Torts As Systems

61 Pages Posted: 26 Mar 2018  

Alan Calnan

Southwestern Law School

Date Written: March 22, 2018

Abstract

This article offers a science-based answer to an old philosophical question, “What is the essential nature of torts?” Building on the “process theory” of torts and my own general theory of “jurisilience,” the proposed answer emerges from a neglected natural fact: torts is a complex system. Like all such systems, torts is both shaped by and composed of various subsystems. Mankind’s biological, neuro-psychological, and socio-cultural subsystems create selfish, social, and ratio-moral conflicts that influence torts’ history, content, and practice. This inner tension also accounts for torts’ adversarial structure, which includes three systems in one—a dispute resolution system, a lawmaking system, and the social value system at large.

The discordant form of these features reveals torts’ true function. To manage complexity, torts continuously coordinates its friction points, using its trilateral subsystems to harmonize its disparate goals and values and reconcile society’s interpersonal disputes.

Though tort law constrains this coordinative process, it does not control it. Rather, like every other complex system, torts’ coordinative process is decentralized, spontaneous, and synergistic. This can be seen horizontally across tort theories, as “core” distinctions among intentional torts, negligence, and strict liability progressively erode and transform. It also is evident within each theory’s “indispensable” elements, which are constantly adjusted, informed, or blurred by other key concepts. These emergent patterns even extend vertically in the development of important fields like pure emotional distress, premises liability, and strict products liability, where system dynamics can take different trajectories and produce unplanned and unpredictable results.

In this sense, torts is not a stable concept that can be comprehended solely by studying its prominent components, as tort theorists have long supposed. Instead, it is really a false façade for the turbulent vortex of conflict and change animating the complex systems beneath.

Keywords: Complex Systems, Complementarity, Coordination Dynamics, Homeostasis, Biology, Neuroscience, Psychology, Sociology, Intentional Torts, Negligence, Strict Liability, Emotional Distress, Premises Liability, Strict Products Liability, Process Theory, Corrective Justice, Civil Recourse

JEL Classification: K13

Suggested Citation

Calnan, Alan, Torts As Systems (March 22, 2018). Available at SSRN: https://ssrn.com/abstract=3147117 or http://dx.doi.org/10.2139/ssrn.3147117

Alan Calnan (Contact Author)

Southwestern Law School ( email )

3050 Wilshire Blvd.
Los Angeles, CA 90010
United States
(213) 738-6811 (Phone)

Register to support our free research

Register

Paper statistics

Downloads
51
rank
346,743
Abstract Views
160
PlumX