Can Tort Law Be Moral?

24 Pages Posted: 19 May 2010

See all articles by Avihay Dorfman

Avihay Dorfman

Tel Aviv University - Buchmann Faculty of Law

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Abstract

According to the established orthodoxy, the law of private wrongs—especially common law torts—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 concerning the a-moral (and, with regard to some interpretations, 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.

Suggested Citation

Dorfman, Avihay, Can Tort Law Be Moral?. Ratio Juris, Vol. 23, Issue 2, pp. 205-228, June 2010. Available at SSRN: https://ssrn.com/abstract=1611338 or http://dx.doi.org/10.1111/j.1467-9337.2010.00451.x

Avihay Dorfman (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel

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