Tort, Rawls in Tort Theory: Themes and Counter-Themes

moral epistemic demands, and philosophers' intuitions about how these demands should be applied, would be more defensible than the first-order normative claims themselves, a view that Dworkin has made much of.63 And it seems Rawls believed (and argued by example) that we might be in a better position to address thorny epistemic questions after we had done more work at the first-order level. But beyond all of these reasons, Rawls in a pragmatic, Habermasian, and pragmatist way thought that in the end what we really want is the development of a certain kind of ordering of our convictions and judgments that can play a certain role in both an internal and a public enterprise of normative construction. Undoubtedly, there is a very nuanced epistemic and metaphysical question about whether the fruits of reflective equilibrium constitute moral knowledge, but-aside from the fact that Rawls and his Quinean and post-Wittgensteinian colleagues actually had some very interesting answers to those questions-Rawls maintained a philosophically steady position that the reason-based activity of seeking reflective equilibrium was a valid-and perhaps the bestway of conducting normative theorizing.' It seems to me that these methodological ideas have importance in the normative methodological theory of common law scholarship, and here I shall focus on tort scholarship. Just as it is common for moral thinkers to demand a persuasive moral epistemology or metaphysics prior to a first-order moral theory, so it is common in tort scholarship 61. Rawls, The Independence of Moral Theory, supra note 4. 62. Id. at 286-91. 63. See Ronald Dworkin, Objectivity and Truth: You'd Better Believe It, 25 Phil. & Pub. Aff. 87-139 (1996). 64. See Rawls, The Independence of Moral Theory, supra note 4, at 288-91. 1936 [Vol. 72 RAWLS IN TORT THEORY to demand a persuasive normative theory of the function or value of tort law prior to engaging in first-order tort theorizing. An extension of the Rawlsian point would be that there is value to exploring the connections among the normative concepts and principles of tort law and ascertaining how they fit together within the law. First, it is likely to enhance our ability to render the law more coherent and predictable, both of which are virtues of a legal system. Second, it is likely to reveal, in an important sense, what the animating principles of the law are. Third, it is likely to reveal the normative questions about the validity of the law that we ought to be asking ourselves. And finally, it is likely to clarify a number of epistemic questions about the law. The point is clearer, I think, when put in the negative. Do we need to know what would justify the tort law, or what its fundamental purpose is, before we describe its normative structure? I am suggesting that the answer is no; that, indeed, Rawls's antifoundationalist argument in favor of reflective equilibrium supports a normative methodology not only of anti-reductionism, but also one that eschews the priority of justification in the analysis of law. We need not be Langdellians to appreciate Tony Sebok's point that there is a sense in which legal theory better resembles the sciences of zoology and botany than physics." Understanding the law means, in part, grasping its complexity and its variety of parallel categories and nested categories, and understanding how they all fit together. If this is correct, then the moral language of tort law does not channel thoughts into a category of fairness or responsibility, any more than into utility or efficiency. Rawls the coherentist moral epistemologist may be a better guide for torts than Rawls the theorist of distributive justice or Rawls the Kantian constructivist. Happily, Keating and Ripstein-and numerous other leading philosophers of law-have themselves displayed great interest in tort doctrine, and are not guilty of prioritizing abstract principle above the actual concepts of law, in their interpretive theorizing. Yet, as Steven Shavell and Louis Kaplow's book66 indicates, the archetype of the philosopher of tort law is the top-down Rawlsian fairness theorist. I believe that Rawls himself would have rejected such a position. D. Reasonableness and Rationality The prior counter-theme telegraphs my concern about Rawlsian theories of the reasonableness of the reasonable person standard in tort law, but it will be useful to make it explicit. Although a Rawlsian notion of reasonableness is more illuminating than a Bayesian notion 65. Anthony J. Sebok, Legal Positivism in American Jurisprudence 92-94 (1998). 66. Kaplow & Shavell, supra note 53. 2004] 1937