Structure, Function, and Tort Law

12 Journal of Tort Law (Forthcoming)

Osgoode Legal Studies Research Paper

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), Osgoode Legal Studies Research Paper, 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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