Is Tort Law “Private”?

Abstract

This chapter contends that modern tort law is not “private law” in the distinctive way in which that term is now used. Theorists of tort as “private law” tend to regard its domain as one-off collisions among individual persons as they pursue their particular purposes, each in his or her individual, idiosyncratic, and voluntary way. Modern tort law, however, emerged in response to the rise of accidental harm as a pressing social problem. This chapter argues that refocusing on accidental harm as a basic feature of an industrial civilization prompted tort law to undergo a significant but underappreciated transformation in which harm is as salient as wrong and conceptions of collective responsibility compete with individual responsibility for control of the field. Trenchantly challenging the most basic commitments of the Kantian conception of tort law championed by Ernest Weinrib and Arthur Ripstein, this chapter maintains that there is nothing fundamentally private about tort law.