Philosophy of Tort Law: Between the Esoteric and the Banal
Benjamin C. Zipursky
Fordham University School of Law
BLACKWELL GUIDE TO PHILOSOPHY OF LAW AND LEGAL THEORY, Martin Golding, William Edmundson, eds., Blackwell, 2004
The string of words, 'Philosophy of tort law' may seem like a random conjunction of academic topic nouns selected from columns in a word game. If the phrase has a comical ring, it is because tort law is among the most practical and least high-falutin' areas of law. Tort law deals with car accidents, medical malpractice, and defective lawn mowers, matters seemingly far from the celestial concerns of the philosopher. And so, like the lobster ice cream sold in a sea-faring tourist town, the existence of philosophy of tort law as a subject may seem to be proof that people will swallow just about anything that can be served up. This essay explains why, notwithstanding its uneasy seat between the esoteric and the banal, the philosophy of tort law is an important and genuine subject. The subject is important at three levels: the level of common law doctrinal and policy debate, the level of jurisprudence and legal theory, and the level at which jurisprudence contributes to moral and political philosophy more broadly. Probing the work of Epstein, Weinrib, Coleman, Fletcher, Perry, Ripstein, Keating, Goldberg and others, this essay sketches key contributions in all of these areas. It begins by arguing that, in connection with several live issues of tort law and policy, courts themselves reached difficult theoretical junctures within the past thirty years. These theoretical dilemmas quite naturally presented the legal academy with genuinely philosophical questions about the relation of fault to responsibility, and more generally about causation, duty, and several other highly contested concepts that virtually shout out for philosophical analysis. Second, it argues that certain fundamental debates within jurisprudence and legal theory have been most seriously developed within the philosophy of tort law: most particularly, the debate between utilitarians and deontologists on the nature of the normative framework embodied by private law, and the debate between instrumentalists and conceptualists on how best to interpret legal concepts. Third, it argues that philosophy of tort law has contributed substantially to two important aspects of moral and political philosophy more broadly: by enriching and exemplifying what it is crudely referred to as the 'contextuality' of moral reasoning, and by developing a notion of justice that is sophisticated, but distinct from distributive justice.
Number of Pages in PDF File: 18Accepted Paper Series
Date posted: June 7, 2004
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