Pluralism in Tort and Accident Law: Toward a Reasonable Accommodation

Abstract

Ernest Weinrib characterizes private law in general, and tort law more specifically, as an "exhibition of intelligence." To grasp private law is to come to terms with it, not merely as a set of decisions authoritatively imposed upon litigants, but as an engagement of thought where, says Weinrib, "the process of justification is at least as important as the result of individual adjudications." In this essay, after offering a choice theoretic interpretation of any form of accident law as necessarily involving problems of multi-criterial decision-making, I also try to take seriously the idea that the private law of tort is an engagement of thought or an exhibition of intelligence. But I do so in a way that allows, more than Weinrib does, for the self-sufficiency, or independent significance, of genuinely plural criteria. The concern for law as an engagement of thought is evidenced, first, by the fact that I secure the foundations for my particular path-dependent method for accommodating pluralism within the logically rigorous analyses provided by the theory of social choice and, second, by the fact that I interpret this path-dependence as a conceptually sequenced argument developed between two litigants. The respect I attach to the independent significance of plural criteria, and in particular to the significance of both rights and welfare as criteria properly relevant to tort law, is shown by the way I give rights and corrective justice their priority in this argument, even as I allow the more welfarist concerns for efficient deterrence and reasonable compensation to defease this priority at some subsequent stage of the argument. The danger of such defeasibility being arbitrary or ad hoc is avoided precisely because it is conceptually ordered. Moreover, because the plural values are accommodated in sequence rather than under a simultaneous mutual conditioning of parts (as Weinrib seems to require), the sort of contradiction that we might otherwise observe within flat legal thinking is avoided. Thus, a conceptual ordering, which allows for the defeasible priority of genuinely plural criteria, seems to provide both for a formal structure of coherent pluralism, in a way that Weinrib denied was possible, and for a normatively attractive content for that structure in the combined consideration of rights and welfare. Indeed, this combination is sufficiently attractive, I argue, to compel our continued allegiance to tort law as one of the more reasonable methods for dealing with the costs of wrongful interactions between persons.