David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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Most modern torts scholars adopt a monistic view of torts, arguing that the tort system can be justified or explained by reference to a single rationale. In contrast, few torts pluralists, scholars believing the tort system is based on multiple rationales, have put forward a general theory or framework for tort law. A pluralistic view of the tort system poses significant questions about the relationship among the rationales. Do the rationales work together as a seamless whole? Do the rationales conflict? If they conflict, how does one choose among them? Does the entire system devolve into adjudicative relativism, whereby a judge has no rational basis for choosing among the rationales in the case of a conflict? In this Article, I argue that the value pluralism of Sir Isaiah Berlin, the late English philosopher, provides the framework in which the torts rationales interact. A Berlinian understanding of tort law consists of four propositions. First, the torts rationales are truly distinct; each of them conveys a different idea about the purpose of tort law. Second, these rationales are objective. Each torts rationale exemplifies a legitimate purpose for human beings to pursue. Third, the torts rationales have the potential to be incompatible. Indeed, the theories often entail opposing conclusions. Finally, the torts rationales are incommensurable - incapable of being ordered in a timeless hierarchy. This leaves torts judges, in any given case, in the position of having to select among rationales, which cannot be arranged in a consistent hierarchy and may be incompatible. Berlin has little advice about the issue of choosing among options as a general matter. However, his comments on choice indicate that context is by far the most significant factor in making the decisions. If the torts rationales are “unrankable in the abstract,” context allows judges to rationally choose among them. Thus, the lesson for scholars is to focus on the contexts of torts. Although this contradicts the current monistic trend in torts scholarship, with its concomitant de-emphasization of the particular, the emphasis on context is completely consistent with the common law itself.
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