Tuesday, February 4, 2014
Yuvai Sinai (Netanya) and Benny Shmueli (Bar-Ilan) have posted to SSRN Calabresi's and Maimonides's Tort Law Theories--A Comparative Analysis and a Preliminary Sketch of a Modern Model of Differential Pluralistic Tort Liability Based on Two Theories. The abstract provides:
The main argument of Sinai and Shmueli's article is that the roots of contemporary utilitarian analysis can be traced back to Jewish law sources, and the ancient model can assist us in presenting a preliminary sketch of a modern model of pluralistic tort liability.
Is it possible to create a virtual dialogue between the method of classic scholars of the economic analysis of tort law, such as Guido Calabresi — one of the founders of (tort) law and economics, and the method of Jewish tort law scholars, such as Talmudic and post-Talmudic sages, especially Maimonides? The obvious answer appears to be negative, as the two methods are miles apart in time and space, geographically, and mentally-culturally. However, we point out that it is definitely possible to conduct a dialogue between the two tort theories, and the results are likely to surprise. It is surprising to read ancient sources in the eyes of law and economics. Even though these sources focus especially on private tortfeasors and daily torts as nuisances between neighbors, and not with mass tortfeasors and victims as in the modern industrial world, one can definitely observe deep elements of law and economics in these sources.
Careful analysis of modern tort law and economics helps in the understanding of many Talmudic sources and Maimonides’s tort theory, which many scholars had difficulty explaining because of their deviation from the principle of fault. This analysis explores that Talmudic tort law, in the light of Maimonides writings, follows a pluralist path, which balances between utilitarian and deontological considerations. Maimonides’s theory consists of various objectives and considerations that operate in concert. Different objectives play a dominant role in different types of damage.
Although at times scholars use considerations of efficiency in support of their arguments, most of them do not ascribe any independent value to an economic or utilitarian approach or perspective; from their point of view this is no more than some type of added value. The present article, however, argues that Maimonides was not of this opinion but saw the value of a utilitarian approach as a guiding conceptual pattern and philosophical approach, although he did not refrain from integrating other values as well.
Nevertheless, in addition to pointing out the meeting points between the theories, we also indicate the significant differences between them, which follow from the different and at times conflicting positions of the methods.
Hence, the analysis of the dialogue between the methods produces a deeper understanding of both theories of tort law, each one separately. However, theoretical research often finds its way to practical application. The analysis is expected to enable us to integrate the two methods, if only in part, into a modern model of tort liability. Hence, we will propose an applicative model that contains an outline of a theory of torts inspired by the writings of Maimonides and other Jewish scholars, and contemporary prominent law and economics scholars such as Calabresi and Posner. The assumption is that the model presented by Maimonides is creative, but needs to be adapted to the present; whereas Calabresi's model is compelling. Nonetheless, we think that Calabresi's model is less suitable for classical tort events committed by uninsured individuals who do not manage risks and do not distribute losses, which have not disappeared entirely from the present landscape of torts. On these grounds, it is possible to propose a modern preliminary sketch that can serve as an introduction for a modern model of tort liability. The proposed model will be pluralistic, featuring (what we call) "differential liability," based on Calabresi's doctrines of the cheapest cost avoider and of the best decider, but different from them. This outline highlights a certain split between (a) the need to implement strict liability, and efficiency considerations in some of the tort cases, and (b) to apply liability that is not absolute but rather fault-based, as well as deontological considerations in other tort events. The efficiency considerations apply especially to cases in which insurance is dominant, when it is possible to identify a deep pocket, and when loss is distributed; the deontological considerations apply especially in classical traditional tort events involving an uninsured private tortfeasor, who has limited financial means.
The model also provides complementary interpretation to seemingly contradictory economic approaches of no-fault (Calabresi) and fault-based (Posner) regimes.
Prof. Calabresi's response discusses law, economics, and Justice in our era and according to Maimonides. It discusses empirical differences in times in their implications, and considers the question whether there are differences between the differential liability model, presented by Maimonides and analyzed by Sinai and Shmueli, and the cheapest cost avoider doctrine. It also expands on deontological vs. utilitarian considerations, and presents justice according to law and economics.
The authors are working on expanding the analysis into a book.