The failure of universal theories of tort law

Goudkamp, James and Murphy, John Roger (2016) The failure of universal theories of tort law. Legal Theory, 21 (2). pp. 47-85. ISSN 1352-3252

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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”.

Item Type:
Journal Article
Journal or Publication Title:
Legal Theory
Additional Information: 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.
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Deposited On:
04 Mar 2016 16:36
Last Modified:
30 Nov 2023 01:43