Tort Law Recovered? From Alan Brudner's Revised Case for Tort Law to the Ethical Underpinnings of Liberal Democracy

18 Pages Posted: 16 Jun 2014

See all articles by Francois du Bois

Francois du Bois

University of Leicester - School of Law

Date Written: June 15, 2014

Abstract

Engaging with Alan Brudner’s case for tort law, this paper explores how and why tort law is distinctly valuable to the liberal democratic state. In the new edition of The Unity of the Common Law, Brudner argues for "a duty on courts to administer a private-law (corrective justice) model of civil liability and a duty on legislatures to retain a private-law regime for rectifying wrongful losses alongside legislative schemes for no-fault social insurance". This paper shows that, contrary to first impressions, Brudner’s arguments underplay tort law’s intrinsically relational character, its fundamental connection to the facilitation and stabilisation of interpersonal obligations, including the social relations of which these form part. Drawing on the work of Stephen Darwall, I outline an alternative understanding of tort law, foregrounding its specifically relational character. This understanding, I contend, succeeds in uncovering tort law’s contribution to securing the social foundations of a legitimate political order.

Keywords: Tort law, philosophy of private law, bipolar obligation, Hegel

Suggested Citation

du Bois, Francois, Tort Law Recovered? From Alan Brudner's Revised Case for Tort Law to the Ethical Underpinnings of Liberal Democracy (June 15, 2014). University of Leicester School of Law Research Paper No. 14-18, Available at SSRN: https://ssrn.com/abstract=2450774 or http://dx.doi.org/10.2139/ssrn.2450774

Francois Du Bois (Contact Author)

University of Leicester - School of Law ( email )

University Road
Leicester, LE1 7RH
United Kingdom

HOME PAGE: http://www.le.ac.uk

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