Can there be a unified theory of torts? A pluralist suggestion from history and doctrine

Abstract

In this article, I discuss the tendency of tort theorists to attempt to unify all of tort law. In other words, many scholars have sought to explain torts by the use of a single idea. Originally, scholars attempted a unity of doctrine, such as Holmes' focus on negligence. In the last several decades, scholars have sought to unify torts by rationale. In particular, modern scholars tend to view torts either as a means of deterring injuries or of achieving corrective justice. I argue that both history and doctrine suggest that the attempt to unify all of torts is futile. From a historical perspective, what we now label tort law was created on an ad hoc basis as problems developed in communities in medieval England. The law was developed practically to resolve those problems, not to embody any vision of justice. Furthermore, tort law was the common law's residual area of civil liability, and was not conceived to be a coherent subject matter. Perhaps as a result, concepts from other areas of law have significantly influenced tort doctrines. These imported concepts are based on goals foreign to, and not necessarily consistent with, tort goals. Tort law's doctrine also appears hostile to unification. In assessing whether doctrine might support a unified theory of torts, I compare two doctrinal areas for consistency. If a unified theory of torts cannot encompass two discrete doctrines of torts, of course it cannot encompass all of torts. A cursory examination of automobile accidents and medical malpractice reveals significant differences of reciprocity of risk, causation and the incursion of doctrines foreign to tort law. Based on the comparison, it appears that each of the three traditional tort goals - deterrence, corrective justice and compensation - may be problematic in one doctrine or the other. I thus conclude that a unified theory of torts is not plausible. Based on this conclusion, I argue that scholars should devote their energies to examining the pluralist nature of tort law. In particular, I urge scholars to focus on the contexts of torts. By focusing on the contexts, instead of ignoring them for the sake of cohesion, scholars may be able to determine under what circumstances a particular torts goal should be emphasized.

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