Justifications and Excuses in the Economic Analysis of Tort Law

ECONOMIC TORTS, Sabiha Khanum, P., eds., p. 22-57, Hyderabad: The Icfai University Press 2009

RILE Working Paper No. 2008/03

24 Pages Posted: 20 Mar 2008 Last revised: 2 May 2013

See all articles by Louis T. Visscher

Louis T. Visscher

Erasmus University Rotterdam (EUR) - Rotterdam Institute of Law and Economics; Erasmus University Rotterdam (EUR) - Erasmus School of Law

Date Written: February 21, 2008

Abstract

In the economic analysis of tort law, scant attention is paid to justifications and excuses. An injurer invoking a justification argues that he did not act wrongfully. Excuses imply that the injurer acted wrongfully, but that his act cannot be imputed to him.

If torts are described in general terms, on an abstract level, the possible role of justifications and excuses is larger than if the tort is subjectively defined. After all, the specific circumstances of the case that could lead to the conclusion that the injurer should not be liable are already incorporated in a subjectively defined tort, so that there is no separate function for justifications and excuses anymore.

In this paper I argue that the use of general, abstract norms is preferable to applying subjective concrete norms. This generalization saves on administrative costs, it might lead to a better allocation of resources and it can provide better care and activity incentives. In circumstances where the objective norm would lead to undesirable outcomes, due to the specific circumstances of the case, justifications can serve as a correction. I analyze force majeure, necessity, necessary self-defense, legal duty or legal authority, authorized legal order, permission of the victim, assumption of risk and acting in the general interest. I argue that most, but not all, justifications make economic sense.

In situations where the general norm provides correct incentives but where the specific injurer at hand would not change his behaviour as result of specific circumstances, excuses might avoid liability and hence save on administrative costs. I analyze mental or physical disability or illness, excusable error regarding the law or the facts, self-defense with excessive force and unauthorized official order. I conclude that most of the analyzed excuses are problematic from an economic point of view.

Keywords: tort law, justification, excuse, force majeure, necessity, self-defense, legal duty, legal authority, official order, permission, assumption of risk, general interest, disability, illness, excusable error

JEL Classification: K13, K41

Suggested Citation

Visscher, Louis T., Justifications and Excuses in the Economic Analysis of Tort Law (February 21, 2008). ECONOMIC TORTS, Sabiha Khanum, P., eds., p. 22-57, Hyderabad: The Icfai University Press 2009 . Available at SSRN: https://ssrn.com/abstract=1111547

Louis T. Visscher (Contact Author)

Erasmus University Rotterdam (EUR) - Rotterdam Institute of Law and Economics ( email )

Burgemeester Oudlaan 50
PO box 1738
Rotterdam, 3000 DR
Netherlands

Erasmus University Rotterdam (EUR) - Erasmus School of Law ( email )

3000 DR Rotterdam
Netherlands
+31 (10) 408 1833 (Phone)
+31 (10) 408 9191 (Fax)

HOME PAGE: http://frg.sin-online.nl/staff/index.html?lia=227

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