The Moral Foundations of Tort Law †

Abstract

Proposed justifications for the institution of tort law can be divided into two main categories. The first is comprised of theories that look upon civil liability as a means for advancing one or more public policies such as general social compensation, wealth redistribution, loss-spreading, or the attainment of economic efficiency through deterrence. Aristotle seems to limit category of involuntary transactions to what people would today call intentional torts. His examples include theft, adultery, enticement of slaves, bearing false witness, assassination and assault. The essence of second general type of argument claiming to justify correlative rights and obligations of reparation is reliance on a localized conception of distributive justice. The argument for strict liability just considered took the basis of redistribution to be the voluntary performance of an action that subsequently caused harm. Weinrib might want to reply at this point that tort law is only concerned with insults to personality that also happen to interfere with an embodiment of personality.

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