The Idea of Complementarity as a Philosophical Basis for Pluralism in Tort Law

Abstract

Abstract This chapter rests upon certain premises that are controversial: it supposes both the existence and desirability of multiple aims and functions in the framework of tort law. The idea of ‘complementarity’ in the specific sense formulated by its founder, the Danish physicist Niels Bohr, assumes the inherently contradictory nature of the various aims and functions of the law of torts. Thus, to the extent that the rules, principles, and aims of tort law are viewed as inconsistent or ‘incoherent’, the concept of complementarity provides a justificatory foundation for this normative reality. Pluralism itself is viewed differently by the various monistic theorists. It should be noted, however, that the contradictions and incoherencies inside tort law, as revealed by Jack Balkin, are not identical with Ernest Weinrib’s concern for formal consistency. Balkin’s central opposition of individualism and communalism does not square with Weinrib’s formal dichotomy of corrective justice and distributive justice.