Can Tort Law Be Moral?

Ratio Juris, Vol. 23, No. 2, pp. 205-28, 2010

Posted: 11 Apr 2010

See all articles by Avihay Dorfman

Avihay Dorfman

Tel Aviv University - Buchmann Faculty of Law

Multiple version iconThere are 2 versions of this paper

Date Written: April 7, 2010

Abstract

According to the established orthodoxy, the law of private wrongs - especially, the common law tort - fails to map onto our moral universe. Four objections in particular have caught the imagination of skeptics about the moral foundations of tort law: They Purport to cast doubt over the moral appeal of the duty of care element; they target the seemingly inegalitarian objective standard of care; they object to the morally arbitrary elements of factual causation and harm; and they complain about the unnecessary extension of liability under the guise of the proximate cause element. Analyzing these four prevailing arguments against the a-moral (and, in regard to some, anti-moral) character of tort law, I shall seek to show that the normative structure of tort law can, nonetheless, be reconstructed so as to reflect, to an important extent, our considered judgments about basic moral principles.

Keywords: Moral foundations of Tort Law, wrongs, equality, moral luck, responsibility for action

JEL Classification: K13

Suggested Citation

Dorfman, Avihay, Can Tort Law Be Moral? (April 7, 2010). Ratio Juris, Vol. 23, No. 2, pp. 205-28, 2010. Available at SSRN: https://ssrn.com/abstract=1585675

Avihay Dorfman (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel

Register to save articles to
your library

Register

Paper statistics

Abstract Views
871
PlumX Metrics