Which Interests Should Tort Protect?
82 Pages Posted: 2 Jun 2015
Date Written: January 2013
The paper asks the question of what justifies the practice of tort law. It asks the question with a particular focus: which interests should tort protect? The paper argues that tort selects and protects a determinate set of interests even if we do not take it to be doing so. The second claim advanced in the paper is that tort law is constitutive of political society in the sense that it expresses our sense of ourselves as persons within society, and our sense of what we owe one another. Given that tort law inevitably selects a particular set of interests for protection, and that this selection is politically significant in that it expresses what we take our rights and obligations towards each other to be, the paper argues that the interests tort selects for protection ought, at least presumptively, reflect the set of interests that are enumerated in constitutions and bills of rights – the interest that best reflect the values that constitute our political morality. Given the fact of reasonable moral disagreement, constitutions and bills of rights offer the best approximation of the values to which we are fundamentally committed. To the extent that the set of interests that tort protects is different from the set of interests constitutionally enumerated in the form of individual rights, tort law’s deviation from that set of interests must be explicitly justified – and current theories of tort have not done so.
Keywords: Tort, Tort Theory, Private Law Theory, Interests, Rights, Legal Theory
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