Tort Law Recovered? From Alan Brudner’s Revised Case for Tort Law to the Ethical Underpinnings of Liberal Democracy

Abstract

Engaging with Alan Brudner’s case for tort law, this article explores how and why tort law is distinctly valuable to the liberal democratic state. It shows that, contrary to first impressions, Brudner’s arguments underplay tort law’s intrinsically relational character, its fundamental connection to the facilitation and stabilization of interpersonal obligations, including the social relations of which these form part. The article outlines an alternative understanding of tort law, foregrounding its specifically relational character. This understanding, it is contended, succeeds in uncovering tort law’s contribution to securing the social foundations of a legitimate political order.