The Failure of Universal Theories of Tort Law

39 Pages Posted: 18 Apr 2016 Last revised: 16 Nov 2017

See all articles by James Goudkamp

James Goudkamp

University of Oxford - Faculty of Law

John Murphy

University of Manchester - School of Law

Date Written: 2016

Abstract

Many scholars have offered theories that purport to explain the whole of the law of torts. At least some of these theories do not seem to be specific to a single jurisdiction. Several appear to endeavour to account for tort law in at least the major common law jurisdictions, or even throughout the common law world. These include Ernest Weinrib’s corrective justice theory, Robert Stevens’s rights theory, and Richard Posner’s economic theory. This article begins by explaining why it is appropriate to understand these three theories as universal theories of tort law, which is an important feature of these theories that has not hitherto been properly appreciated. This explanation draws upon various overt claims (or other strong intimations) made by the theorists themselves to the effect that this is how their respective accounts should be understood. The article then proceeds to test these theories, all of which are leading accounts of tort law, against the evidence in Australia, Canada, the United Kingdom and the United States. The parts of tort law on which we focus are (1) the breach element of the action in negligence, (2) the law that determines when a duty of care will be owed in respect of pure economic loss, (3) the law that governs the availability of punitive damages, (4) the defense of illegality and (5) the rule in Rylands v. Fletcher and its descendants. The article concludes that none of the theories is a satisfactory universal account of tort law. All of them suffer from significant problems of fit in that they cannot accommodate (often even approximately) the areas of law that we discuss. While each of the theories contains a great many valuable insights, they nonetheless fall well short of accomplishing that which they are held out as providing. In the course of this analysis, the article explains why this is an appropriate line of criticism and identifies the degree of lack of fit that we regard as being “significant”.

Keywords: torts; explanatory theory; corrective justice; rights theory; economic theory; negligence; breach of duty; pure economic loss; punitive damages; illegality doctrine; ultrahazardous activities

JEL Classification: K13

Suggested Citation

Goudkamp, James and Murphy, John, The Failure of Universal Theories of Tort Law (2016). Legal Theory, Vol. 22, pp. 1-39, 2016, Oxford Legal Studies Research Paper No. 66/2017, Available at SSRN: https://ssrn.com/abstract=2765717

James Goudkamp (Contact Author)

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

John Murphy

University of Manchester - School of Law ( email )

Oxford Road
Manchester M13 9PL, M139PL
United Kingdom

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