The Old and New Philosophical Foundations of Tort Law
Review of John Oberdiek (ed), Philosophical Foundations of the Law of Torts, Oxford: Oxford University Press, 2014, 464 pp, hb, £75.00.
In 1995, David Owen offered a prolific collection of essays on the philosophical foundations of tort law. The book included works from leading corrective justice scholars such as Jules Coleman, Ernest Weinrib, Bruce Chapman and Stephen Perry, among many others. The book's message was clear at that time: the Law and Economics era was over, because it was possible to elaborate a normative account of tort law based on the idea of corrective justice. John Oberdiek now offers an attractive new volume on the same topic. Like its predecessor, Oberdiek's collection aims to capture most of the current philosophical work of legal scholars in the area of tort law. In his introduction, Oberdiek praises George Fletcher, Jules Coleman, and Ernest Weinrib for their ‘early efforts’ that ‘helped to substantiate philosophy of tort law's standing as a distinct subfield within philosophy of law’. These three legal philosophers, however, are not present in this collection. This fact is not a coincidence. It is true that the book includes tort scholars who have written extensively on the foundations of tort law, such as John Goldberg and Benjamin Zipursky, Stephen Perry, Peter Cane, and John Gardner, but it also includes works of theorists who do not necessarily work on tort law as a primary subject, such as David Enoch, Victor Tadros, R. A. Duff, and Linda Radzik.
Oberdiek's new collection is not much concerned with the discussion of theories of corrective justice, which was one of the major issues that concerned Owen's volume. In fact, the book has only one corrective justice theorist among its contributors, namely Gardner (even though his contribution to this volume does not defend a theory of corrective justice). Moreover, Goldberg and Zipursky argue in their chapter that a tort theorist (which they suggest should be a ‘responsibility theorist’) can be a corrective justice theorist, but it is not a requirement (26). Similarly, Scott Hershovitz suggests in his chapter that Aristotelian corrective justice should be modified or ‘corrected’ with a notion of revenge or ‘getting even’ (95). Additionally, Radzik's chapter also claims that Aristotelian corrective justice should be reformulated in terms of a ‘reconciliation theory of corrective justice’ (237). And finally, both Gardner's and Hanoch Sheinman's chapters focus on distributive justice, though they do not aim to criticise corrective justice as a normative principle for tort law. The book, then, seems to be committed to new theoretical accounts that have brought interesting and unexplored concerns into the philosophical debates on tort law, such as the role of apologies, the reconciliation of the parties (or getting even), holding wrongdoers responsible, and so on. The purpose of this commentary is to briefly describe this tension between the ‘old’ foundations of tort law based on the idea of corrective justice, and the ‘new’ foundations of tort law, emphasising alternatives to corrective justice, that most (though not all) of the contributors to Oberdiek's book seem to advance. At the end I will briefly offer my views regarding these new theoretical accounts of tort law and their implications.