Can Tort Law Be Moral?
Version of Record online: 17 MAY 2010
© 2010 The Author. Journal compilation © 2010 Blackwell Publishing Ltd
Volume 23, Issue 2, pages 205–228, June 2010
How to Cite
DORFMAN, A. (2010), Can Tort Law Be Moral?. Ratio Juris, 23: 205–228. doi: 10.1111/j.1467-9337.2010.00451.x
- Issue online: 17 MAY 2010
- Version of Record online: 17 MAY 2010
According to the established orthodoxy, the law of private wrongs—especially common law torts—fails to map onto our moral universe. Four objections in particular have caught the imagination of skeptics about the moral foundations of tort law: They purport to cast doubt over the moral appeal of the duty of care element; they target the seemingly inegalitarian objective standard of care; they object to the morally arbitrary elements of factual causation and harm; and they complain about the unnecessary extension of liability under the guise of the proximate cause element. Analyzing these four prevailing arguments concerning the a-moral (and, with regard to some interpretations, anti-moral) character of tort law, I shall seek to show that the normative structure of tort law can, nonetheless, be reconstructed so as to reflect, to an important extent, our considered judgments about basic moral principles.