Tuesday, September 5, 2006

Torts Rationales, Pluralism, and Isaiah Berlin

Ssrn_19 Robinette_picture Professor Christopher Robinette of Widener University School of Law recently posted on SSRN an interesting article, Torts Rationales, Pluralism, and Isaiah Berlin, arguing for a pluralist approach to tort law rationales and emphasizing the importance of context and compensation. Here is the abstract:

    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.


Mass Tort Scholarship | Permalink

TrackBack URL for this entry:


Listed below are links to weblogs that reference Torts Rationales, Pluralism, and Isaiah Berlin:


Post a comment