Private Law Theory

ABSTRACT
Instrumentalist ideas have long been prominent in torts scholarship. Since the rise of legal realism, discussions of deterrence, compensation, the minimization of accident costs, and the distribution of losses have dominated scholarly discourse. In the past several decades, however, wholesale rejections of instrumentalist tort theory have arisen. The most uncompromising of these views rallies around the avowedly formalist battle cry that tort is ‘private law’. Ernest Weinrib’s elegant and influential book, The Idea of Private Law, declares its allegiance to that thesis in its title, and the idea figures almost as centrally in Arthur Ripstein’s recent and important Private Wrongs. Theorists who rally around the banner of ‘private law’ claim that tort law’s governing principles of right and responsibility tumble out of the field’s characteristic legal form. Law, as they understand it, is constitutive of just relations among persons, not an instrument for the pursuit of independently valuable ends. For scholars like Weinrib and Ripstein, ‘private law’ is the Kantian idea of reason that makes our actual law of torts intelligible. The claim that torts is a law of wrongs where persons bring claims in their own names for harms that they have wrongly suffered against those allegedly responsible for those wrongful harms is powerful and persuasive. The claim that the obligations persons owe one another in tort are obligations owed among equal and independent persons is likewise compelling. But theorists of tort as ‘private law’ overshoot the mark by both asking and making too much of form. They ask too much of form when they attempt to make sense of the private law of torts solely in terms of form – eschewing all talk of interests. We cannot understand or justify the law of torts without attending to the interests that it protects. In tort, as else-where, rights and the duties they ground protect important individual interests. For example, it is our interest in the physical integrity of our persons that grounds the law of negligence … (more)

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Gregory C. Keating, ‘Form and Substance in the “Private Law” of Torts’, Journal of Tort Law, https://doi.org/10.1515/jtl-2020-0012. Published online: May 21, 2021.

First posted 2021-05-25 16:15:45