Instrumental Tort Law: Moral Technology or the Promise of a More Advanced Normative Underpinning?

Abstract

Abstract In recent decades, tort law, and the theory on which it is based, have been the subject of intense debate. These debates focus on the underlying rationale of tort law and reflect tensions between instrumental and non-instrumental perspectives. Instrumental perspectives cover a wide variety of approaches in which tort law is seen as a tool to realise social aims. It can be recognised in the theories of legal economists, such as Posner, who emphasise deterrence, but also in the theories of those who consider it to be an instrument to realise compensation or to contribute to distributive justice. The non-instrumental perspective reflects the concerns of those who consider tort law to be based on individual autonomy and liberty. Some advocates of this perspective adopt a straightforward anti-instrumental position. Weinrib and Beever for instance, object to tort law being used as an instrument to realise collective aims. An instrumental approach would make individuals – either the injurers or the victims – the servants of collective aims, whereas tort law should instead protect individual freedom in the face of community needs.These non-instrumental theories and their individualistic interpretation of liability are unrealistic in a society where people are embedded in wide networks of interdependency, in which risks are often anticipated and deliberately accepted as socially desirable, and in which insurance and its accompanying rationale of actuarial justice play a prominent role.Nevertheless, the issue I seek to address in this paper is whether the principle of corrective justice might not embody some important values that can be used to counter some problematic aspects of an instrumental approach. Based on an awareness that the concept of corrective justice as a whole is no longer realistic in today’s society and building on Habermas’ theory of communicative action, I will sketch the contours of an alternative underpinning for tort law that better reflects current social realities, while at the same time taking some normative reservations held by advocates of corrective justice against instrumentalism into account.