1. Introduction
Who are the legal subjects of tort law? That is, to whom does a state’s tort law apply? This question is important to answer if we want to offer a justification for exercises of state authority in the context of tort law. To determine whether the grounds on which a state claims to have authority are legitimate, we must know over whom a state claims to have authority and whether those grounds for justification persuasively apply to those legal subjects.
This is not a question that many (if any) tort theorists have addressed explicitly. But implicit in some contemporary writing about tort law theory is an assumption about how to answer this question. Certain leading scholars assume that a given state’s tort law applies to its citizens, and so a state’s own citizens are the subjects of its tort law. From this commonplace assumption flow several intuitive accounts of how tort law’s authority might be justified. If a state’s tort law applies to its citizens, then tort law’s coercive force can be justified to those citizens on the grounds that they implicitly consented to the law’s application through the democratic process, or as members of an imagined social contract between state and citizen.
Although this common picture has a certain intuitive appeal, I want to argue that it is wrong. And I want to do so in a somewhat unusual way: by appealing to private international law—and in particular, to choice of law. Choice of law rules determine when a state’s tort law is authoritative with respect to a particular dispute. These principles reveal that the legal subjects of a state’s tort law are not its citizens, nor even the members of the political community more broadly. As such, the state-citizen relation is not the basis on which authority is exercised in tort law. Instead, the subjects of tort law’s authority are persons understood in their generic or universal capacity.
Indeed, a close analysis of choice of law rules reveals a much more complex picture of authority in tort than the simple state-citizen picture posits. This picture has three dimensions. The first dimension is the potential universality of authority in tort law. As I will show, any person in the world can potentially be the subject of the tort law of any state, and the scope of tort law’s authority is not pegged to—or limited by—citizenship.
The second dimension is the normative pluralism of tort law: each state can rightfully establish the substantive content of its tort law according to its own conception of justice. So even though each state’s tort law could potentially apply to any person—and is not limited in application to a state’s own citizens—each state may still establish its own rules of tort law by the lights of its own account of justice. So individuals can readily be subject to tort law that is rooted in a foreign state’s conception of justice.
The third dimension of tort’s authority is that it is individuated. Even though any person could potentially come under the authority of any state’s law, this does not mean that every state’s tort law is, in fact, authoritative with respect to all tort law disputes. Instead, choice of law rules individuate authority and determine which state’s law has the most authoritative claim to govern each tort law dispute. This is done, for example, by applying the law of the state where the wrong took place. Crucially, however, the citizenship of the parties does not ground this individuated authority relationship. In the common law (and to a large extent beyond), citizenship plays no role in particularizing state authority in tort law. Instead, features such as the territorial location of the wrong often determine whose tort law governs.
This analysis shows that justifications for tort law’s authority grounded in the state-citizen relation are flawed, since they cannot integrate these three features and thus ignore the law’s own conception of subjecthood. If we accept that our theories of legitimate authority should track how the law itself structures relationships of authority, then a new account that moves beyond the simplistic state-citizen picture is necessary.
Here, I offer a sketch of an approach to justifying tort law’s authority that is better able to accommodate tort law’s universality, its normative pluralism, and its individuation. In so doing, I develop the beginnings of an account of tort law’s authority over persons, rather than citizens. Developing an account of tort law’s authority that accurately reflects the subjects of tort may also teach us something about the subject of tort—i.e., the substantive normative content of its primary rights and obligations. If tort law rights are not something we obtain because of our status as members of a particular political community, but rather are owed to us because of our shared status as persons, we are directed to a certain understanding of what tort law is trying to protect. Finally, this approach may also have implications for accounts of legal and political authority beyond the domain of tort law. The assumption that the subjects of legal authority are citizens is common in much of the political theory literature on authority and legitimacy. By challenging that assumption in the instance of tort law, I open up an important and broader line of critique.
The approach I take here is loosely interpretive.Footnote 1 Prevailing tort theorists purport to explain, at least roughly, the immanent structure of the law.Footnote 2 But contemporary tort theory relies on an assumption about how tort law structures relationships of authority that does not correspond with how choice of law works. We therefore need a new account of authority in tort that better fits with and justifies how the law generates and individuates those relationships. This interpretive method is common and well-developed, particularly within private law theory.Footnote 3
By contrast, the move I make here to draw from the doctrine of private international law is unorthodox within private law theory.Footnote 4 Private international law has long been neglected as a source for rethinking debates in private law theory, such as the grounds of authority in tort law. Private law’s duties have never been limited to one state in practice or in theory, and the cross-border, structural aspects of private law obligations are addressed by private international law. As such, theorists may have squandered an important source of insight into the nature of private law obligations.
However, taking an interpretive approach to private international law does present some novel challenges. Private international law rules in general, and choice of law rules in particular, are notoriously complex, and vary substantially from place to place. For example, as I shall discuss in Section 3 below, the dominant paradigm for individuating authority relationships in choice of law for tort in states such as Canada, Australia, the United Kingdom (UK), and the European Union (EU) is territorial: courts often apply the law of the place of the wrong.Footnote 5 But this generalization masks complexity within these rules, which often contain exceptions. For example, the EU does not apply the law where the wrong took place when the parties have the same residence.Footnote 6 And other jurisdictions, such as the United States, employ alternative approaches that differ, sometimes substantially, from the traditional territorial approach. These include applying the law that has “the most significant relationship to the occurrence and the parties,”Footnote 7 and using a technique called ‘interest analysis’ to identify the state with the greatest policy-based interest in regulating the dispute.Footnote 8 Therefore, it is difficult to make generalizations about choice of law rules. Yet in order to offer an interpretive theory that can also justify the law on normative grounds, some simplification to these rules is necessary. In the face of this challenge, I try to strike an appropriate balance, offering a justification for the dominant paradigm, while acknowledging the need to justify alternative approaches as well.
My analysis also does not exhaust the ways in which private international law could shed light on the structure of authority in tort law. I focus here on choice of law, but virtually identical questions could be asked in relation to the two other branches of private international law: jurisdiction, which determines when particular courts are authoritative in relation to particular tort law disputes; and the recognition and enforcement of foreign judgments, which determines when a tort law judgment from one jurisdiction is internationally authoritative. In both areas of law, citizenship likewise does not typically constitute relationships of authority; however, for simplicity’s sake, I focus here on choice of law.
I proceed in four parts. In Section 2, I offer a reconstruction of a purely domestic account of tort law which assumes that the subjects of legal authority in tort law are the citizens of the state whose law applies. In Section 3, I draw from private international law to show that this image is mistaken. In Section 4, I consider two possible objections. In Section 5, I sketch a new approach to justifying tort law’s authority, and discuss what this approach tells us about the nature of tort law’s rights and duties.
2. Tort Law for Citizens
A central question in contemporary tort law theory is how to justify tort law’s coercive force. Tort law establishes legal duties that we owe to one another and a standard of conduct with which we must comply. In so doing, it constrains the freedom of persons by prohibiting certain forms of conduct, on pain of economic sanctions and, in certain instances, injunctions, bringing the coercive force of the state to bear.
Tort law’s coerciveness raises a question of legitimate authority.Footnote 9 Why is it that the state can exercise coercive power through law to enforce tort law’s obligations, and how are we to distinguish between legitimate and illegitimate uses of state power in this context? We do not normally think it is acceptable for people to use sanctions or force to compel others to behave in a certain way. We assume people have a right to be free from coercive interference on the basis of their inherent freedom and dignity, and so we typically understand such acts of compulsion to be exercises of arbitrary power or even violence. But we also assume that the law is different—that it is sometimes appropriate and indeed legitimate for public legal authorities to wield coercive power over persons through law. How—and when—can this be so?
This question is not limited to the tort law context, and scholars have offered a range of general justifications for legal authority that cut across domains of law.Footnote 10 But leading tort law scholars have assumed that a successful theory of tort law must directly address the question of legitimate authority in a domain-specific way.Footnote 11 That is, we need an account of why it is that tort law in particular can limit the freedom of persons and why it can be enforced through state coercion.Footnote 12 Each of the major contemporary philosophical approaches to tort law have responded to this challenge, offering an account of why tort law’s obligations are authoritative and enforceable.Footnote 13
Yet as theorists of authority have pointed out, a successful account of legitimate authority must offer a justification to the particular persons against whom coercive force is exercised.Footnote 14 A justification in the ether, or to people in general, is insufficient.Footnote 15 And so in order to offer reasons of this sort for tort law, we first need to correctly identify the structure of authority in tort law. Who is the authority that generates the rules of tort law, and over whom are those rules authoritatively enforced? We know it is the state that designs tort law rules—but to whom does the law apply, and who is therefore entitled to a justification?Footnote 16
This is not a question to which tort law theorists have explicitly directed their attention. However, implicit in the writing of some contemporary tort theorists is an assumption that the subjects of tort law are the citizens of the state whose tort law applies.Footnote 17
Take, for example, John Goldberg and Ben Zipursky’s influential civil recourse theory.Footnote 18 In articulating their account, Goldberg and Zipursky sometimes describe the subjects of tort law as “citizens,” “members of a liberal democracy,” or “members of a polity.”Footnote 19 This is not simply a linguistic slip. Central to their justification for tort law’s authority is an imagined social contract between the state and the citizen in the Lockean tradition, in which citizens give up their pre-political right to private vengeance in return for a right to “civil recourse” (a right to sue tortfeasors) from the state.Footnote 20 They claim that the right to civil recourse is a political right, available to members of the political community, like the right to vote.Footnote 21 Both the right to vote and the right to civil recourse are means of empowering the democratic public, and both make it reasonable for democratic citizens who are free, equal, and rational to accept the authority of their government (and so help render that authority legitimate).Footnote 22
We can observe similar assumptions in Greg Keating’s work.Footnote 23 Keating explicitly focuses on how tort law can be justified to democratic citizens who are long-term members of the political community.Footnote 24 His “fundamental task” is “to find terms of cooperation [in tort law] that express the freedom and equality of democratic citizens.”Footnote 25 Following Rawls, he suggests that the way to do this is to imagine the tort law rules that citizens would give themselves “if they were to reach agreement under ideal conditions,” and thus to which we can imagine them consenting.Footnote 26 In adopting this approach, Keating accepts Rawls’ famous assumption that we should restrict the question of how to justify domestic legal and political institutions to the purely domestic context, concerned only with the state-citizen relationship.Footnote 27 In this way, Keating assumes that the subjects of tort law’s authority are citizens.Footnote 28
Other tort theorists who explicitly make this assumption include Steve Smith, who refers to the subjects of tort law as ‘citizens’;Footnote 29 Verónica Rodríguez-Blanco, who roots her account of tort law’s duties on the assumption that tort law applies to citizens acting within the political community;Footnote 30 Jane Stapleton, who states that tort law reflects the concerns of ‘citizens’;Footnote 31 Andrew Gold, who grounds private law in the fiduciary duty states must provide for their citizens;Footnote 32 and Nick McBride, who sometimes refers to tort law as governing ‘citizens’.Footnote 33
The assumption that these scholars make is facially plausible. Tort law is a field of domestic law. It is not a field of law regulated by treaty or custom at the supranational level, let alone by preemptive jus cogens rules.Footnote 34 As such, each state is entitled to establish its tort rules as it sees fit, according to its domestic legislative and judicial procedures. It seems plausible, then, that a state’s tort law would apply to the members of the political community that established that law.
This assumption is also understandable from a political theory perspective, in which there is a long tradition of scholars assuming that the subjects of a particular legal authority are its citizens—what Lea Brilmayer calls the “boundary assumption[] in domestic political theory.”Footnote 35 This assumption is perhaps best exemplified in contemporary political thought by Rawls, who, as mentioned, restricted the question of how to justify legal and political institutions to the purely domestic context, concerned only with the state-citizen relationship.Footnote 36
The assumption that citizens are the subjects of tort law suggests some strategies for justifying exercises of authority in the context of tort law. Take first a democratic participation story.Footnote 37 Tort law is established by the legislative and judicial organs of the state. These branches are subject to varying degrees of democratic control by the polity. In a liberal democracy, citizens are given a voice in electing their legislators, and judges are either selected by the executive or elected directly by the citizenry. This means that, at least in an attenuated way, the branches of government that establish tort law are accountable to the democratic citizenry.Footnote 38 Tort law is also roughly democratic, or accountable to the citizenry, in other ways. In certain common law jurisdictions, civil juries composed of citizens play an important role in applying tort law.Footnote 39 Likewise the substance of certain tort rules, such as the reasonable person standard and the test for whether someone has been defamed, also broadly reflect community norms.Footnote 40
If tort law is created, at least in part, through the participation of the citizenry, which is given a voice in the substance of what tort law demands, this offers at least a partial justification for the authority of tort law. Citizens can be subject to the authority of tort law because they are, at least in some sense, the authors of the law. Tort law is created and applied through a public process that takes the demands and norms of the polity into consideration. This means that, in a Rousseauvian sense, the law is one that the citizenry prescribes for itself. It is not an arbitrary, foreign imposition of power that limits the freedom of citizens; rather, citizens remain subject to their own will.
In addition to this intuitively appealing democratic picture, the citizen-as-subject assumption also suggests a justification for the authority of tort law rooted in an implied social contract between state and citizen, as presaged by the discussion of Goldberg/Zipursky and Keating, above.Footnote 41 We can think of tort law as an implied bargain between the state and its citizens, along the following Lockean or Rawlsian lines. Tort law grants the state a monopoly on the use of force in certain contexts. This requires citizens to give up some of their natural freedom to, for example, respond in kind when their bodies or their properties are injured by others. They can no longer lash out in violence to achieve private retribution. But by giving up this freedom, citizens receive numerous benefits from the state. Their bodies and property are better protected from threats posed by other private persons;Footnote 42 and citizens are protected from risks of negligent infliction of harm to which they could not readily respond.Footnote 43 And instead of being able to respond through interpersonal violence, citizens can hold others to account through the legal process.Footnote 44 Over the course of a citizen’s lifetime, this bargain with the state can be understood to have been a reasonable one, and so the citizen can be presumed to have implicitly consented to state authority in the context of tort.Footnote 45 This makes the use of the coercive apparatus of the state to enforce tort law legitimate.
3. The Structure of Authority in Tort Law
The common assumption that the legal subjects of tort law are citizens is both intuitive and plausible, and lends itself to compelling accounts of how to justify the authority of tort law. But, as I shall argue in this Section, this is not how the law constructs legal subjecthood. When we carefully examine choice of law in tort, we see that citizenship does not determine who are the legal subjects of tort law, nor does citizenship play a role in individuating particular authority relationships between state and subject in tort law. As such, grounding the authority of states to enforce tort law in the citizenship of the legal subject cannot succeed, even on a roughly interpretive account of the grounds of justification of tort law’s authority.Footnote 46
To see that tort law and choice of law do not treat citizens as subjects, nor citizenship as the grounds for legal authority, we must analyze and reconstruct the structure of authority in tort law.Footnote 47 As I will argue, the structure of authority in tort law has both a horizontal and a vertical dimension, and both show that citizenship is not part of the field’s authority structure.Footnote 48
A. Horizontal duties
Let us begin by discussing the horizontal dimension of how tort law is structured. Tort law establishes legal rights and duties that individuals have vis-à-vis other private persons. These duties in tort are bilateral—they hold between two private persons, in pairwise relation.Footnote 49 They define our mutual, interpersonal obligations to respect, inter alia, the bodily integrity and property of other private persons. These duties of mutual respect apply with equal force to both parties. In this way, tort law understands the parties to its duties as equals: both parties are under the same obligations for the same reasons, and neither party is superior to the other, or is an authority over another.Footnote 50 Their relationship is non-hierarchical, and in this sense, tort law operates on a horizontal plane—between parties who are equal in status or authority.
These horizontal obligations we have to one another under tort are not limited to our fellow citizens.Footnote 51 Instead, the duties we have in tort are duties that we owe to all persons that we encounter. You are not a defective subject of tort law if you are a non-citizen; your rights to bodily integrity and personal propertyFootnote 52 are not diminished.Footnote 53 Likewise, a putative tortfeasor cannot escape liability by arguing that the victim was a non-citizen. Rather, tort duties are owed to any people we encounter in our shared lives together, whatever their nationality. Being owed duties under tort law depends on being a person, not a particular kind of person or member of a particular political community.Footnote 54 So too with the right to sue. Except for a few problematic historical exceptions,Footnote 55 the right to sue in common law courts has never been tied to citizenship.Footnote 56
This is an important manifestation of tort law’s commitment to equality. If the obligations we had to one another were limited to our fellow citizens, it would mean that if non-citizens were tortiously injured, they would have fewer rights, thus denying the horizontal equality between persons. As such, tort does not confine or limit the duties or entitlements we have vis-à-vis one another to members of our own political community. Instead, all people we encounter are owed duties in tort, and so tort duties and rights are generated simply on the grounds that someone is a person, not on the grounds that they are a person with membership in a particular political community.
Since tort law operates on a horizontal plane between generic persons, regardless of political membership, it readily crosses the boundaries of territory and membership established by public law, and so bilateral tort relationships are not confined to the boundaries of a particular state. This can be, for example, because the two ‘poles’ of the bilateral relationship are individuals from different places. Private persons who are citizens of one state regularly interact with private persons who are citizens of another state in ways that can either respect or violate the rights protected by tort law. A citizen of Canada, who is resident in Ontario,Footnote 57 could travel to the United States, and could tortiously interfere with the bodily integrity or property of a US citizen resident in New York.Footnote 58 A Canadian company could potentially infringe on the rights of workers in Bangladesh.Footnote 59 A resident of Israel could interfere with the reputation of an Ontarian by posting defamatory material online.Footnote 60 In this way, tort law’s relationships do not necessarily map onto traditional political boundaries. Our tort rights are regularly respected and violated by those who are not our fellow citizens, and thus can be transnational—factually connected to multiple political jurisdictions—in nature. Likewise, tort disputes can be transnational even if both parties to a private law dispute are from the same political jurisdiction. For example, two Ontarians could drive together to New York, where the driver could tortiously injure the passenger on a New York highway,Footnote 61 or in the inverse scenario, two New Yorkers could drive to Ontario, where the driver can tortiously injure the passenger on an Ontario highway.Footnote 62
In this way, citizenship does not limit the duties we owe to one another on a horizontal plane. Tort is a legal relationship between persons understood in their private or generic capacity, not their public capacity. The rights and duties we have towards other private persons are not mediated or limited by citizenship: we owe tort duties to all persons regardless of citizenship; we have the right to sue regardless of citizenship. Our pairwise private relations with other persons thus cross political boundaries, and indeed, depending on the facts, pairwise tort relationships can occur between persons of any nationality from anywhere in the world. In this sense, tort law’s duties are concerned with universal relationships between generic persons.
B. Vertical authority
Yet even though tort law relationships cut across traditional political boundaries, the law of a particular state is still essential, as a doctrinal matter, to constituting each of these relationships.Footnote 63 The law does not understand us as having tort law duties in the abstract; it does not understand tort law duties as purely moral, untethered to the positive law of any state.Footnote 64 Rather, in order for particular persons to have an obligation in tort law, that obligation has to be instantiated in the positive law of a state.Footnote 65 So in each pairwise relationship between persons, the duties owed to one another with respect to a particular type of wrong are constituted by the law of a particular state.
In this way, there is also a vertical dimension to tort law: the vertical relationship of authority between a state’s law and a pairwise relation between parties with respect to a particular type of wrong. Combining the two dimensions, tort law can be imagined as triangular: tort law obligations exist horizontally between two private persons, as mediated vertically by the positive law of a particular state.
But this vertical dimension presents its own challenge. In situations where the horizontal dimension of the dispute is factually connected to multiple political jurisdictions, how do we decide which state’s law is vertically authoritative?Footnote 66 And so, over what range of persons and relationships is each state’s tort law authoritative?Footnote 67
This problem of vertical authority—deciding which state’s law is authoritative with respect to a particular tort dispute—is necessary to confront because of the existence of multiple states with varied content to their tort law. The world today is composed of many political units. And as a doctrinal matter, each state can develop its own conceptions of tort law according to its own domestic legal processes, community norms, and theories of justice. For this reason, the positive law of states varies significantly from place to place. Tort law is thus a normatively pluralist field, permitting significant variation in the substance of its rules across the globe. So for each private relationship, we need to know which state’s tort law applies, because the rights and duties the parties have towards one another, and the outcome of any legal dispute, could readily turn on the different obligations imposed by different systems of tort law. As Justice LaForest, of the Supreme Court of Canada, writes:
Legal systems and rules are a reflection and expression of the fundamental values of a society, so to respect diversity of societies it is important to respect differences in legal systems. But if this is to work in our era where numerous transactions and interactions spill over the borders defining legal communities in our decentralized world legal order, there must also be a workable method of coordinating this diversity.Footnote 68
This problem of competing sources of authority and normative pluralism is addressed by the area of private international law known as ‘choice of law’. It is thus choice of law that can tell us how tort law ultimately individuates particular relationships of authority.
C. The grounds of authority in tort law
One possible way out of the problem of vertical authority in transnational torts would be to simply deny the issue, by having every court apply the law of the state in which it is sitting. But remarkably, this is not the assumption that choice of law doctrine makes. Indeed, a foundational plank of choice of law doctrine is that a court hearing a tort law dispute will not assume that its own tort law is the most authoritative;Footnote 69 the fact that a court can take personal jurisdiction over the parties to a dispute does not determine which substantive legal rules that court will apply. Unlike in public law contexts, courts hearing private law matters regularly apply foreign private law—the law of some other state—to decide a dispute. So a particular state’s private law can be applied and can authoritatively decide private law matters in disputes that take place far beyond its borders.
Indeed, each state’s law can potentially be applied by any court that addresses tort disputes, anywhere in the world. This is because the choice of law process does not rule out the law of any state. It assumes that any sovereign state has an equal right, at least potentially, to have its law apply. It does not examine the content of the state’s legal regime, or ask whether it is a democracy or an autocracy, when considering whether it has a claim to have its law apply in a particular context. Thus, when a court asks what law applies to a particular transnational tort dispute that is in front of them, they are (at least conceivably) considering the entire universe of possible legal orders. In this way, every state’s legal order is potentially authoritative with respect to every particular dispute—and so to every legal subject.
If every state’s law is potentially authoritative with respect to every tort law dispute, how, then, are particular relationships of authority between one state’s law and a particular pairwise private relationship in tort law individuated? As I noted above in the Introduction, the answer is complex and varies (sometimes significantly) between jurisdictions. In many states, such as the UK, Canada, Australia, and the EU, the dominant paradigm is territorial, in which courts apply the law of the place of the legal wrong—the place where the tort occurred and one party became liable to another party to pay tortious damages.Footnote 70 So under this approach, the particular law that is authoritative in a tort law dispute is usually the law of the place of tort, or what is known as the lex loci delicti. In the case of two Ontarians who drive to New York and are in a car accident in which the passenger is injured due to driver negligence, a Canadian court would hold that New York state tort law would apply to define the rights and duties of the parties to one another.Footnote 71 Or, in the case of a Canadian company that is alleged to have violated the rights of workers in Bangladesh, the law of Bangladesh would apply to define the rights and duties of the parties vis-à-vis one another.Footnote 72
In addition to the territorial approach, states have also adopted other ways of individuating obligations in tort law. These include the ‘dual domicile’ or ‘dual residence’ exception, in which the law of the place of the parties’ domicile applies, when they have the same domicile or residence;Footnote 73 the ‘most significant relationship’ approach, in which courts analyze the weight of various connections to jurisdictions;Footnote 74 and interest analysis, in which courts analyze which state has the greatest interest in regulating the dispute and so having their law applied.Footnote 75
Yet despite this doctrinal variation across states in the way in which relationships of authority in tort law are individuated, they share a crucial feature: They generally do not use the citizenship of the parties to the dispute to individuate the authority relationship.Footnote 76 The dominant territorial approach looks at the location of the wrong to decide which state’s law applies—not their public membership or citizenship. The dual domicile/residence rule looks at the domicile or residence of the parties—a private status that is unrelated to their citizenship.Footnote 77 The most significant relationship approach mentions nationality in passing on a long list of other factors, but does not centre citizenship as a ground for authority in tort law.Footnote 78 Interest analysis generally looks at domicile, not citizenship, in its analysis of the interest of states. So under all of these approaches, becoming a subject of a particular state’s tort law does not turn on one’s status as a citizen, and so legal subjecthood in tort law is divorced from citizenship.
Likewise, a connection to a particular state that falls short of citizenship is also not presumed by tort law. It is not necessary to have a long-term connection to a state or any other association or means of belonging to the community to be subject to the authority of a state’s tort law. Indeed, one does not even have to have visited a state or been physically present there to have wronged someone there. For example, under the territorial approach, a glancing connection to a particular territory is perfectly sufficient to generate authority of that state’s tort law over an individual. In one famous American case, a worker who negligently coupled a train in one state that subsequently decoupled in another state came under the authority of the second state—despite never having set foot there.Footnote 79 Likewise, a tort victim who is injured in a place they are just visiting, even very briefly, can be subject to that state’s authority.Footnote 80 And plaintiffs can also be subject to the authority of a particular state’s tort law even if they have never been there. For example, if a plaintiff’s chattels are stolen from their home state and taken to a second state without their consent and then sold, the plaintiff is now subject to the authority of that second state’s law in an action for conversion against a third-party purchaser.Footnote 81
From this discussion, we can now identify the subjects of each state’s tort law. The subjects of a state’s tort law are not the citizens of that state, and tort law does not predicate authority on the public law of membership or on a political relationship with a state. Instead, the subjects of tort law are generic persons, and any state’s law could potentially be authoritative with respect to any pairwise set of persons. In this way, each state’s authority is potentially universal. However, because there are many states in the world today, and each has a right to establish its own account of tort law’s obligations, we need a way of individuating authority—of determining which state’s law applies to which pairwise set of persons. As we have seen, these discrete relationships of authority are particularized through territory, or one of the other approaches to choice of law in tort. But these means of individuating authority relationships still reinforce the generic and universal authority of each state’s law, because they do not limit a state’s authority on grounds of personal membership (i.e., citizenship) and because each state’s tort law can in practice be authoritative vis-à-vis any person in the world, depending on the structure of the facts at issue. For this reason, we can rightfully understand tort law’s authority as potentially universal, over all persons considered in their generic capacity. As such, the legal subjects of tort law are persons, not citizens.
Putting this analysis together, we can draw out three features of the structure of authority in tort law. First, tort law adopts a conception of the legal subject as a generic person, without attention to citizenship-based membership in any particular polity, and assumes that every state’s law could be potentially authoritative with respect to all persons (universalism). Second, it permits each state to determine the content of its own tort law, as it sees fit and according to its domestic norms and procedures (normative pluralism).Footnote 82 Third, given these substantive differences in the positive law of states, which require us to choose among competing sources of legal authority, it instantiates particular relationships of authority between a state and a pairwise tort law relationship, through methods like determining the place where the wrong occurred (individuation). But one’s personal status as a citizen of a state does not figure at any stage of this inquiry, and is not central to any method of individuation, and so citizenship does not determine who the subjects of a particular state’s law are.
4. Attempts to Modify Citizenship-Based Approaches
This analysis calls into question theories of tort law that both claim to be interpretive and to justify tort law on the basis of a relationship between a state and its citizens. As a doctrinal matter, citizenship or public membership in a political community generally plays no role in determining when a particular state’s law is authoritative with respect to a particular tort dispute or in justifying the law’s application.Footnote 83 This means that theories of authority that ground tort law’s authority in the state-citizen relationship, such as the democratic or social contractarian accounts outlined above, do not appear to offer a compelling justification.
Yet perhaps we need not take this analysis as fatal to democratic or social contractarian theories. Surely, one might argue, we can modify these compelling accounts to generate authority over non-citizens—either by extending those accounts to cover non-citizens, or by developing a separate and distinct account to cover non-citizens.Footnote 84
A. Extending justifications to non-citizens
The first move we might make would be to extend the intuitive democratic and social contractarian pictures to non-citizens who are subjects of a state’s tort law. Let us consider how that might work, starting with the democratic account. Right off the bat, we would have to concede that non-citizens are not authors of a state’s tort law, since they do not participate in the electoral process, nor can they sit on juries. There is no direct sense in which we can say that they are the authors of the law that applies to them.
But perhaps this democratic argument could be modified to account for non-citizens. Perhaps a successful democratic process can (and perhaps even should) take the interests of non-citizens into account.Footnote 85 A legitimate democracy might consider how its laws might apply to non-citizens, and seek to ensure that the interests or rights of those non-citizens be protected and that they be treated fairly, as a substantive matter, by a state’s tort law. If a state’s tort law does this, we might think that that law can apply legitimately to non-citizens.
This argument is promising, and in fact I will endorse a version of this claim below, when offering a justification for tort law’s authority over all persons. But notice this argument is different from the democratic procedure argument articulated above. The fact that the substance of the law successfully protects the interests or rights of persons does not mean that it is justified on democratic grounds, in which a person’s democratic participation or authorship of the law is what gives the law its normative justification and its authority over them. And so, when we switch from democratic procedure to the protection of interests or rights, we are no longer making the same kind of argument for tort law’s legitimacy. There may be a potentially successful argument here, but it is not a democratic one, at least in the traditional, procedural sense.Footnote 86
A more promising route may be to modify the social contractarian approach. Recall that, on this view, tort law’s authority is justified as the result of an imagined long-term bargain between states and citizens. Citizens give up certain rights (e.g., to private vengeance) in exchange for security and the right to sue in tort. Over the course of an individual’s lifetime, this is a fair bargain, and thus law’s authority is legitimate.
We could try to imagine extending this bargain to non-citizens. However, it is unclear why non-citizens should accept. Non-citizens (and especially non-residents) do not obtain the benefits of giving up their right to private vengeance, because they might not live in the state long-term. Indeed, since even a glancing connection to a state can be sufficient to bring someone under its tort law authority, a person can be subject to a state’s tort law without ever having received any benefit from that state at all—be it security, the right to sue, or otherwise. To put the point another way, benefits from a particular state’s tort law do not necessarily accrue to the law’s subjects over the course of their lives, because tort law is totally indifferent to the existence of a long-term relationship between the state exercising authority and the legal subjects of tort law. The bargain that could obtain between state and citizen therefore does not seem transferable to all of the law’s subjects.
However, perhaps we could include non-citizens in a social contract approach by arguing that non-citizens have actually consented to the authority of a state’s tort law. We can analyze whether this argument is successful in the context of the dominant territorial approach, but of course a comprehensive analysis would have to explore other approaches to choice of law in tort as well (such as the most significant relationship and interest analysis approaches discussed above). As we have learned, one important approach for individuating state authority in the context of tort law is the territorial approach, in which a state’s law is authoritative with respect to a particular pairwise relationship if the tort took place on the state’s territory. Arguably the state is authoritative in this context because by undertaking voluntary acts on a particular territory, the parties consented to that state’s law applying to them. The parties were on notice that if they behaved a certain way in relation to the territory of a particular state, that state would be granted the right to exercise its legal authority over them. This argument applies just as easily to visitors as it does to citizens. “When in Rome,” it is reasonable to expect one to comply with the laws of Rome, and for Roman law to be authoritative over the individual in the case of any ensuing tort dispute.
A version of this argument has been somewhat popular with conflicts scholars,Footnote 87 and judges have argued that ‘party expectations’ can help legitimate the territorial approach to the authority of tort law over visitors.Footnote 88 Indeed, there is some intuitive appeal to the idea that a party should be on notice of the law of the land if they visit another state.
Yet there are both doctrinal and theoretical problems with this modification to the contractarian account. Let us start on the doctrinal side. There are innumerable cases where an individual’s connection with the territory of a state is too attenuated to claim that they ever consented to its authority over them, and yet the law of that state is nonetheless held to govern them in tort. Take, for example, airplane crashes. When there is an airplane crash, the law of the place of the crash has frequently been applied to govern any ensuing tort claims.Footnote 89 However, for obvious reasons, the location of an airplane crash is often in a state that passengers did not choose to enter, let alone consent to be governed by. Indeed, courts have held that the law of the place of the crash applies even if that place was neither the origin nor destination of the flight.Footnote 90 In such an instance it is difficult to say that the passengers consented to having the law of the place of the crash apply to them.
We can also think of other examples where the parties did not consent to being physically present on the territory of a state, and yet the law of that state applies to them. Recall the case of the stolen chattels discussed above. Or think of a crossborder kidnapping. If an individual is kidnapped in one jurisdiction and transported elsewhere, where he is then assaulted, the false imprisonment that took place in the first jurisdiction would be governed by the first jurisdiction and the assault would be governed by the second jurisdiction.Footnote 91 But there is no way we could say that the plaintiff consented to be governed by the law of the second jurisdiction, since he was brought there against his will.
There may also be theoretical or conceptual problems with the claim that presence is sufficient to establish consent. Let us assume that a party chooses voluntarily to be present on the territory of a particular state. It is unclear, however, why this choice amounts to meaningful consent to the authority of the law. It may not have occurred to me that being present on a state’s territory means that I am granting that state authority over me, and the choice to be present somewhere is clearly not equivalent to the choice to be subjected to a particular authority. If we want to establish actual consent, something more is necessary—perhaps a transaction between the legal authority and the legal subject that would ensure the presence of consent.
Finally, even if we could identify the existence of actual consent in each and every choice of law case, we can also question whether actual consent is sufficient to justify the authority of a particular state’s tort law. The fact that I consent to be enslaved, murdered, or maimed does not mean that another person is permitted to enslave, murder, or maim me.Footnote 92 Conversely, the absence of actual consent does not necessarily mean that authority cannot be legitimate. Think, for example, of a person in a political minority within a society who always votes for the opposition party; or a parent’s right to make authoritative decisions on behalf of their child even though the child did not consent to be born and has no choice in the matter of the parent’s authority. For these reasons, it is unclear whether actual consent can suffice to justify the authority of a particular state’s tort law, and thus whether this modification to the social contract approach can succeed.
B. A different justification for non-citizens
A second possible move is to concede that citizenship-based accounts do not justify tort’s authority to non-citizens. However, this does not mean that they are not helpful, because at least they get us part of the way there. They can successfully justify authority to citizens, and then we can develop a separate and distinct theory for non-citizens. That is, they get us a theory of authority for the ‘regular’ case—when a state’s law is applying to its own citizens—and then we just need a different theory for the more marginal cases where a state’s law applies to non-citizens. So my analysis in Section 3 above does not entirely denude these citizenship-based accounts of their normative force. There is no need to reject them entirely, when we simply need to add a codicil or an amendment to take care of the more unusual case.
But even if a different justification for non-citizens could be developed, this bifurcated approach would still be inconsistent with tort law’s structure. A bifurcated approach relies on the idea that a state’s tort law has authority in the core case simply on the grounds of the law’s subjects being citizens. However, as I have shown, the common law does not offer this kind of plenary authority. The authority of a state’s tort law is not generated by an individual’s public citizenship. There is no default applicability of a state’s law to its public members. Instead, there is an analysis of (for example) the location of the wrong, rather than the public political membership of the parties.
The bifurcated approach is also problematic because many approaches to choice of law, such as the dominant territorial approach, do not offer a justification for its authority on a person-by-person (or more accurately, a party-by-party) basis.Footnote 93 According to the territorial theory, when determining what law applies to persons in a tort law dispute, the law does not give one set of reasons for why a particular state’s tort law applies to one party and a different set of reasons to the other party. Instead, the law examines the parties’ relationship and the nature of the wrong. In this way, the law’s understanding of its authoritativeness is not divided by person but is instead connected to the transactional wrong that unites the parties, and its territorial location.Footnote 94
5. Tort Law for Persons
In addition to calling into question citizenship-based accounts of authority in tort law, my analysis of its three distinctive features (universality, normative pluralism, and individuation) also generates a new challenge: We must now offer an account of tort law’s authority that can both account for and integrate these three features. At first blush, this seems difficult. For example, there appears to be an important tension between tort law’s universalism, on the one hand, and its particularity and individuation on the other. How can each state’s tort law be both potentially legitimately applicable to every person in the world and simultaneously established by the particular legal processes of each state, according to its own conception of justice in tort law, and individuated by (for example) acts on the state’s territory?
In this final Section, I want to start to develop an account of authority in tort law that accounts for these three features. I will not offer a complete account of how to integrate these features here, nor will I fully defend all the premises that I rely on. However, I want to offer a rough-and-ready approach as to how it might be possible to integrate the three features of how authority is structured and mediated in tort law, and thus how we might offer an account of tort law’s authority over persons, not citizens.
For simplicity’s sake, this account will only speak to the dominant, territorial paradigm that individuates authority in tort law by using the law of the place of the wrong. I concede readily that if we accept a different approach to choice of law in tort, this will not offer a compelling justification; nor will it speak to exceptions in certain territorial accounts, such as the dual domicile/residence exception. My claims are therefore somewhat limited. But the hope is that I can begin to offer a justification that can speak to how relationships of authority are constituted in tort law, at least under one of the most popular doctrinal approaches.
A. The universal problem of interpersonal domination
To begin to develop an account of the authority of tort law for persons, we can return to the premise that we started with in Section 2: the idea that each person has an inherent right to control their own body and that no one else has a right to do so, at least without justification. Scholars have cashed out this idea in a variety of ways, such as the inherent freedom, dignity, independence, or non-domination of persons,Footnote 95 but the basic idea is that each person has a right to be in charge of themselves. And this is a right that each person has equally—we do not think that some people are entitled to ‘more’ freedom than others.Footnote 96
Political theorists typically worry about threats to the equal freedom of persons from the state—we worry that persons will be dominated by the state or subjected to its arbitrary power.Footnote 97 However, as numerous scholars have highlighted, other private persons also pose a threat of domination.Footnote 98 Private persons can readily interfere with our equal freedom through the use of force or coercion, and can thus compromise our ability to be in charge of ourselves. In addition to violating the freedom of persons, the threat or use of force from other private persons is a violation of the fundamental equality of persons. In such contexts one person has arrogated themself the power to make decisions about how things should go for another person, and wrongfully assumed that they were in charge of that other person.
This potential threat of interpersonal domination comes from all other private persons. It is not just citizens or members of our own political communities who can potentially violate our equal freedom or independence. Any private person (and indeed, any legal person, including corporate actors) with whom we interact can pose this threat.Footnote 99 In this way, the problem of interpersonal domination is a universal or global problem, one that potentially inheres in any of the billions of pairwise relations of private persons around the world.
The threat of interpersonal domination therefore transcends political boundaries. Even if there exist territorial states with authority over a particular part of the earth’s surface, this problem does not map onto those boundaries. It also transcends citizenship. The threat that someone poses to me as a private person is not related to their citizenship, but merely to their status as a person who could violate my freedom and our equality by deciding how things should go for me through threat or use of force. So the threat of interpersonal domination is universal and divorced both from territorial states and persons’ public membership in those states.
B. The solution: universal potential authority in tort
How are we to solve the problem of interpersonal domination? One solution might be to establish rules of tort law that can carve up our respective domains of freedom, in which I have the right to decide how things go for me in my domain, and you have a right to decide how things go for you in your domain. And if you interfere with my domain, you must make good the deficiency (i.e., you must repair the violation) through tort law’s damages.
But creating tort rules is not a task that any of us could achieve alone in our pairwise private relationships. Why? Because the notion of equal freedom—or independence, or non-domination—is extremely abstract, and it is inevitable that there will be disputes about where the boundaries of our respective domains are. In the inevitable case of such a dispute, who between the two of us can rightfully decide where the boundaries are? If the answer is that either one of us gets to set the rule, then this returns us to the problematic domination or unilateralism or inequality that the tort rules are meant to guard against: one person is still claiming to be in charge of the other in our pairwise private relations.
So what is the solution to this problem of unilateralism? To set out, interpret, and enforce tort rules that define the scope of our respective domains, we need an independent public authority that is authorized to act on behalf of both of us and yet is not partial to either of us. We might think that a state could potentially play this role. Yet what would it mean, in this context, for the state to be authorized by both of us and yet not partial to either of us? And shouldn’t we continue to worry that the state itself can be an impermissible form of unilateralism or domination?
Here the concept of non-domination can come in to justify state authority. Our concern with an entity like the state having the power to use coercive force in relation to persons is that the entity will violate the equal freedom or independence of persons. Yet without tort law, our freedom or independence is always at the mercy of other private parties.Footnote 100 If the state can protect us from the threat of interpersonal domination by establishing and enforcing appropriate and equal domains of freedom for each person, then that authority does not violate our freedom, it vindicates it. The use of a state’s power to enforce tort law does not permit interpersonal domination but instead ensures that neither of us is in charge of the other. The authority of the state to use coercive force can be justified to maintain these domains, because the initial concern about coercion—that it violates the freedom of persons—does not apply in this context, since state authority is the necessary means of protecting that freedom for each of us.
But remember that the problem of interpersonal domination is universal. The other persons who could dominate us, or whom we could dominate, could be from anywhere in the world, and they could be public members of any state. To be authoritative in relation to any particular person, tort law must be authoritative in relation to all persons, because tort is a pairwise problem and any person could be in a pairwise relationship with any other person. So, if a state’s law is to be authoritative in tort law with respect to any set of persons, it must be at least potentially authoritative with respect to every possible pairwise relation between persons. This means that each state’s tort law must be authorized by and justified to, again at least potentially, all persons. In this sense, tort law’s authority must be potentially universal.Footnote 101
C. Positivity and pluralism
Part of solving the problem of interpersonal domination requires tort law to have another feature: that it be posited by public authorities. There are several reasons tort law must be posited to be authoritative. It must be public to be respected by the persons to whom it applies. It must be posited because, as mentioned above, notions of equal freedom, or independence, or non-domination, are very abstract, and so to define our respective domains of freedom in concrete terms, they must be made concrete through legislation or common law case law. There must be a way for tort law to be interpreted in contexts of disputes about the meaning of these public, established rules. And there must be a way for it to be enforced in contexts of violation. Without these features of positive law, tort law could not do its job of establishing domains of freedom of persons that allow us to escape the threat of interpersonal domination, and we would be back to having one person deciding how things should go for another.
In our current world, public international law and supranational actors do not claim the power to determine the boundaries of interpersonal freedom or adjudicate interpersonal claims of domination.Footnote 102 Rather, the power to posit tort law is held by individual states. And states are permitted to instantiate the positive norms of tort law as they see fit, with local inflection and through local processes. As I put it above, tort law is pluralist in its positive instantiation, and so varies substantially from place to place, according to different conceptions of justice.
This positive pluralism initially seems to be in tension with tort law’s universality. How can law that is made according to the processes of one state, in a way that reflects local norms and concerns, also be potentially authoritative vis-à-vis all private persons?
The way through this tension is to return to the problem of interpersonal domination. Tort law is authoritative when it solves the problem of interpersonal domination by constituting the equal freedom of persons. In order to do this, tort law must be posited. It is perfectly fine, however, for tort law to be instantiated in different ways in different places, because it can still (through its positive character) solve the problem of interpersonal domination. No person can complain that tort law varies from place to place if it still solves this issue.
However, there are outer limits on state authority to posit tort law that flow from this authorization. If the primary and secondary duties of tort deny the equal freedom of persons, then they are not authoritative. In such an instance, they cannot have been authorized with respect to all persons, because they were not made in such a way that respects the equal freedom of all persons. For example, tort law cannot discriminate on the basis of nationality, gender, or race; such laws would fail to be authoritative. Indeed, as I have argued elsewhere, they would fail to be law at all.Footnote 103
This may seem a strange idea for the tort theorist. How can we understand there to be substantive limits on what counts as tort law?Footnote 104 For a private international lawyer, however, this is not a strange idea. The doctrine of public policy in choice of law places outer limits on what can be recognized as tort law by other states. If the substance of the law violates these limits, it cannot be applied “as a law at all.”Footnote 105 And as I have previously argued, the common law tradition accepts that the outer boundaries of what can count as tort law are laws that violate the equal freedom of persons.Footnote 106 So the positive law incorporates quite readily a limit to the normative pluralism of transnational tort law. This also means that while contemporary tort theorists are right to stress that community norms can be relevant to how tort law’s rights and duties are instantiated,Footnote 107 there remains an outer limit on the content of those norms, imposed by its universal character.
D. Individuating authority
Thus far we have discussed how law is made positive by the particular legal orders of states but is potentially universally authoritative. One question remains: How are specific authority relationships mediated, in the context of particular pairwise interpersonal relationships? The answer, as discussed above, is often (though of course not always) through territory. But how can this method of mediating particular authority relationships in tort law be legitimate from the perspective of the universal legal subject?
In the political and legal theory literature, there is a fairly extensive discussion as to why it may be legitimate for political authority to be divided among territorial states.Footnote 108 But little discussed is the problem faced here, which is why it is legitimate from the perspective of all private persons to have their tort law rights and duties mediated by the territorial location of the wrong.
Much is needed to fully justify a territorial account of choice of law; this has been the central preoccupation of the field of choice of law for more than a century. But here I want to suggest that from the perspective of tort law, the mediation of authority through territory is generated by the conception of equal freedom or non-domination that underlies the other aspects of how its authority is structured. Choosing territory to mediate authority uses a feature of a tort law dispute that is applicable to both parties—not in the sense that both parties are or ever were on the territory of a particular place, but in the sense that it is a feature of a change in the rights of the parties that is entirely neutral between the parties. The territorial place of the wrong is not something that applies only to one party, or that turns on a characteristic of either of the parties. Rather, it applies to both parties in their pairwise relation. Territory is, in a sense, a characteristic of the transactional wrong, rather than a characteristic of the parties. In this way, using territory to mediate authority in tort law respects the fundamental equality of persons, and so is a continuation of the norm of preventing interpersonal domination that animates the other elements of authority in the field.Footnote 109
E. The subject of tort law
This discussion of how to justify tort law’s authority may also have implications for how we think about the subject of tort law—its underlying normative structure and justification, and its primary and remedial rights and duties. To the extent we accept what I have suggested here, there are several features of tort law that we can draw out of this analysis.
First, on the view I articulate here, tort law is an attempt to solve a problem of potential interpersonal domination. If this is true, we now know something about the field’s primary obligations: They should be those that articulate domains of freedom for persons that solve this problem. Second, I have also argued that tort law must be posited to be authoritative, and in this sense, have taken a position on the relationship between law and morality (although it is unclear whether anyone has actually ever denied that law must be posited to be authoritative, and thus this may be the only available position).Footnote 110 That is, tort law’s duties may be normatively grounded, but they must be instantiated by the rigours of positive law to be enforceable against persons. Third, and relatedly, tort law can be rendered positive by the legal processes of different communities, according to the norms and customs of those communities and their different conceptions of justice, and thus can vary from place to place. Fourth, there are substantive limits on what tort law can legitimately enforce: if a particular tort law does not actually solve the problem of interpersonal domination by protecting the equal freedom or independence or non-domination of persons, that law is not authoritative. Tort law must not discriminate, for example, between members of different political communities in protecting and constituting the freedom of persons. It must always be justified to all persons.
6. Conclusion
One might assume that the subjects of authority in tort law are the citizens of the state whose tort law applies. But as choice of law doctrine shows, the subject of tort law is the generic person, and each state’s tort law is potentially authoritative vis-à-vis any person in the world. Democratic or social contractarian theories of tort law’s authority, rooted as they are in the state-citizen relationship, cannot easily be adapted to account for this.
This opens up a new puzzle: We must explain three structural features of how tort law actually mediates authority to the generic legal subject—its universality, its pluralism, and its individuation. Here, I have developed an approach that may be able to integrate these three features (at least on the territorial approach), and so justify tort law’s authority towards persons, not citizens. And I have also offered some suggestions as to how this analysis may help us better understand not just the subjects of tort law but also the subject of tort law.
I have developed my analysis here in the context of tort law. But this critique of theories of authority that rely on the state-citizen relationship may be more broadly applicable. As I have argued elsewhere, it is very common for theorists to justify law’s authority using citizenship.Footnote 111 But the structure of many domains of law—including other areas of private law, criminal law, and even some aspects of constitutional law—does not ground authority in citizenship.Footnote 112 Instead, these other domains often also rely on connections to factors unrelated to citizenship, such as the territorial location of a criminal wrong or a constitutional rights violation. For this reason, we may need to rethink our accounts of law’s authority in these areas of law as well.
Acknowledgments
Thanks to Roxana Banu, Chris Essert, Andrew Gold, Greg Keating, Ryan Liss, Jen Nadler, Manish Oza, Arthur Ripstein, Rob Stevens, Zoë Sinel, Jacob Weinrib, Ben Zipursky, and the attendees of the Canadian Private Law Theory Workshop, the North American Workshop on Private Law Theory at UCLA, the Junior International Law Scholar’s Association Workshop, Edinburgh’s Legal Theory Workshop, Oxford’s Obligations Discussion Group, and Oxford’s Conflict of Laws Discussion Group for discussion and comments.
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