contents of the respective duties differ. The fault requirementis thus an aspect of the underlying duty, not a reflection on thecharacter of the defendant's action.

The force the interests of others imposes on our duty to

moderate our behavior varies with the circumstances.


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Sometimes, the likelihood or magnitude of harm to others is

so great that the duty we have to others is not to harm them as

a result of the actions we choose to undertake. At other times,

the balance of interests indicates that we need to take

reasonable precautions to guard against harm to others, and nomore. Understood in this way, the problem is familiar and not

in the least unique to tort law. It is a matter of ordinary

morality that the content of our duties to others varies as a

consequence of a range of familiar factors. Noting this does

not solve the problem of telling us why sometimes the duty is

strict and other times it demands only reasonable care. But the

difference is that between points on a continuum, and so the

stark contrasts that are implied in the conventional view areinapt.

3. Framework for a Theory of Tort Law

It is customary in tort theory to distinguish substantive from

structural and procedural aspects of tort law. The rules of

strict and fault liability are substantive features of tort law.

The bilateral structure of a tort suit the fact that victims suethose they identify as their injurers and do not instead seek

repair from a common pool of resources (as is the case in New

Zealand) is a structural feature of our tort law. The fact that

the burden of bringing forward a claim and of making the

prima facie case falls to the plaintiff is a procedural feature oftort law, and so on. We have already identified the most basic

substantive concern of a tort theory, and that is to justify,

insofar as possible, the rules of fault and strict liability. It isnot the only substantive feature of the practice that has drawn

the attention of theorists, as the following summary of

substantive concerns helps to make clear.


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Mischief, even great mischief, that does not materialize into

harm, may be wrongful, but it is not tortuous. Similarly, a

reckless and irresponsible defendant who is fortunate to

escape causing major damage to others, is only liable for the

minor damages he causes. This in stark contrast to thegenerally focused and attentive actor whose minor mischief

occasions a great deal of misfortune. The general principle of

tort is that both are liable for the full costs of the harms their

conduct has occasioned. Yet, the burdens they face bear no

relationship to the degree of their relative wrongdoing. Why

should fortuity play so pervasive and powerful a role in tort

law?

A defendant judged liable in torts incurs a duty to make good

the full costs of the harms that result from his wrong. The

liability takes the form of the imposition of a duty of repair.

The defendant, however, is often able to discharge his duty

through an insurance mechanism. The contrast with the

criminal law can be illuminating. It is unimaginable that we

would permit individuals to purchase insurance against the

likelihood of criminal liability. What explains the difference?

4. Theories of Torts: Economic Analysis

Competing theories of tort law offer accounts of these various

features of tort law. The degree to which they illuminate our

practice is relative to their perspective on legal practice It is

helpful to understand tort law through the lens of a judge

deciding cases based on prior rulings and doctrine, from theperspective of potential litigants seeking the vindication of

claims, and from the perspective of the legal reformer trying

to formulate the best rules for imposing liability. Economic

analysis of law is unconvincing if its aim is to illuminate the

law from the perspective of either judge or litigant. It is much


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more plausible when viewed through the lens of a particular

kind of legal reformer. We will get the most from economic

analysis if we remind ourselves that the economic analyst is

asking questions of the following sort: what substantive

liability rules are most likely to have the greatest impact onreducing the incidence of accidents at the lowest cost? What

procedural rules at a trial are most likely to induce those with

the most relevant information to reveal it, or most likely to

lead to optimal investments in information or safety; and so

on. These are the questions of a reformer less interested in the

actual state of tort law than in how the law can be improved.

The economic approach to tort law, like the economicapproach to law more generally, attributes a particular goal to

the law: namely, efficiency. In the case of tort law, efficiency

is understood as optimal cost reduction. The aim of tort law is

to minimize the sum of the costs of accidents and the costs of

avoiding them. This is to be accomplished in part by creating

a system of incentives adequate to induce individuals to invest

appropriately in determining what the optimal precautions are

and to take them.

The distinguishing feature of economic analysis is the account

it provides of fault: the formula it offers for determining

whether an actor has adequately taken into account the

interests of others. In general, to be at fault in torts is to fail to

take others interests appropriately into account and to adjust

one's conduct accordingly. Reasonable persons take the

interests of others appropriately into account and adjust theirbehavior accordingly. To be at fault is to fail to behave as

would a reasonable person of ordinary prudence. It is a failure

to accord others the appropriate level of care to guard against

harming their interests.


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Economic analysts focus primarily on the concept of

negligence. Negligence is the failure to take adequate care and

adequate care consists in taking cost-justified precautions.

Precautions are cost-justified whenever their cost is less than

the costs of the harm risked (by not taking precautions)discounted by the probability of the harm's occurrence. Once

we understand negligence as the failure to take cost-justified

precautions we need to ask what justifies imposing liability on

those who have failed to take appropriate precautions.

From an economic point of view, the costs of the accident for

which one is responsible are sunk. There is nothing to be done

about them. All that we can do is shift the costs from thevictim upon whom they have fallen to someone else. From the

economic point of view, such a decision must be based on the

impact of cost imposition on the incentives of individuals to

invest appropriately in safety. Individuals ought to bear sunk

costs only if imposing those costs on them will have the

desired impact on the reduction of costs in the future. The

responsibility relationship is backward looking; the cost

reduction aim is forward looking. It may turn out that havingthe property of being responsible for a harm may be reliably

connected to the property of being an effective cost-avoider.

Even in that case, being responsible for a loss is not the

groundof liability, but is instead a reliable indicator that theinjurer possesses the property that is the ground of liability.

Beyond that, if having the property of being responsible for a

harm is a reliable indicator that one has the property of being

a good cost-avoider (even of harms of the particular sort forwhich one is responsible), it does not follow, without more,that one should be held liable for the particular harm for

which one is responsible. One could just as well be held to

bear the costs of a similar injury, or one could be held to bear

the costs adequate to induce investments in cost reduction


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and those costs may or may not coincide with the costs

associated with the harm for which one is responsible. So it

cannot be part of an economic argument that the party who is

at fault must pay for the costs of harms that are his fault

because he is responsible for them. Rather, liability isimposed on those at fault in order to put in place the right

incentives on the defendant and those similarly situated.

If we assume that actors are fully rational and informed,

imposing liability on those at fault will have the desired effect

on others. Here's the argument. If we assume that agents are

fully rational, then under the economic conception of

rationality it follows that they will maximize benefits orminimize costs. If agents are fully informed, they know the

costs of liability and the costs of precautions. Ex ante, all

agents will choose the lesser of these costs. The relationship

between precaution costs and potential liability based on fault

is as follows. An agent will be at fault only if the costs of

precautions are less than the costs of the harm discounted by

the probability of occurrence. To avoid being at fault the

rational agent takes the precautions, which, in addition, are thelesser costs he faces. If the costs of precautions exceed the

cost of the harm discounted by the probability of its

occurrence, then he will not take precautions, but then he will

not be negligent either. Should harm to another result, he will

not be required to shoulder the victim's costs. That will be for

the victim to do (an important consequence of fault liability to

which we shall return below.) So the rational and informed

agent will take precautions whenever it would be efficient forhim to do so, not otherwise.

In contrast to fault, strict liability is imposed whether or not an

agent ought to have taken precautions. Why might we want to

hold someone liable who has in fact invested in cost-justified


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precautions? The economic answer to this puzzle in effect is

that there is more than one way to skin a cat. Skinning a cat,

in this context, amounts to inducing individuals to take cost-

justified precautions.

An agent subject to strict liability has to bear the full costs of

his activities the costs to him of engaging in it and thecosts his engaging in it imposes on others. All the costs are

his. The question he faces, then, is whether there is anything

he might do to reduce the costs he faces. That depends on

whether there are precautions he can take, their costs and their

expected effectiveness. In other words, if the costs of

precautions are less than the harms likely to occur discountedby the probability of their occurrence, then he will take the

precautions. He does so because these costs are lower than

those he would otherwise expect. Notice that those

precautions are in fact the cost justified ones. And so under

strict liability the rational and informed agent will also be

induced to take all and only cost justified precautions. In this

respect fault and strict liability give the same results. The only

difference between the two is that under fault liability thecosts of accidents not worth preventing are borne by victims,

whereas under strict liability, those same costs are borne by

injurers. In fault liability, the costs of accidents that are no

one's fault are the burden of victims; in strict liability, they are

the burden of injurers.

If strict liability can induce efficient investments in safety,

why would we have a rule of fault liability? If fault liability iscapable of inducing individuals to take optimal precautions,

why impose strict liability? The two rules have different

distributional consequences. From the economic point of

view, the distributional consequences are not important in

their own right, but they can be important because of their


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impact on activity levels. The choice of strict or fault liability

is in one sense a choice between making activities more or

less expensive relative to each other. Take ranching and

farming for example. A rule of strict liability imposed on

ranchers for the damage their straying cows impose on corncrops makes ranching more expensive relative to farming.

This means that even if, at any level of ranching and farming,

both strict and fault liability could be efficient in reducing

accidents at that level, a rule of strict liability will makeranching relatively more expensive and reduce the overall

level of it (in relation to farming). This means more farming

and more farming accidents and fewer ranching related

accidents. And so on. If efficiency depends on activity levels,then fault and strict liability need not be equally efficient. Or

put another way, because fault and strict liability have

differential impacts on activity levels, they can be used

differentially whenever appropriate to secure an efficient

overall allocation of risks.

The implications of fault and strict liability are more

complicated once we distinguish between one and two partyaccidents. A one party accident is one in which in order

optimally to reduce the probability of its occurrence only one

of the parties to the accident need take appropriate

precautions. In contrast, in a two party accident, securing the

optimal reduction in the probability of the accident's

occurrence requires that both parties take appropriate

precautions. Setting aside the problem of activity levels, we

can be taken to have shown that in the case of one partyaccidents both strict and fault liability can be efficient. Thesame is not true in the case of two party accidents, where

strict liability is not efficient. In strict liability, the victim is

always compensated his full damages and therefore has no


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incentive to invest in precautions, yet the situation requires

him to do so.

In contrast, the rule of fault liability is efficient in the two

party case in that it induces both injurers and victims to makeoptimal investments in safety. The rule of fault liability

imposes liability on the injurer only if he is at fault. If theinjurer is rational, he will always take the cost justified

precautions. We established this result above in the discussion

of the one party accident case. Thus, the rational injurer will

never be at fault. If people are always rational, then the costs

of whatever accidents occur will fall to their victims.

Victims must assume, then, that the costs of all accidents will

be theirs to bear. Notice that this puts the victim in the exact

position the injurer is in under strict liability. On the

assumption that the injurer will never be at fault, the victimwill always be responsible for all of his costs. And just like

the injurer in strict liability, the victim must decide which, if

any, precautions to take. Whenever precaution costs are lower

than the expected costs of the harm victims will opt for them,otherwise not. In precisely the same way that strict liability

encourages injurers to take optimal precautions, fault liability

encourages the victim to do the same.

If fault liability is efficient, so too is strict liability with thedefense of plaintiff or contributory negligence. Here is anothersimple proof. This proof relies on the fact that the rule of fault

liability imposed on defendants can be redescribed as the rulethat victims are strictly liable for the costs of harms that befall

them unless they can establish the fault of their injurer. What

we call fault liability can just as easily be characterized as

strict liability for victims with the defense of injurer fault. But

if this rule is efficient, then so too is the rule of strict (injurer)


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liability with the defense of victim fault. They are the same

rule. All that changes is that every occurrence of victim is

replaced with injurer and vice versa. One rule is efficient if

and only if the other is. The rule of fault liability is efficient,

and therefore the rule of strict liability with plaintiff fault mustbe as well. In those cases in which both rules are efficient, the

choice between the two depends on other features of the rules:

in particular, costs associated with their administration.[1]

Notwithstanding the fact that it illuminates important features

of legal practice and remains an invaluable tool in the

assessment and reform of the law, economic analysis has

spawned considerable criticism. Let's begin with twostraightforward objections. Economic analysis reduces

reasonable risk taking to rational risk taking. In doing so, it

treats the care I owe you as identical to the care I would owe

myself. Suppose I engage in an activity whose benefit to me is

100 and whose costs to me varies. Whenever the costs to me

are under 100 it will be rational for me to absorb the costs and

continue on. As soon as the costs to me exceed the benefits, it

will no longer be rational for me to engage in the activity.

Economic analysis draws no distinction between the case in

which the costs and benefits are mine alone and the case in

which the benefits are mine to enjoy and the costs yours to

endure. But what is reasonable to expect of me when all the

costs are mine to bear may not be what is reasonable to

demand of me when the benefits are mine to enjoy and the

costs yours to bear. To be sure, there is no difference betweenthese cases from the point of view of collective rationality, but

that is just the point. There is no reason to identify the

reasonable with the rational in the torts context, where one

party (the injurer) secures the benefits (in the form of freedom

from the costs of precautions) and the other party (the victim)
http://plato.stanford.edu/entries/tort-theories/notes.html


19/45

bears the costs (in the form of the costs of injuries more likely

to occur). Economic analysis in effect imposes the fungability

of costs on the practice of torts without showing that in fact

the practice treats costs in this way. That is one reason for

thinking that economic analysts are reformers, not analysts oftort law.

Now the economic arguments we have considered talk loosely

of fault and strict liability, but nowhere invoke the notion of a

duty. As we have already seen, the duty element of a tort has

two dimensions. The first concerns those to whom I owe a

duty of care; the second concerns the content of that duty. As

we noted above, the fault standard is part of the content ofsome of our duties to others; it does not mark out the class of

individuals to whom I have a duty. The distinction between

the scope and content of the duty of care is central to the

American tort case, Palsgraf v. Long Island R.R.. Famously,Judge Cardozo argued that each of us has a duty to moderate

our actions by taking into account only the interests of those

who fall within the ambit of foreseeable risk. I have to guard

against injuring those who fall within the zone of dangerassociated with my conduct. Others may be injured by what I

do, and what I do may have been lamentable or mischievous,

but those who fall outside the ambit of foreseeable risk have

no claim in torts against me. They have no claim, not because

I did not act badly or carelessly. Ex hypothesi, I have. Theyhave no claim against me because I did not wrong them. I did

not wrong them because I had no duty to take their interests

into account in regulating my conduct. This point cannot beemphasized enough. The only individuals who can in tortshave a claim against me are those to whom I have a duty of

care. It is only with respect to those individuals that I must

exercise reasonable care.


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The problem for economic analysis is that the duty restriction

on liability is incompatible with the goal of inducing

individuals to take appropriate precautions. In order to

encourage injurers to take appropriate precautions, each must

face the full costs of his activity. But the duty requirementallows injurers to displace at least some of the costs of their

conduct, costs that efficiency requires them to internalize.

This is one reason that economic analysis has no place for the

duty requirement.

Relatedly, tort law imposes the costs associated with the

actual causal upshots of an individual's action. From an

economic point of view, it is the risk of harm and not actualharm that should matter. One has to be careful not to

misunderstand this point. Harms are of interest to the

economic analyst. But the harms that matter from an

economic point of view are the ones that have not yet

occurred the ones that can be optimally avoided by

inducing individuals to take proper precautions and not the

harm that occasioned the case at hand. If what matters is

reducing the incidence of future harms, then the main concernof economic analysis should be conduct that risks harm. Some

conduct that risks harm actually causes harm as well, but not

all conduct that risks harm does. Harm that has occurred is of

interest only insofar as it provides reliable evidence of

riskiness of the underlying conduct. In our tort practice,

however, harm, not the risk of it, is a ground of liability and

not merely an epistemic convenience. To the extent that the

fact of harm is central to the practice of tort law and not anartifact of our limited epistemic capacities, the economicanalysis falls short.

Finally, let us turn to the structure of tort law. Tort law has a

bilateral structure. If the victim of another's mischief brings an


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action in torts, he brings it against the person he alleges has

harmed him. In making out his case, the plaintiff argues that

the defendant breached a duty of care owed to him, and that

the breach has resulted in the harm of which he complains.

From the normative point of view, the most basic relationshipin torts is that between the injurer and the victim whom he has

wronged. From the economic point of view, the most basic

relationship is that between each litigant, taken separately, and

the goal of minimizing the sum of accident and accident

avoidance costs. That is, economic analysis separates the

injurer from the victim. The relevant normative questions are:

(1) what is the relationship between the injurer's conduct and

the goals of tort law (cost reduction), and (2) what is therelationship between the victim's conduct and the goals of tort

law?

The relationship between particular victims and injurers

matters to economic analysis only insofar as features of it

might provide evidence of the ability of either to reduce

accident costs. Since the aim of accident law is optimally to

reduce accident costs, the loss should be imposed on thatindividual who is in the best position to reduce costs at the

lowest cost. This means that from an economic point of view,

there is no reason why the victim should be suing the person

he alleges injured him.

5. Theories of Torts: Corrective Justice

According to the principle of corrective justice, an individualwho has wronged another has a duty to repair the wrongful

losses occasioned thereby. The corrective justice account thus

illuminates not just the bilateral structure of tort litigation, but

tort law's emphasis on harm caused rather than harm risked.


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Arguably, central to tort law is the moral notion of

ownership , not the moral notion of blame . Tort law picks

out a particular way of recognizing one's ownership of some

of the untoward outcomes for which one is responsible. It

does this by imposing a duty to make good the costs one'swrongs have imposed on those one has wronged. And so,

rather than trying to determine whether the injurer has

satisfied the conditions that would warrant blaming him for

what he has done, tort law inquires into whether the injurer

has satisfied conditions necessary to impose on him a duty to

repair the plaintiff's loss. In short, the law asks whether the

loss is attributable to him as his doing: whether, to use the

currently fashionable phrase, he is outcome responsible forit. In the prevailing view, to be outcome responsible, the

outcome must be foreseeable and avoidable.[2] This emphasis

on the ascription of responsibility for outcomes rather than on

ascriptions of blame or culpability makes sense within the

corrective justice account of tort law in ways in which it

would not within a traditional retributive view.

According to economic analysis, all liabilities are simply oneor another cost. There is no significant normative difference

among punishments, sanctions, duties of repair and taxes. All

that matters is the way in which each impacts rational

decision-making. But there are important normative

differences among these kinds of costs that this crude picture

misses. Tort law imposes a duty of repair, and while it is true

that a person who is under a duty to act is constrained in the

set of actions open to him, duties are neither punishments norsanctions. In contrast with tort law, criminal wrongdoers aresubject to punishment for their crimes, and while this means

that they are not at liberty to prevent others from punishing

them, they have no duty to be punished or to permit others to

punish them.


23/45


24/45

repair, not the duties of care that are the bases of those duties

of repair. Though it grounds duties of repair, it does not

mandate a mechanism by which those duties are to be

discharged.

It is tempting to think of corrective justice as a goal of tort law

in the same way that economists think of efficiency or optimaldeterrence as a goal of tort law. The better view is that

corrective justice is not a goal of the law in the way in which

efficiency might be. Rather, corrective justice itself is a

principle of justification; it seeks to articulate grounds upon

which a certain category of duties rest. It claims that certain

duties of repair or repayment are grounded on one'sresponsibility for them. The grounds of the duty to repair are:

(1) the fact that one has a prior duty to take into account the

interests of another and to mitigate one's own conduct

accordingly; (2) the fact that one has failed to do so; (3) the

fact that one's failure to do so results (in an appropriate way)

in harm to another; and (4) the harm that results is one for

which can be charged to an agent as his doing, or, in the

contemporary jargon, for which he is outcome responsible. Noone claims that these grounds must be satisfied if ever an

agent is to have a duty of repair or repayment. Corrective

justice grounds some, but, very likely, not all of our duties of

repair.

If this is the way to think about corrective justice, how ought

we think about its relationship to fault and strict liability? The

question is whether the duties of repair and the conditionsunder which they arise in tort law are ones which are by and

large grounded in the principle of corrective justice so

conceived. As I argued above, both strict and fault liability in

torts involve wrongs, that is, the breach of an underlying duty

of care. The fault in fault liability is not a modifier of the


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character of the injurer but a constraint on the content of the

underlying duty of care he owes the plaintiff. The difference

between fault and strict liability standards is a difference in

the nature of the content of the underlying duties we owe one

another.

In strict liability, the defendant is thought to owe the plaintiffa duty of the form A not to harm by X-ing. It is natural to

think that the duty is absolute or unconstrained. But it is in

fact constrained in several ways, and in each of the ways it is

constrained, the duty in strict liability resonates with the

conditions of a duty of repair in corrective justice. The blaster

is liable strictly, not to everyone who is injured by hisconduct, but only to those to whom he owed a duty not to

harm by blasting: those who fall within the ambit of

foreseeable risk. Second, he is not liable to all those that he

injures because he blasts, but only to those that are injured in

the appropriate way by his blasting. In strict liability, there are

the requirements of a wrong to a plaintiff (class), a harm, the

appropriate causal connection between the two, and other

elements of responsibility for the outcome, includingforseeability and avoidability.

These same elements are present in all the classic cases of

fault liability. The only difference, as we have noted, above is

that in fault liability the content of the underlying duty not to

harm differs from the duty in cases of strict liability. In fault,

the duty is not to harm faultily, that is, negligently, recklessly

or intentionally. In both the duty of repair requires the breachof a duty (a wrong), and responsibility for the outcome (the

injury or harm being caused in the appropriate way by that

aspect of the conduct that made it a wrong). Arguably, the

duties imposed in tort law are paradigmatically duties of

corrective justice. The bilateral structure of tort law and the


26/45

pattern of practical reasoning embodied within it is

transparent under the light of corrective justice, while cloudy

at best, and mysterious at worst when viewed in the dim light

of economic analysis. Moreover, the same principle explains

both the structure and substance of tort law, and thus providesexplanatory economy as well as consistency.

The corrective justice approach to tort law has been the object

of serious criticism. I want to focus on three of the most

important kinds of these. The first set of objections focuses on

the concept of wrong at work in the principle of corrective

justice. The second raises questions about the claim that

corrective justice is a matter of justice. The third raisesbroader doubts about the claim that the goal or purpose of tort

law is to achieve corrective justice. Let's consider these in

turn.

As I have characterized it, corrective justice sets out grounds

upon which a certain category of duties of repair or repayment

are justified. One of the grounds of a duty to repair is the

existence of a wrong, that is, the breach of a duty of care toanother. One might say that whereas corrective justice

theorists have been extremely concerned to specify

appropriately the conditions under which it is fair to impose

duties to avoid or prevent untoward consequences, they have

offered precious little guidance regarding the actual duties to

avoid or prevent harm that we owe to one another. This

complaint has been expressed in two slightly different forms

of criticism. The first is that to the extent that correctivejustice offers only an account of what ought to be done when

some individuals wrong others and not an account of what

constitutes a wrong in the relevant sense, the principle of

corrective justice is empty or merely formal. The second is

that since the principle of corrective justice appears to leave


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open what counts as a wrong, it may be that the wrongs that

give rise to a duty of repair are merely the failures to take cost

justified precautions, in which case the principle of corrective

justice collapses into the principle of efficiency.[3] A related

objection is that corrective justice offers us no way ofdetermining when a rule of strict liability is appropriately

imposed and when a rule of fault liability is. In other words,

corrective justice may tell us that strict and fault liability both

involve the breach of a duty of care and that the difference

between them concerns the content of the relevant duty, but it

offers us no guidance as to why some activities call for the

duty of care typified by strict liability whereas others call for a

duty of care of the sort associated with fault liability. Ifnothing else, the economic analysis, as we have seen above,

gives very clear guidance on this question.

In one form or another, the first objection is by far the most

pervasive objection to corrective justice accounts of tort law.

Were it a sound objection, it would be devastating. In fact, it

is not a serious objection, and rests on an important

misunderstanding. There is in morality, as elsewhere, asignificant, if limited, division of labor. It is not the burden of

corrective justice to explain the content of our duties not to

harm others or to determine their scope. It is instead a

principle that grounds some of the duties we incur in the event

that we fail to comply with our duties not to harm others. We

have a responsibility in general to mitigate our conduct by the

impact it is likely to have on the interests of others. This is a

matter of common sense morality and simple fairness. Thisgeneral duty we have to others is not itself a matter ofcorrective justice. Nor are the specific duties we have to

particular persons to take into account the impact of our

conduct on their interests in concrete ways matters of

corrective justice. It is a good question of morality, just what


28/45

it is we owe one another concretely in order to discharge our

general obligations of fairness to one another. How must I

mitigate my conduct in the light of your (presumably,

legitimate) interests? And which of those interests must I take

into account?

One can hold the view that drawing up a list of such concreteduties is the task of moral philosophy. Others may hold that

moral philosophy is unlikely to be able to provide us with a

definitive list, that at least part of duties we have to others will

depend on the practices we happen to have. In any case, these

underlying duties are not themselves duties of repair; they are

duties of care. It is not a burden of corrective justice toidentify or ground them.

Quite the contrary, in fact. Once we have concrete

requirements to take the interests of others into account in thisor that way in regulating our own affairs, we face the

altogether different question of whether, and in what ways,

the breach of these duties impacts the normative relationships

between the parties . What, in other words, are the normativeconsequences of a breach? Here is where the principle of

corrective justice makes its claim. It holds that in the event

certain conditions attend the breach, a second order duty of

repair exists. Whereas the underlying duties of care establish

in part normative relations between the parties, the breach of

such a duty creates a different but related normative

relationship. Or so the principle of corrective justice claims

We could adopt practices in which the losses suffered by

victims as the result of the breach of some are to borne

collectively by us all; or we could adopt practices in which the

victims are left to bear their own costs. Or we could adopt a

practice in which particular wrongdoers have the duty to make


29/45

good the costs they have imposed. Or we could adopt some

mixture of these responses, and others as well. In fact that is

precisely what we do. If we adopt a practice of imposing a

duty of repair on wrongdoers, such a practice is (were other

conditions satisfied) defensible as a matter of correctivejustice.

It is a further question whether commitment to the principle of

corrective justice demands that we have such practices. It is

one thing to claim that our practices of tort law the ones we

actually have and not all logically possible ones are

usefully or even best illuminated by a principle of corrective

justice; quite another to claim that corrective justice requiresthat we have an institution of tort law that is, an institution

that imposes legally enforceable duties of repair that could be

defended on the grounds of corrective justice. The principle of

corrective justice justifies some of the legally enforceable

duties to repair we might incur. It does not claim that we

suffer an injustice in the event we do not recognize such

duties in our legal practices. So, for example, there is no

reason to suppose that a no-fault scheme of liability foraccidentally imposed losses that distributes the costs of

accidents through general tax coffers would be incompatible

with corrective justice. Such an institutional arrangement is

best seen as reflecting the idea that we are less concerned with

the source of misfortune than with the urgency such

misfortunes create for those who bear them.

To be sure, there are differences between these cases. In theformer, no one may be responsible for the misfortune one

suffers; in the latter case, someone is. Corrective justice

embodies important moral values for it emphasizes not only

the notion of misfortune and loss, but the idea that we owe

duties of care to one another and the fact that some of the


30/45

misfortunes that others suffer are our doing. Corrective justice

connects us to our actions and the impact our actions have on

others in ways in which other principles of justice, for

example, distributive justice, do not. In arguing that corrective

justice does not mandate a system of tort law I am not sayingthat nothing would be lost from the moral point of view.

Whether something is lost depends on whether we elsewhere

express in our institutional life and practices the moral values

that are embodied in the principle of corrective justice. Those

values can be expressed adequately in a range of formal and

informal practices. They need not be expressed through a tort

law. For what a tort law does is express those values in a

particular way. It ties together one's duties to take into accountthe impact of one's conduct on others and one's responsibility

for what happens to others in the event one fails to do so in a

particular way, namely, by imposing a duty to make good the

loss. We could separate the former from the latter, however.

We could have practices of making formal apologies, of

offering services or other forms of aid or restitution, while at

the same time allocating the costs of misfortune more

efficiently through a general tax coffer. If we have a tort

system, it is not because such a system is mandated by

corrective justice. If such a system it is defensible it is

because, on balance, such a practice is a defensible way of

expressing the values embodied in corrective justice and of

doing so in ways that are cost effective and accident costavoiding, and so on.

The second objection was that if the principle of corrective justice is compatible with an economic theory of theunderlying wrongs or duties of care we owe one another, then

corrective justice is reduced to economic analysis. Whereas

no set of underlying duties falls out of the principle of

corrective justice, the principle constrains the set of duties that


31/45

can be protected or secured by it. The general form of the

constraint can be put abstractly. The underlying claims of

right and duty sustained by the principle of corrective justice

must be such that the imposition of a duty of repair

occasioned by their breach are requirements of justice and notmerely something that we can provide good instrumental

reasons for.

It may be helpful to illustrate the general point by considering

a different, and less controversial example (at least in this

regard): that is, the relationship between criminal punishment

and retributivism. Retributivism can only be plausible as an

account of criminal punishment if the crimes identified by thelaw are the sort that makes it in general clear why punishing

someone for them would be deserved. If, for example, there

were no excuses in the criminal law if all liability to

criminal sanction were strict in that sense and if only the

most trivial offences were crimes, retributivism would be an

implausible account of our criminal practices. The plausibility

of retributivism as an account of criminal punishment depends

on the conduct deemed criminal by the law and the conditionsof responsibility for those crimes being appropriate to an

attribution of culpability or blame. This example illustrates

two important points. First, no one criticizes retributivism as

empty because it does not provide a full accounting of the

wrongs for which punishment would be deserved. Second,

even though it does not provide an accounting of the

underlying wrongs for which punishment would be

appropriate, it does constrain membership in that set.

The same is true of corrective justice. While corrective justice

is not a theory of the wrongs it rectifies, it can only make

sense of tort law if in general the kinds of wrongs identified in

torts are ones that must as a matter of justice be repaired.


32/45

Another way to put this point is to say that even though

corrective justice does not have nor must it provide a theory

of the wrongs that are identified in torts, it in fact sets out

what are the clear or paradigmatic cases of such wrongs. It

clearly meets that requirement, for the wrongs it picks out asparadigmatic trespass against property, the intentional torts

of battery and assault, negligent regard for the interests of

others, and so on are the bread and butter of tort law.

We can draw three conclusions from this discussion. First,

corrective justice is not empty. It relies on the basic notion of

a division of labor in moral theory. Within its domain, it is as

substantive a principle as one can find. Second, it is notcompatible with all underlying theories of wrong. In fact it

imposes significant constraints on what can fall within the

class of wrongs for which repair can be a requirement of

justice. Finally, it does not require another full theory of

underlying wrongs in order to fill out its content. That is,

because corrective justice identifies a set of paradigms of

wrong compatible with it, the content of corrective justice

does not depend on a full moral theory of wrongs. Rather, thenotion of a wrong compatible with corrective justice may be

filled out by our practices of corrective justice including

tort law.[4]

We turn now to the question of whether corrective justice is

an independent ideal of justice. Here the worry is that what

makes corrective justice seem like a principle of justice

undermines its claim to independence, and whatever supportsits independence undermines its claim to being a principle of

justice. Corrective justice is a principle that requires

correction in an underlying distribution of holdings. The

wrongs that are the concern of corrective justice, one might

think, are violations of duties we owe one another to respect


33/45

the rights we have in those holdings. If those holdings are just,

then corrective justice requires us to protect it. But in doing

so, it does no more than return individuals to the positions to

which they were entitled as a matter of distributive justice.

Understood in this way, corrective justice is the ex postcomponent of distributive justice. That is, the claim to repair

is a requirement of distributive, not corrective, justice. Or, put

the other way, there is no independent principle of corrective

justice. On the other hand, if the underlying distribution is not

just, then corrective justice can sustain, enforce or entrench

unjust distributions of resources. In that case, corrective

justice is an independent principle, but it seeks to impose

duties to support unjust institutions. Independent, yes, aprinciple of justice, no.

In meeting this objection, corrective justice theorists have

typically taken either of two approaches. The first is to

identify the domain of distributive justice with the initial or

underlying distribution of holdings and corrective justice with

the norms governing the ex post transfer of those holdings.

Corrective justice is a matter of transactional justice in thissense. Whatever the underlying distribution of holdings may

be, we recognize legitimate and illegitimate means of

transferring them. These are separate, if related, concerns. If

agreement or gift moves resources from one person to

another, that is a legitimate form of transfer. If the result is a

more uneven or unfair overall distribution of resources, that is

a concern of distributive, not transactional justice. Similarly,

if fraud or force moves resources from one person to another,that is an illegitimate form of transfer. If the result is moreequitable from the point of view of distributive justice, that

does not mean that the benefits and costs of the fraud ought

not to not be annulled. They must be as a matter of

transactional justice. And so on.


34/45

One problem with this line of argument is that it explains the

sense in which corrective justice is a principle of justice by

drawing what may well be an artificial distinction between

transactional and distributive justice. On most plausible views

of distributive justice, it concerns the mechanisms andinstitutions of resource allocation including markets, and

non-voluntary transfer practices. In other words, the

mechanisms of transfer are part of distributive justice. So the

distinction between the transactional and the distributive may

be artificial at best.[5]

The second solution is based on a distinction between the

justice of a distribution and its legitimacy. A legitimatedistribution of resources may fall short of being a fully just

one. While it may be true that no one can have a moral duty to

repair losses when doing so merely entrenches a patently

unjust distribution of resources, it is also not true that an

individual can have a duty to repair losses only if doing so

protects a less than fully just distribution of resources.

Individuals can have duties to repair losses that support

legitimate institutions for distributing holdings, and a systemof holdings can be legitimate even if it falls short of the

demands of justice.

Whereas a legitimate distribution of resources is adequate to

confer on each individual a right against others for repair in

the event of wrongful harm to his share, the legitimacy of the

system of holdings does not confer on each individual a right

against the government to prohibit redistribution. Indeed, thegovernment always has a right, indeed one could argue that it

has a duty, to redistribute holdings if justice requires doing so.

If a distribution is not just, the state can redistribute for the

purposes of achieving justice without triggering claims to

repair by those whose interests it hinders or harms. But a


35/45

distribution that is legitimate if not fully just is adequate to

ground private remedies in order to sustain the interests

individuals have in their holdings and to secure their

expectations accordingly.

It is a further question what the standard of legitimacy is.

What must be true of a distribution of holdings beforeprotecting or securing it by coercive rectificatory practices is

permissible as a matter of justice? This is too big a topic to

address here. We can say, though, that the notion of

legitimacy I have in mind is the same as that which generally

justifies coercion e.g. in the name of the criminal law in

legitimate but not fully just states. If these conditions are notmet, we might nevertheless endorse practices of repair that

protect holdings, but not as a matter of justice. Rather doing

so might be desirable to increase security or as a step along

the way to institutions that offer a legitimate promise of

prosperity and equality, or the like. Duties of repair are always

matters of correction , but they are not matters of corrective

justice unless the conditions of legitimacy in the institutions

of resource allocation are satisfied.[6]

We come finally to one last objection to the corrective justice

account of tort law. Here the worry is that if achieving

corrective justice were the concern of tort law, then

prosecuting wrongful conduct would be the province of the

state. In fact, the state's role in torts is primarily a passive one.

Tort law gives victims an option to pursue redress. The law

does not aim to achieve justice; it merely provides amechanism for victims to pursue redress. If tort law meant to

promote justice, it would more actively pursue wrongdoers

and prosecute cases against them. Victims would be

encouraged to appear as witnesses in such prosecutions, and

because they have an interest in having the prosecutions


36/45

succeed, they would do so. But victims are the prosecutors in

torts, not witnesses for the prosecution. On this view, if we

want to understand tort law, we need to uncover the reasons

we might have for providing victims with opportunities for

pursuing the particular form of redress tort law gives.[7]

This is an interesting line of argument, and I cannot give it thecare it warrants here. I would note, however, that one

response would begin by acknowledging that at bottom tort

law provides victims with a form of redress. The particular

form of redress it provides, however, is what one would

expect as a matter of corrective justice. Beyond that, the

reason the law does not prosecute on a victim's behalf or onthe behalf of the principle of corrective justice, may have

more to do with considerations of personal autonomy and

privacy than it has to do with the underlying aims of tort law.

That is, there are constraints on political power that limit the

authority of the state to sue on behalf of an unwilling victim.

It may be that the most the state can do consistent with respect

for personal autonomy and privacy is to provide victims with

the opportunity to seek repair and to insure that warrantedclaims to repair are enforceable by the law. Lastly, we want to

distinguish between the claim that the law of torts embodies a

principle of corrective justice and the very different claim that

tort law aims to achieve or pursue corrective justice. Tort law

may have no such aims; it may have no aims at all. But it

would be a mistake to infer that tort law does not embody a

principle of corrective justice, or that it is best explained,

therefore, by the principle of corrective justice.

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Other Internet Resources

Tort Law & Unjust Enrichment, Links to relevant articlesfrom the Encyclopedia of Law and Economics, supported

by the Economic Institute/CIAV of Utrecht University

and the Department of General Jurisprudence and

History of Law, University of Ghent.

Related Entries

causation: in the law |justice: distributive | legal philosophy:

economic analysis of law | privacy

Copyright 2003 by

Jules Coleman
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