Tort Law and Its Theory

Forthcoming in J Tasioulas (ed), The Cambridge Companion to Philosophy of Law (expected publication 2018)

Oxford Legal Studies Research Paper No. 2/2018

25 Pages Posted: 31 Jan 2018  

John Gardner

University of Oxford

Date Written: May 23, 2016

Abstract

This paper explores the body of scholarly writing known as 'tort theory', and in particular the polarization of 'economic' and 'moral' approaches to the subject. It queries the ambitions, the discourses, and the presuppositions of work on both sides of that divide. In particular it investigates: the sense in which both approaches are (and are not) inevitably 'normative'; what counts as tort law, and what counts as a tort, according to the two approaches; and what it means (and what it does not mean) to think of tort law as 'instrumental'.

Keywords: torts, justification, legal economics, rules, value, efficiency

Suggested Citation

Gardner, John, Tort Law and Its Theory (May 23, 2016). Forthcoming in J Tasioulas (ed), The Cambridge Companion to Philosophy of Law (expected publication 2018); Oxford Legal Studies Research Paper No. 2/2018. Available at SSRN: https://ssrn.com/abstract=3108535 or http://dx.doi.org/10.2139/ssrn.3108535

John Gardner (Contact Author)

University of Oxford ( email )

All Souls College
High Street
Oxford, OX1 4AL
United Kingdom

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