Rights statement: https://www.cambridge.org/core/journals/legal-theory/article/the-failure-of-universal-theories-of-tort-law/D98A4CDFBD5CB3FF616E20C3E5AA0EAC The final, definitive version of this article has been published in the Journal, Legal Theory, 21 (2), pp 47-85 2016, © 2016 Cambridge University Press.
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Research output: Contribution to Journal/Magazine › Journal article › peer-review
Research output: Contribution to Journal/Magazine › Journal article › peer-review
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TY - JOUR
T1 - The failure of universal theories of tort law
AU - Goudkamp, James
AU - Murphy, John Roger
N1 - https://www.cambridge.org/core/journals/legal-theory/article/the-failure-of-universal-theories-of-tort-law/D98A4CDFBD5CB3FF616E20C3E5AA0EAC The final, definitive version of this article has been published in the Journal, Legal Theory, 21 (2), pp 47-85 2015, © 2016 Cambridge University Press. Published volume and issue date is 2015.
PY - 2016/9/13
Y1 - 2016/9/13
N2 - Many scholars have offered theories that purport to explain the whole of the law of torts. At least some of these theories do not seem to be specific to a single jurisdiction. Several appear to endeavour to account for tort law in at least the major common law jurisdictions, or even throughout the common law world. These include Ernest Weinrib’s corrective justice theory, Robert Stevens’s rights theory, and Richard Posner’s economic theory. This article begins by explaining why it is appropriate to understand these three theories as universal theories of tort law, which is an important feature of these theories that has not hitherto been properly appreciated. This explanation draws upon various overt claims (or other strong intimations) made by the theorists themselves to the effect that this is how their respective accounts should be understood. The article then proceeds to test these theories, all of which are leading accounts of tort law, against the evidence in Australia, Canada, the United Kingdom and the United States. Not all of these theories have received a proper airing in these major common law jurisdictions, which is a gap in the literature that this article seeks to fill. The parts of tort law on which we focus are (1) the breach element of the action in negligence, (2) the law that determines when a duty of care will be owed in respect of pure economic loss, (3) the law that governs the availability of punitive damages, (4) the defense of illegality and (5) the rule in Rylands v. Fletcher and its descendants. The article concludes that none of the theories is a satisfactory universal account of tort law. All of them suffer from significant problems of fit in that they cannot accommodate (often even approximately) the areas of law that we discuss. While all of the theories contain valuable insights, they fall well short of accomplishing that which they are held out as providing. In the course of this analysis, the article explains why this is an appropriate line of criticism and identifies the degree of lack of fit that we regard as being “significant”.
AB - Many scholars have offered theories that purport to explain the whole of the law of torts. At least some of these theories do not seem to be specific to a single jurisdiction. Several appear to endeavour to account for tort law in at least the major common law jurisdictions, or even throughout the common law world. These include Ernest Weinrib’s corrective justice theory, Robert Stevens’s rights theory, and Richard Posner’s economic theory. This article begins by explaining why it is appropriate to understand these three theories as universal theories of tort law, which is an important feature of these theories that has not hitherto been properly appreciated. This explanation draws upon various overt claims (or other strong intimations) made by the theorists themselves to the effect that this is how their respective accounts should be understood. The article then proceeds to test these theories, all of which are leading accounts of tort law, against the evidence in Australia, Canada, the United Kingdom and the United States. Not all of these theories have received a proper airing in these major common law jurisdictions, which is a gap in the literature that this article seeks to fill. The parts of tort law on which we focus are (1) the breach element of the action in negligence, (2) the law that determines when a duty of care will be owed in respect of pure economic loss, (3) the law that governs the availability of punitive damages, (4) the defense of illegality and (5) the rule in Rylands v. Fletcher and its descendants. The article concludes that none of the theories is a satisfactory universal account of tort law. All of them suffer from significant problems of fit in that they cannot accommodate (often even approximately) the areas of law that we discuss. While all of the theories contain valuable insights, they fall well short of accomplishing that which they are held out as providing. In the course of this analysis, the article explains why this is an appropriate line of criticism and identifies the degree of lack of fit that we regard as being “significant”.
U2 - 10.1017/S1352325216000021
DO - 10.1017/S1352325216000021
M3 - Journal article
VL - 21
SP - 47
EP - 85
JO - Legal Theory
JF - Legal Theory
SN - 1352-3252
IS - 2
ER -