How Tort Law Empowers
Ori J. Herstein
Faculty of Law, Hebrew University of Jerusalem; King's College London – The Dickson Poon School of Law
January 4, 2014
University of Toronto Law Journal, Vol. 64:4, (2014 Forthcoming)
King's College London Law School Research Paper No. 2014-7
The following realization has begun to dominate contemporary tort theory: in order to understand tort law, theorists must also focus on the legal power that tort law vests in tort victims to pursue a remedy, not only on the implications of holding tortfeasors liable for such a remedy. This insight has lead some of the leading theorists of tort law – often writing under the banner of ‘civil recourse theory’ – to suggest that tort law empowers tort victims to pursue and even to obtain redress from tortfeasors. This view has even been expanded to describe private law in general. Yet, close scrutiny reveals that tort law mostly does not vest in tort victims a legal power over the rights of tortfeasors. The same is most likely true for private law more broadly. For the sake of both descriptive accuracy and of realizing its prescriptive potential, civil recourse theory is best amended to view the legal rights and powers of tort victims, as well as the realities of civil litigation, more soberly, and with more conceptual accuracy. This article endorses and grounds the more modest and I think orthodox view on how tort law and private law more broadly empower victims of civil wrongs.
Number of Pages in PDF File: 35
Date posted: January 6, 2014 ; Last revised: April 15, 2015
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