Private Law Theory

ABSTRACT
Most contemporary tort theory tries to show that the theory being proposed makes sense of the law of torts. So doing supposedly shows both that the theory to be an attractive account of tort law and that tort law is normatively sound. Professor Slavny forthrightly rejects this approach in his book, condemning its orientation as apologistic and Whiggish. Wrongs, Harms and Compensation instead ‘begins with a moral conception of corrective duties and builds towards questions of legal enforcement and institutional design’. Kicking interpretive aspirations to the curb enables this rigorous, subtle, and sophisticated book to develop fresh criticisms and controversial claims: that tort law’s famously objective standard of the reasonable person is morally unjustifiable full stop; that tort law demands too much in the way of reparative responsibility; that tort as we know it is unjustifiable absent the institution of insurance, and more. But kicking interpretive aspirations to the curb brings its own difficulties in tow: moral criticisms may beg the questions they claim to answer by resting on controversial and contestable substantive and methodological assumptions; moral arguments and legal doctrines may pass like ships in the night; moral criticisms and legal doctrines may pass like ships in the night, and moral criticisms may miss their marks, because they assume an inadequate account of tort law. Even so, Professor Slavny’s fine book is a welcome addition to the philosophical literature on tort. It is full of trenchant criticisms and provocative arguments, and its project opens up new terrain in tort theory.

Keating, Gregory C, Book Review, Wrongs, Harms and Compensation: Paying for Our Mistakes, by Adam Slavny, New York, Oxford University Press, 2023, 16 Jurisprudence, 172-77 (2025); USC Law Legal Studies Paper No 2604.