Key Ideas in Tort Law

Peter Cane

• Publisher: Hart Publishing
• Year: 2017
• ISBN:
  9781509909438
• Edition: 1
• Topic: Law
• Subtopic: Tort Law
• Index: Law

This book offers nine key ideas about tort law that will help the reader to understand its various social functions and evaluate its effectiveness in performing those functions. The book focuses, in particular, on how tort law can guide people's behaviour, and the political and social environments within which it operates. It also provides the reader with a wealth of detail about the ideas and values that underlie tort 'doctrine'-tort law's rules and principles, and the way those rules and principles operate in practice. The book is an accessible introduction to tort law that will provide students, scholars and practitioners alike with a fresh and engaging view of the subject.
'In this masterful and engaging survey, Peter Cane provides an array of illuminating perspectives on the law of torts, laying bare its nature, structure and functions, as well as its legal, social and political context.' Andrew Robertson, Professor of Law, Melbourne Law School

1

Nine Key Ideas

This book is about tort law—English tort law, to be more precise. Laws come in ‘legal systems’, and legal systems are traditionally associated with political communities. For instance, Scotland has (and has always had) its own legal system, as do the USA, Australia, China and so on. Laws differ to a greater or lesser extent from one system to another. For instance, US tort law is significantly different in many ways from English tort law, which is very different from Chinese tort law, reflecting the fact that the USA, England and China are different political communities and have different cultures. We might say that this book is about ‘one of many tort laws’.

It is addressed primarily to readers who know something about law in general, and tort law in particular, but who find what they do know puzzling, or simply want to know more. The book presents nine ‘key ideas’ about tort law:

KI 1 Tort law is law.

KI 2 Tort law is the law of torts.

KI 3 Each tort has two main elements: (1) conduct that is classified by tort law as wrongful and (2) one or more interests with which that conduct has interfered in ways specified by tort law.

KI 4 Torts are only one species of legal wrongs.

KI 5 Tort law is rarely enforced.

KI 6 Tort law is political.

KI 7 Tort law ‘has its uses’.

KI 8 Tort law is not ‘the only game in town’.

KI 9 Tort law is here to stay—live with it!

I expect that you will find at least some of these ideas paradoxical, if not downright weird. I hope that this will spark your interest in reading further because each of these ideas hints at important truths about tort law. They will not all receive the same amount of development, if only because some of them raise profoundly complex and difficult issues that cannot be fully explored in a book such as this. The overall aim is to provide background to what is sometimes called ‘legal doctrine’ and to breathe life into the sometimes rather bloodless words on the pages of tort books.

It is worth reflecting for a minute on this word ‘doctrine’, which might strike you as a rather odd one to use. Surely the contents of tort books are not to be compared to the contents of sacred texts such as the Christian Bible or the Muslim Koran? In fact, however, law and religion share at least one basic characteristic: both are based on authority. Just as sacred texts are invested with the authority of some holy person or supernatural God, so legal texts are invested with the authority of the legal officials and institutions that make them—notably, legislatures and courts. Devout Christians and Muslims invest their sacred texts with the authority of God and treat the contents as ‘God’s word’. In a somewhat similar way, ‘law-abiding’ people, who ‘take law seriously’, treat what its makers have said—‘the law’—as authoritative. Law, we might say, requires ‘a leap of faith’ (Gardner 2012a).^* Legal officials who implement and enforce the law must take it seriously in this way, at least when they are performing their official functions. Whatever they may actually think about the law, if law is to operate as it is meant to, they must behave as if they were true believers. However, law students and legal scholars as such do not have official responsibilities of this sort, and they are free (and may be thought to have an obligation) to stand back from the law and treat it not (only) as an authoritative regime of rules but (also) as an object of dispassionate study in much the same way as historians and sociologists of religion study the beliefs and behaviour of Christians, Muslims and so on.

The key ideas presented in this book could be summed up in One Really Big Idea (the ORBI) that (tort) law is an authority-based phenomenon that can be, and is best, understood both ‘from the inside’ as an authoritative source of guidance about how to behave and also ‘from the outside’, taking into account tort law’s character as law, the political and social environments in which tort law operates, tort law’s uses, and its competitors. From this ‘external’ perspective, authoritative legal doctrine is only one aspect of tort law’s social nature. It is law’s authority that enables it to perform the social functions we can use it fulfil. Understanding the doctrine is important, but so is appreciating the environments and contexts in which the doctrine is embedded and in which it comes to life off the page. Understanding (tort) law in all its doctrinal and social richness and diversity teaches us something about the ‘human condition’, about what it means to be human. The hope is that this book will encourage readers to begin that exciting, life-long task of discovery.

^*Throughout this book, full references to books and articles referenced in the text can be found by consulting the Bibliography at the back of the book.

2

Tort Law

KI 1: Tort law is law

How, you will immediately protest, can such a tautologous banality teach us anything about tort law, let alone about ‘the human condition’? A simple, but adequate, answer is that philosophers and lawyers have argued for millennia—and still argue vigorously today—about what law is. Law is such a complex and sprawling social phenomenon that providing a convincing account of its nature is a very tall order indeed; and various different accounts compete with one another for acceptance. Since tort law is (by definition) an aspect of the larger body of ‘the law’, it is useful to begin by focusing our attention on the whole rather than on the particular part.

Law, in the sense we are thinking about it in this book, is a product of human social life and interaction. It is, we might say, a ‘human social practice’ and an aspect of a society’s ‘culture’. We do not know when, in the course of human history, this social practice first appeared; but we can be confident that the human species has existed for much longer than what we are calling ‘law’. It has been speculated that law appears only when human social groups reach a certain size, and their activities a certain level of complexity.

Law is a social practice of a particular sort that we might call ‘normative’. At its core, what this means is that law is about how human beings living in societies should behave towards one another—what they may, ought and ought not to do; what is permitted, required and prohibited in our dealings with one another. Besides law, another very important normative, social practice is morality. Like law, the nature of morality has been a subject of intense debate for thousands of years, as has the nature of the relationship between law and morality. Therefore, what I say here on these (as on many other) topics should be treated as a point of view, not ‘the truth’ in any absolute or unquestionable sense. As a first thought, you might suppose that law and morality are obviously very different things. In fact, it turns out to be quite difficult to distinguish one from the other.

Law is a social practice in at least two distinct senses: first, it is made by humans; and secondly, it is an aspect of social life. As for the first, many people think that morality is not ‘made’ by humans. Some believe that it is made ‘by God’, while others believe that ‘true morality’ is not made by anyone and, like the natural world, exists independently of human activity. A good reason to take one or the other of these two views is that one of the uses of morality in our lives is to supply a set of ‘norms’ to which individuals are personally committed, and which they can use as a benchmark against which to assess the validity and legitimacy of demands made on them by other individuals and by society as a whole. Morality, if you like, provides individuals with a shield against what they consider to be unreasonable external pressure to behave in certain ways and not others. It is, at least, comforting to think that such ‘personal morality’ consists not merely of one’s own, perhaps idiosyncratic, views about what one may do, and ought or ought not to do, but that they are, in some sense, valid and binding for everyone. After all, unless you think that the norms you personally subscribe to are objectively correct in some sense, what right do you have to complain when other people demand that you act inconsistently with one of those norms or, conversely, to expect others to comply with them?

For present purposes, it is not necessary to answer this question because all we need to say to distinguish morality from law is that personal morality may be used as an ultimate standard against which to assess and judge the acceptability of law. Put differently, personal morality provides individuals with norms that they believe they themselves should conform to and, more importantly, that everyone else as well should conform to, regardless of what the law says. If you thought that you alone were required to conform to a particular norm, you might not think of that norm as ‘moral’.

The second sense in which law is a social practice is that it is an aspect of social life. In this sense, morality, too, is a social practice. Philosophers sometimes say that morality tells us ‘what we owe to each other’ (Scanlon 1998). We may distinguish between personal morality, in the sense explained in the previous paragraph, and ‘social morality’. One way of thinking about social morality is that it is ‘made’ by society; but it is probably more helpful to understand it more vaguely as reflecting some sort of ‘moral consensus amongst right-thinking people’. So, for instance, we may say that ‘community morality’ in England condemns the death penalty as a criminal punishment, but that community morality in the United States is seriously polarised on this issue. Social morality is not so much about ‘what we owe to each other’ but rather ‘what individuals owe to society’. Like personal morality, morality in this social sense can provide a benchmark against which to test the validity and legitimacy of the law. In that guise, morality has two main uses. First, it can be used by the powerful in society—the ‘establishment’, the ‘government’—to support the validity and legitimacy of legal demands made upon its members in the name of ‘society’. Second, by contrast, it may be used to resist legal demands made in society’s name on the ground that in making those demands, the law (and those who support it) are in conflict with community morality.

It should be clear from this that social morality and personal morality may be in conflict: personal morality may be used to assess and criticise social morality as much as to assess and criticise law. We might say that personal and social morality play different roles in people’s lives: personal morality can be used to protect individuals’ ‘personal identities’ while social morality can be deployed to protect their ‘social identities’.

So far, we have not made much progress in distinguishing between law and morality. Some people think that unlike law, morality is not ‘made’; but not everyone agrees. Law, personal morality and social morality are all normative social phenomena in the sense that they are concerned primarily with the ways we may, should or should not interact with other individuals, and with social groups and our society as a whole. However, one respect in which law does differ quite clearly from morality (whether personal or social) is that law is more ‘institutionalised’ than morality; and this difference has very significant practical consequences. Law is made by legislatures (‘Parliament’) and courts; it is implemented by officials and agencies of the executive branch of government; observance of the law is monitored by various officials and bodies with ‘policing’ responsibilities; and it is applied and enforced by tribunals and courts. Legislatures, executives, police, courts and tribunals, bailiffs and sheriffs, are the archetypal legal institutions. This is not to say that there are no ‘moral institutions’. For instance, morality that is based on an organised religion may well be made, implemented, policed, applied and enforced (in part, anyway) by religious officials and bodies—religious ‘authorities’. Also, parents, carers and guardians may function as moral officials in dealing with those under their control or with whose well-being they are charged. In general, however, such institutions play little or no part in the moral lives of autonomous adults. For most people, most of the time, there are no moral legislatures, moral police or moral courts. For instance, to say that someone is ‘acting like moral police’ is typically a form of criticism, not approval.

Because law is underpinned and supported by an elaborate institutional framework it can be used for purposes that morality is not able to promote as well, or at all. Because morality is typically not the product of deliberate human activity but emerges, develops and changes gradually and organically, its requirements tend to be too abstract and general to provide detailed guidance about right and good behaviour. For instance, a common—indeed, a probably universal—moral principle prohibits harming other people by behaving unsafely. Exceeding the speed limit when driving can be unsafe and risks harm to others as well as oneself. Therefore, the general moral injunction against causing harm by unsafe conduct applies to creating risks of harm by speeding. But what amounts to speeding? Most people’s morality would probably not provide a specific answer to this question. Rather, we look to the law for the answer—say 30 mph here, 40 mph there and 50 mph somewhere else. These are speeds that society, through its authoritative law-makers, have declared to be generally safe in the various locations to which they apply. Provided the law’s answers to such questions are consistent with the general moral principle they relate to, they become (as it were) part of morality. Law can supplement morality in this way because it has law-making institutions that can generate answers to moral questions in a way that morality cannot do (or, at least, not so efficiently and effectively). Morality, we might say, ‘depends on law’ (Honoré 1993). From this perspective, law is morality made determinate.

Take the example of taxation. Most peoples’ moral compass points them in the direction of supporting social life by paying taxes; and it may even identify general principles such as: ‘from each according to their means’—the basic idea underlying the concept of ‘progressive taxation’. But morality is unlikely to tell anyone how much to pay. It is the law that can and does do that. This example also suggests that legal supplements to morality may become so grafted onto the host that a person might feel able to criticise tax law on moral grounds for requiring them to pay too much. Putting the point generally, by virtue of its complex institutionalisation, law can give us answers to ‘moral’ questions that morality, by itself, cannot generate. An important constraint on law’s ability to do this is that the answers it provides must be consistent with the rest of a person’s morality if that person is to feel a legally-derived moral obligation to conform to the law’s requirements. Morality needs law, but law is subject to morality.

Rules of the road also illustrate another way in which law’s institutional resources enable it to supplement morality. The moral imperative not to harm others by unsafe conduct requires us all to drive on the same side of the road; but the decision whether to drive on the right or the left is, we might say, morally neutral—provided a decision is made one way or the other, morality is satisfied regardless of which side is chosen. Philosophers refer to this sort of decision as being concerned purely with ‘coordination’ of human behaviour. By contrast, for instance the choice between various possible speed limits is much more than a matter of coordination: it is not enough that everyone is required to drive at the same speed—that speed must also promote safety. People are unlikely to disagree ‘on moral grounds’ about which side of the road to drive on; but they may well disagree about the safe speed to drive at.

With this general discussion under our belts, let’s return to tort law. On the one hand, tort law, like law generally, is subject to moral evaluation. Because law and morality are both social normative practices, they cover much the same ground as one another. In some cases, morality and law may contain one and the same norm—for instance, do not deliberately cause another person physical injury unless you have some justification for doing so. In fact, many legal norms simply reflect more-or-less identical moral norms. If this were not so, the law would be open to pervasive and constant criticism for being inconsistent with morality. Stable and successful social life depends on law being largely congruent with the morality of the bulk of society’s members (Goodin 2010). We might speculate that people who know what the law requires will be more inclined to conform to it if it is consistent with their personal morality. Anyway, most people know little law. Such people, we might suppose, will be much more likely to conform to the law if what the law tells them to do is what their morality would require of them independently of the law. Many of the more general principles of tort law, as well as its more detailed rules, would strike most people as being ‘moral common-sense’ either because they more-or-less precisely reproduce moral principles or, especially in the case of more detailed rules that supplement such principles, the rules are consistent with those principles. This is not to say that tort law raises no morally controversial issues. For instance, there has been considerable debate about ‘the morality’ of awarding damages against a doctor whose negligence in performing a sterilisation operation leads to the birth of an unwanted but healthy child (Cane 2004); and of compensating the so-called ‘worried well’—people who have, for instance, been tortiously exposed to a potentially harmful substance such as asbestos without, so far, suffering any physical harm, but who worry that one day they will succumb to some asbestos-related disease, such as asbestosis, or lung cancer or mesothelioma, as a result of their exposure, and who seek recompense for the anxiety of knowing that one day they may become ill.

Such examples alert us to several other things that law can do by virtue of having the sort of institutional support that morality typically lacks. One is to manage moral disagreement. Members of modern societies disagree about all sorts of moral issues that affect their dealings with others. In some—perhaps many—cases, we can live perfectly happily together while ‘agreeing to disagree’. In other cases of disagreement, however, allowing people to follow their own personal morality regardless of what others think and do may produce social conflict and instability, and may even lead to violence. In the US, pervasive disagreement over the moral status of abortion regularly leads not only to social conflict but even to criminal behaviour such as murder and arson. Law can play an important role in preventing disagreement over ideas and values turning into dysfunctional behaviour. It is law’s authoritativeness that enables it to perform this function. People who accept that the law has authority over them may be prepared to comply with it even if it is inconsistent with their personal morality, provided that they believe this will promote beneficial social harmony. Of course, if people do not respect the law, or the law is inconsistent with some moral principle that they consider to be fundamentally important and, in some sense, non-negotiable, they may not be prepared to comply even if this would promote harmony. For them, the personal moral cost of compliance for the sake of social harmony would be too high. It is, perhaps, not easy to think of rules or principles of tort law that would raise such strong feelings: we will likely feel able to live even with those aspects of tort law with which we disagree on moral grounds in the knowledge that others, with whom we value living in social harmony, think differently.

Another area in which law’s institutional resources give it an edge over morality is that of detecting and investigating wrongs and providing remedies. Because, for most people, there are no moral police or courts, there is no one that victims of moral wrongs can call upon to help them bring to light and investigate such wrongs. As for remedies, because of the institutional weakness of morality, many moral penalt...