Structure, Function, and Tort Law

12 Journal of Tort Law (Forthcoming)

43 Pages Posted: 6 Mar 2020

See all articles by Dan Priel

Dan Priel

York University - Osgoode Hall Law School

Date Written: February 9, 2020

Abstract

A popular view among tort theorists is that an explanation of tort law must take account its “structure,” since this structure constitutes the law’s “self-understanding.” This view is used to both criticize competing functional accounts of tort law, especially economic ones, that are said to ignore tort law’s structure, and, more constructively, as a basis for explaining various tort doctrines. In this essay, I consider this argument closely and conclude that it is faulty. To be valid, one needs a non-question begging way of identifying the essence of tort law. I argue that law’s “self-understanding” can only make sense if it means the understanding of certain people. Examining those, I conclude that the claim of structuralists is false, for there are many people who take its function to be central. I then further show that if one wishes to understand the development of tort law’s doctrine one must take both structure and function into account. I demonstrate this claim by examining the development of the doctrine dealing with causal uncertainty and vicarious liability.

Keywords: tort law, tort theory, conceptual jurisprudence, functional jurisprudence

Suggested Citation

Priel, Dan, Structure, Function, and Tort Law (February 9, 2020). 12 Journal of Tort Law (Forthcoming). Available at SSRN: https://ssrn.com/abstract=3535198

Dan Priel (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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