Benjamin Shmueli, ‘Legal Pluralism in Tort Law Theory: Balancing Instrumental Theories and Corrective Justice’

Unified-monistic theories of tort law focus on a single goal, usually corrective justice, distributive justice, or optimal deterrence. Unlike these approaches, mixed-pluralistic theories attempt to balance between various goals of tort law by integrating several of the considerations underlying these different goals. These theories of legal pluralism reflect ideological diversity, in this case between different theories of the same legal system. This Article discusses the challenge of legal pluralism to settle the possible collision between different goals of tort law within the framework of tort law theory.

Starting from a position of support for the mixed-pluralistic thesis, this Article first identifies the advantages this approach offers and then proposes a new mixed-pluralistic approach which is adapted to the multitude of significant changes that have affected contemporary common tort law in recent years. This new approach divides (mostly negligence) issues into two principal categories based on the profile of the defendant and the nature of his tortious act, striking a balance between the various goals of tort law, as the situation warrants. Thus, the suggested mixed-pluralistic approach offers a new and actual balance between corrective justice and instrumental theories – that is, distributive justice and optimal deterrence. It balances between deontological theories, which are interested in the moral aspect of a tort action, and utilitarian theories, which are interested in the consequentialist outcome of a tort action. The proposed approach will be implemented through the presentation of a number of tort issues, some traditional and classic and others modern and novel.

The suggested approach challenges the study of both law and economics and corrective justice by trying to delimit their dominance as sole goals. It also corresponds with other pluralistic approaches to the study of torts.

Benjamin Shmueli, ‘Legal Pluralism in Tort Law Theory: Balancing Instrumental Theories and Corrective Justice’, University of Michigan Journal of Law Reform, Volume 48, Issue 3 (2015).

First posted 2015-05-05 06:40:14

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