Friday, March 30, 2018
Al Calnan has posted to SSRN Torts as Systems. The abstract provides:
This article offers a science-based answer to an old philosophical question, “What is the essential nature of torts?” Building on the “process theory” of torts and my own general theory of “jurisilience,” the proposed answer emerges from a neglected natural fact: torts is a complex system. Like all such systems, torts is both shaped by and composed of various subsystems. Mankind’s biological, neuro-psychological, and socio-cultural subsystems create selfish, social, and ratio-moral conflicts that influence torts’ history, content, and practice. This inner tension also accounts for torts’ adversarial structure, which includes three systems in one—a dispute resolution system, a lawmaking system, and the social value system at large.
The discordant form of these features reveals torts’ true function. To manage complexity, torts continuously coordinates its friction points, using its trilateral subsystems to harmonize its disparate goals and values and reconcile society’s interpersonal disputes.
Though tort law constrains this coordinative process, it does not control it. Rather, like every other complex system, torts’ coordinative process is decentralized, spontaneous, and synergistic. This can be seen horizontally across tort theories, as “core” distinctions among intentional torts, negligence, and strict liability progressively erode and transform. It also is evident within each theory’s “indispensable” elements, which are constantly adjusted, informed, or blurred by other key concepts. These emergent patterns even extend vertically in the development of important fields like pure emotional distress, premises liability, and strict products liability, where system dynamics can take different trajectories and produce unplanned and unpredictable results.
In this sense, torts is not a stable concept that can be comprehended solely by studying its prominent components, as tort theorists have long supposed. Instead, it is really a false façade for the turbulent vortex of conflict and change animating the complex systems beneath.