Ethical Issues in the Law of Tort

Abstract

This paper surveys some leading issues in the extant law of tort with a view to exposing some of its assumed values. Three different ethical theories provide the basis for discussion, namely the theories of compensation, retribution and deterrence. While no one of these three theories can fully explain or justify existing tort law, it is suggested that the deterrence theorist provides the best rationale of the three for the harm requirement and for certain doctrines of proximate cause. On the other hand, the compensation theorist, once he is supported with retribution-like concerns for the relative innocence of the affected parties, does better in explaining the legal approach to problems of multiple causation. Finally, it is suggested that the difficulty with all three of the theories is that, unlike a theory of corrective justice, they encourage us to give separate consideration to the fortunes of plaintiff and defendant.