Introduction
Published online by Cambridge University Press: 05 June 2012
Summary
Why tort? Worse yet, why philosophy of tort? The reason here is certainly not to achieve an elegant, theoretical model or to transform tort as an entire area into a coherent and consistent whole. In fact, it is not clear how either of these understandings could be accomplished, as it is far from certain that the disparate matters we call “tort” fall into a single, discrete category. They are much more, to use Wittgenstein's famous metaphor, like a group of individuals sharing family resemblances, with remote cousins looking quite different than siblings. Securities fraud is not very much like an auto accident, but an accounting malpractice matter might share a number of important features with each. In any case, from antitrust to civil rights cases, from toxic cleanup to defamation, from defective products to converted goods, there are enough features in common – imposed duties, private remedies, compensatory damages, proximate cause requirements, defenses of contributing or assuming or misusing fault, jury findings largely final and related concepts of intentionality – to be able to speak coherently about tort law as a field.
The idea of using philosophy to analyze law, particularly tort law, is one too easily reflexively protested. Such a protest would be misguided for two reasons. First, law is a contingent social activity, with few necessary constraints or required structures. Put simply, it can always be otherwise than it is.
- Type
- Chapter
- Information
- Tort Wars , pp. 1 - 8Publisher: Cambridge University PressPrint publication year: 2008