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 paper explores how and why tort law is distinctly valuable to the liberal democratic state. In the new edition of The Unity of the Common Law, Brudner argues for "a duty on courts to administer a private-law (corrective justice) model of civil liability and a duty on legislatures to retain a private-law regime for rectifying wrongful losses alongside legislative schemes for no-fault social insurance". This paper shows that, contrary to first impressions, Brudner’s arguments underplay tort law’s intrinsically relational character, its fundamental connection to the facilitation and stabilisation of interpersonal obligations, including the social relations of which these form part. Drawing on the work of Stephen Darwall, I outline an alternative understanding of tort law, foregrounding its specifically relational character. This understanding, I contend, succeeds in uncovering tort law’s contribution to securing the social foundations of a legitimate political order.