Tort: The Long Good-Bye

Abstract

Throughout history, tort – civil liability for wrongdoing – has been a prominent feature of many legal systems. By compelling wrongdoers to compensate their victims, two immediate social needs are satisfied (wrongdoers are penalised, their victims supported), as are other goals (public order is upheld, justice is seen to be done). Yet in modern circumstances tort is less useful. Discouraging harmful behaviour is a fundamentally different project from supporting the sick and penniless. The main advantage of tort liability – that it contributes to a variety of essential policy aims – now makes it look muddled, or even an obstacle to progress. Tort is therefore bent out of shape in separating these aims. Yet we cannot finally say farewell to tort until all of its vital functions are replaced with better provision, which requires both political will and a fair degree of optimism – both currently rare commodities.

Keywords: Tort, civil liability, compensation, law reform

JEL Classification: K13