Monday, March 15, 2010
Up until recently I was agnostic on the question of whether tort law reflects ends-in-themselves moral values or is simply a positive manifestation of the instrumental means with which to achieve politically-selected social welfare ends. I am now persuaded that the first of these is correct—tort law rests on a noninstrumental moral base. Because economic analysis offers plausible explanations of much of what tort law seeks to achieve, I am indebted to Ernie Weinrib (Deterrence and Corrective Justice, 50 U.C.L.A. L. Rev. 621) for explaining how, by relying on a conceptually sequenced argument, tort law can have a moral base and nevertheless embrace a deterrence-based implementation apparatus that is consistent with much of what law and economics has to say about tort. Fairness principles trump efficiency when the two are at odds; but once fairness concerns are adequately addressed, tort law is free to pursue efficiency objectives.
I reserve this “fairness at the core” assessment for the “regulatory” elements of substantive law—tort law, criminal law, individual constitutional rights, and the like. Regarding “constitutive” or “enabling” elements of substantive law—contracts law, property law, business organizations, constitutionally-established structures of government—I take a positivist instrumental view. The substantive rules governing these areas supply the practical means by which individuals and groups are empowered to achieve their own, sometimes politically chosen, ends and goals. They do not, as does tort, primarily focus on what is right or wrong. Of course, constitutive areas of law contain regulatory, fairness-based sub-rules within them. For example, contracts law contains limited moral-based elements of tort. But I believe that this constitutive/regulatory distinction holds up reasonably well under analysis.
As for the legal system viewed more broadly, I adopt a positivist, means-to-human ends approach. I am indebted to Lon Fuller (The Morality of Law) for his distinction between the external and the internal moralities of law. (Internal moral principles apply to the processes by which law guides human conduct.) Fuller, who was still teaching at the Harvard Law School when I was a student in the early 1960s, took a natural-law, fairness-based view of internal morality; but he adopted a positivist, means-to-ends view of the external morality of law. In any event, I agree with Fuller that the proper positivist view of our legal system is not one based on a manifested (even if legitimated) threat of force or exercise of social power, but rather is based on cooperative efforts to achieve shared social purposes.
Thus, I now believe that the law of torts imbedded within our legal system is based on, and at its core reflects, noninstrumental principles of fairness—relational notions of right and wrong. I have not worked out exactly what those notions are—I probably don’t have the necessary skill-set and I may not live long enough to make peace with it. But from here on out I prefer to view tort cases as essentially morality plays rather than as merely efforts to assist in the efficient allocation of scarce resources. Weinrib has convinced me that in many (most?) instances tort cases can be both; but at its core, tort law’s purpose is to help to define what is just, right and fair.
- James A. Henderson, Jr.
Cornell Law School
Frank B. Ingersoll Professor of Law