Tuesday, September 5, 2006
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.
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.