The Goals of Modern Tort Law: A Proposal for a New Mixed-Pluralistic Theory
Hebrew University of Jerusalem Law Review (Mishpatim), Vol. 39, pp. 233-345, 2009 (Hebrew)
113 Pages Posted: 30 Nov 2009 Last revised: 29 Dec 2014
Date Written: November 27, 2009
For the past four decades, two unified-monistic theories - corrective justice, ensuing from a moral deontological approach; and optimal deterrence, as an outcome of an economic consequential approach to a cost-benefit analysis - have governed the analysis of tort laws. Unlike the approach of unified-monistic theories to analyzing the theory of tort laws, mixed-pluralistic theories do not focus on a single goal and are not confined to a narrow view of social and legal tortious situation. Pluralistic approaches identify deficiencies in each of these theories (as well as in other monistic theories, such as distributive justice), and attempt to produce a balance by integrating various goals which are implemented in different measures. This article criticizes the mixed-pluralistic approaches to tort law that appeared in the American, Canadian, British, and Israeli literature over the past six decades, and proposes a new mixed-pluralistic theory as set in an Israeli reality where there is no clear and uniform theory. Even the recently suggested Israeli Civil Code that refers to a pluralist theory does not provide tools for the implementation of that theory, and thus remains somewhat declarative.
Some of the current pluralistic approaches seek to examine the entire range of tortious issues as a single entity. Namely, they seek to analyze all the goals, give preference to one of them, and then assert its greater dominance within the framework of considerations and balances; and they follow this path regardless of the tort issue under inspection. Other pluralistic approaches attempt to examine each tort issue separately, without a guiding hand that prefers one goal over another in case there is a clash between competing goals. Other intermediate pluralistic approaches also exist. Some of those approaches are not universal but local, and are particularly suitable for common law.
Starting from a position of support for the mixed-pluralistic thesis, the advantages offered by current approaches are extracted and a new mixed-pluralistic approach is proposed in this paper. This approach is adapted to the multitude of significant changes that affected modern tort laws in recent years. The suggested approach attempts to divide the tort issues into two principal categories, determine the dominance of certain goals in relation to the first group, and the dominance of other goals in relation to the second group, and concurrently draw a certain balance with the less dominant goals in those situations where the underlying principles are significantly infringed. The classification of the tort issues into two categories is made in accordance with the profile of the defendant and the nature of his tortious activity, which is either private and spontaneous, or sophisticated, calculated and commercial.
In following this path, the proposal treads a fine line between efficacy and legal certainty on one hand, and compatibility with the changing and very diverse social and legal reality, as reflected in modern tort law, on the other. This approach will be based on an examination of the compatibility of several tort issues, traditional, and classic, modern and novel, to a developing reality, through the prism of the proposed approach. The proposed approach tries to guide the Israeli (and comparative) case law, inter alia by giving some practical meaning to the relevant sections in the suggested Civil Code.
Note: Downloadable document is in Hebrew.
Suggested Citation: Suggested Citation