Friday, November 13, 2009
What’s Wrong with Torts (II)
In my previous post I suggested that torts are legal wrongs rather than moral wrongs, and that the concept of a legal wrong is not vacuous, but instead refers to the violation of a directive to refrain from interfering with important interests of others, such as bodily integrity. In this entry, I refine the definition of torts as wrongs, again based on a paper that Ben Zipursky and I are writing.
The Relationality of Tortious Wrongdoing
Torts always involve the violation of relational directives – that is, directives as to how one must act or refrain from acting toward a particular person or class of persons. Other legal wrongs such as crimes and regulatory offenses can be relational but they need not be. The purchase and possession of a controlled substance is a criminal wrong but it is not a relational wrong and therefore cannot be a tort. A gratuitous physical attack on someone is a relational wrong that is both a crime and a tort. Inadvertence toward another’s physical well-being can be the basis for tort liability but usually will not count as a crime.
Each tort is defined so as to be a relational wrong. A libel consists of the publication, in writing, of a defamatory statement about a particular person or persons. A fraud is a deceiving of another. This relational aspect to torts is partly what Cardozo had in mind when he famously asserted in Palsgraf that there is no negligence “in the air.” Carelessness provides the basis for tort liability only insofar as it is carelessness toward a person or class of persons.
To describe torts as relational legal wrongs is not to say that torts require a pre-existing relationship between wrongdoer and victim. A driver who drives carelessly with respect to a pedestrian is subject to liability for negligence if his careless driving proximately causes physical harm to the pedestrian. That they are strangers to one another does not in any way undermine the idea that the careless driver was careless as to the pedestrian.
Torts as Injurious Wrongs
It is common today to think of wrongful conduct in terms of two components: conduct and consequences. It is equally common to suppose that one can sensibly talk about wrongfulness only with respect to conduct, not consequences. The latter are said to be a matter of brute luck. For example, the wrongfulness of negligence is said to reside in the careless conduct of the wrongdoer. What happens as a result of that conduct – the victim’s injury – is just a matter of fact that, for reasons of policy, tort doctrine has deemed relevant to setting the sanction to be imposed on the careless actor for his wrongful action.
Although common, this view is mistaken and pernicious. Torts are not wrongful acts that happen to generate adverse consequences for another. Torts are injurious wrongs. To say the same thing, the directives contained in tort law do not enjoin actions per se. They enjoin injurings of various sorts. Take battery. On the standard but mistaken view, judicial decisions defining battery instruct us as follows: “Avoid actions that you hope will cause, or know will cause, the harmful or offensive touching of another. If you don’t avoid such actions, you will have done wrong. And if it turns out that your wrong ends up causing the right sort of consequence for another, you will be ordered to indemnify that other her losses.” A better rendition of the directive contained in the tort of battery is this: “Don’t touch others in ways that tend to be harmful or are widely regarded as offensive.” On this rendering of battery, until there is a touching no wrong has been done. Likewise, the directive built into negligence law is not properly characterized as: “Act with due care toward others.” It is instead: “Do not injure someone by acting without due care toward him or persons situated like him.” Until there is injury, the wrong of negligence has not been committed.
Connecting the Dots
Torts are violations of duly enacted directives that enjoin us from injuring others by acting wrongfully toward them. They are legal, relational, injurious wrongs. Only when one understands that torts are wrongs of this special sort can one make sense of why tort law connects the commission of a wrong to the filing of lawsuits for damages and other remedies. By definition, torts are legal wrongs that have victims – the person or persons who has or have been wrongfully injured by virtue of a violation of one of tort law’s directives. This is why it is natural and appropriate for tort law to grant to the victim a right to respond through law to obtain redress for the wrong done to her. The particular way in which tort law defines wrongs and the particular form of response it permits are two sides of the same coin.
Professor of Law