Tort Law for Cynics

29 Pages Posted: 29 Aug 2014

See all articles by Dan Priel

Dan Priel

York University - Osgoode Hall Law School

Multiple version iconThere are 2 versions of this paper

Date Written: September 2014

Abstract

Tort scholars have in recent years defended a ‘traditional’ or ‘idealist’ view of tort law. In the context of negligence this implies that the holder of a duty of care must make an effort not to violate that duty. Idealists contrast this with a ‘cynical’ view that having a duty of care implies a legal requirement to pay damages for breach of that duty. This article defends the cynical view, arguing that it easily explains doctrines supposedly only explicable from an idealist perspective, and that many aspects of tort law are hard to reconcile with idealism. Empirical constraints often make idealism, even if it were desirable, unattainable, and cynicism is therefore the more honest view. The article argues that idealism is often undesirable, having costs, both pecuniary and non‐pecuniary, which are often ignored, and that therefore it is sometimes better if certain torts take place (and are compensated) than if they do not happen.

Suggested Citation

Priel, Dan, Tort Law for Cynics (September 2014). The Modern Law Review, Vol. 77, Issue 5, pp. 703-731, 2014. Available at SSRN: https://ssrn.com/abstract=2488850 or http://dx.doi.org/10.1111/1468-2230.12087

Dan Priel (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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