Rights Gone Wrong: The Failure of Fundamentalist Tort Theory

This article challenges the notion that tort law must be explained and justified either by reference to economics or by appeals to a particular conception of rights or justice. Section I suggests that, far from aiding an explanation or evaluation of the law of torts, such statements of tort law theory are becoming more like affirmations of fundamentalist religion, where theorists flaunt their piety by providing an ever purer statement of the faith. But, rather than challenge the values which underlie these approaches, this article takes the claims which each school of thought and subjects them to an analysis according to their own statements of faith. Section II of this article treats a recent book by English law professor Robert Stevens as a case study in the flaws of fundamentalism. Among those flaws is a tendency to re-engineer the case law to make the theory fit. This re-engineering often has implications which are then overlooked and which are actually the very opposite of what was intended. Stevens sees individual rights as the foundation of tort law. Yet his analysis actually turns out to have the perverse effect of downgrading individual rights to such an extent that his rights model turns out not to protect individual rights at all but to legitimize their destruction. Section III attempts to see whether Stevens's analysis can be rescued at any level. Using a methodology originally developed by the German political philosopher and sociologist, Max Weber, it argues that the best way to understand Stevens's analysis is actually as a purely theoretical construct or "ideal-type" which facilitates both comparison with other explanations and the identification of trends in tort law. Taken this way, however, it becomes clear that the law of torts is actually moving away from anything resembling Stevens's model. Section IV offers an equivalent critique of the fundamentalism of economic analysis, which worships at the altar of economic efficiency. It also fails entirely to address differences between jurisdictions, such as those which still recognize joint and several liability as compared to those where that doctrine has been abolished. Moreover, it is shown that the re-engineering of legal doctrine here depends on a confusion of micro- and macro-economics. Ironically, this re-engineering has the perverse effect of promoting a view which is the very opposite of Adam Smith's "invisible hand". As a result, the theory has more in common with the views of early Soviet legal theorists than with what could reasonably be expected of advocates of a free market. Section V opens by acknowledging the importance of economic factors and of ideas of rights or justice, but rejects the adoption of a simple compromise between the two theoretical schools as hopelessly compromised. It emphasizes that it is the form of law which is the law's distinguishing characteristic, and which creates for itself a degree of autonomy. It argues that it is the interplay of the form of law with external factors such as economics and ideas of rights which drives changes in the law of torts. The section concludes by advocating a new approach to tort law theory, which takes in these two dimensions - plus a third dimension of time - and which pushes the need to explain trends in tort law to the top of the scholarly agenda.