Beyond No-Fault

Abstract

The debate between the faulters and the no-faulters continues unabated.Indeed, in the last few years, discussion has become even more furious and partisan. Only recently in retreat, the faulters seem to have experienced something of a sudden renaissance; they have regrouped and launched a fresh defence of the fault status quo. This articulation of tort theory represents a major part of contemporary legal scholarship. Unfortunately, there is little new on offer, and the debate seems well past the point where further argument or evidence might affect its resolution. Its participants cannot agree on what systemic aims the law should pursue, let alone on the relative priorities of these aims. As with most legal debates, the problem is as much ideological as intellectual. Both the faulters and no-faulters can claim some analytical and statistical support for their interpretations of the arguments and the evidence. At bottom, the categories of fact and truth cannot be divorced from the ideological presuppositions of the categorizer. We cannot discard our ideological presuppositions and achieve some a historical or universal standpoint. Each view, no-fault and fault, depends on rarely articulated foundational assumptions about the nature of human personality and social organization. Proposals to provide health care and income support to the injured and unhealthy reflect a commitment to deep normative principles and raise important questions about social justice and political obligation. How we take care of the social victims of bad fortune is (or ought to be) an integral part of our collective and individual self-image and self-understanding. It speaks to the kind of individuals and community we aspire to be. The tort system is merely a part of a larger societal problem-entitlement to and provision of health care and income support benefits. This essay will focus as much on the welfare forest as on the tort trees.