The Grounds of Tort, Part I: Private Wrongs and Practical Reasoning

Abstract

Tort theory is widely thought to split cleanly into two seams. Some trace tort's foundations to a deontic form of morality; others to an instrumental, policy-oriented system of loss allocation. Civil Recourse Theory (CRT) resists this binary. It argues that torts comprise a basic legal category, and that this category constitutes an autonomous domain of normativity. But while the theory rightly rejects the binary between corrective justice theory on the one hand and the law-and-economics framework on the other, its insistence on tort law's deontic character is more difficult to sustain, and ultimately cannot be vindicated by doctrinal, historical, or institutional arguments considered apart from their philosophical foundations. Using the familiar question whether tort directives are guidance rules or liability rules as a kind of lens, or prism, this paper shows how requirements of practical reasoning undermine CRT's account of private wrongs. If tort's directives are reasons for action, placing them within the normative domain is not something we can do for free: if we are going to claim that they exert robust normative force, we must account for the grounds of this force and why we need to posit it in the face of simpler, less extravagant explanations of a relatively straightforward system of dispute resolution. CRT tries to satisfy its explanatory burden by co-opting Hart's internal point of view, but this leveraging strategy cannot succeed. The internal point of view interprets legal directives as guides to action, but in tort law, as in private law more generally, legal directives merely demand conformity, not compliance. With the connection between its interpretation of tort directives and the internal point of view thus severed, CRT faces a dilemma: it is either critically incomplete in its account of the grounds of private wrongs, or it is insufficiently responsive to the realities of legal practice. In closing, I suggest that the theory's proponents do better by resisting the temptations of middle-of-the-road metaphysics and instead recognize either the moral or the positivist roots of private wrongs.