Tort Law for Cynics

Abstract

Various tort scholars have in recent years come to the defence of a ‘traditional’ or ‘idealist’ view of tort law. In the context of negligence this view implies that having a duty of care means that the law considers violating this duty as something that the duty-holder must make an effort not to do. Idealists contrast this view with a ‘cynical’ view according to which having a duty of care implies a legal requirement to pay damages for breach of the duty of care. In this essay I defend the cynical view against its critics. Descriptively, I argue that the cynical view can easily explain doctrines supposedly only explicable from an idealist perspective, and that in fact many aspects of tort law are hard to reconcile with idealism. I argue that various empirical constraints often make idealism, even if it were desirable, unattainable, and in this regard cynicism is a more honest view than idealism. But I further argue that cynicism is not merely a concession to reality, that idealism is often undesirable. Idealists ignore the fact that opting for idealism has costs (both pecuniary and non-pecuniary), and that when those are taken into account, idealism is often normatively unattractive.

Keywords: tort law, duty of care, negligence