Adam Slavny’s Wrongs, Harms, and Compensation: Paying for Our Mistakes rejects a basic premise of most contemporary tort theory. It renounces all aspiration to interpretive adequacy and holds contemporary tort law up to rigorous philosophical scrutiny. The results are invariably stimulating, usually illuminating, and often persuasive.
Most contemporary tort theory tries to show that the theory being propounded makes sense of tort law. Economic analysis, for example, can be, and sometimes is, presented as merely a positive account of the law of torts—as a demonstration that “common law legal rules are, in fact, efficient.”1 This positive claim can be distinguished from the normative claim “that common law legal rules ought to be efficient.”2 Sometimes economic theorists of tort do renounce all claims to normativity and insist that their views are purely positive. And sometimes they do the reverse: they renounce all interest in making sense of the law that we have and declare themselves interested only in the law as it should be.3 More often than not, though, economic theorists of tort are read to claim that tort law both is and should be efficient.
Corrective justice theorists, for their part, usually claim that economic analysis does not capture what tort law is about—namely, wrongs and their repair—whereas corrective justice theory does. That tort is a law of wrongs and repair is, for corrective justice theory, both a vindication of the theory and a vindication of the legal institution. Civil recourse theorists, in turn, are usually read to assert that their thesis that the commission of a tortious wrong gives rise to a liability to recourse—and not to a duty of repair—is both positively and normatively superior to the corrective justice account. Tort theory is hardly unique in this respect. Much bread-and-butter scholarly commentary is similarly inclined to interpret the law as best it can and improve the law as much as seems possible.
Professor Slavny’s book finds the practice of proving a normative theory’s value by showing that it matches extant law troubling in an obvious but important way. So practiced, tort theory “tends to have an apologistic bias.” (P. 2.) Slavny therefore declares tort theory’s fealty to tort practice to be unwarranted and unwise. It begs the question to assume, at the outset, that contemporary tort law must be, on the whole, justified or justifiable. Theories of justice, after all, don’t normally begin by assuming that our existing political institutions are, on the whole, basically just. Theories of justice normally stand in critical, not apologetic, relation to present institutions. They are open to the possibility that our institutions might be unjust and unjustified. A theory of justice that set out to vindicate itself by showing its congruence with our present practices and institutions would open itself up to the charge that it was more apologetic ideology than critical philosophy. When contemporary tort theory is judged by the standards of serious philosophy, it appears indefensibly Whiggish.
Wrongs, Harms, and Compensation therefore “begins with a moral conception of corrective duties and builds towards questions of legal enforcement and institutional design.”
Its approach pays off in unconventional claims and arguments. For example, the book argues that tort law tends to assign insufficient weight to the claims of tortious wrongdoers. The famed objectivity of negligence law is one case in point. Another is the basic remedial responsibility of tortious wrongdoers to repair the harm that they have wrongly inflicted. Standard negligence doctrine says that the subpar must exhibit the competence of the normal and that the momentarily careless are liable for massive loss. Mainstream tort theorists are aware that these responsibilities are demanding and stringent, but the interpretive bent of mainstream theory tends to rule out the possibility that these basic features of tort doctrine may be morally unjustifiable, full stop.
Wrongs, Harms, and Compensation, by contrast, argues that the legal wrong of negligence may simply fail to track any “coherent form of wrongdoing.” (P. 76.) Wronging itself—not just blameworthiness—is capacity-sensitive, Slavny argues. Ought, after all, implies can. As a matter of morality, we can’t have duties that we are incapable of discharging. Therefore, the “moral wrong of negligence is sensitive to capacity and cost . . . it is fully individualized. It is defined by what can be reasonably expected of a given individual in a given situation, not what can be reasonably expected of some other individual in that situation . . .” (P. 76.)
Secondary duties of repair, for their part, “should not be completely out of proportion to the seriousness of the wrong.” Consequently, tort law’s basic remedial responsibilities are justifiable only insofar as tort is backed by insurance. Only the cushioning effect of insurance makes tort law’s demands on tortfeasors reasonable and proportionate. While it is conventional wisdom that tort law in action is very much about liability insurance, only very rarely is the availability of insurance considered a condition of the moral justifiability of tort liability. Wrongs , Harms, and Compensation, however, argues that “the [tort] system as a whole could not be justified without [liability insurance].” (P. 180.) Its arguments stand the conventional wisdom among corrective justice theorists on its head. Corrective justice theorists usually regard insurance merely as a permissible means of discharging obligations imposed by the law of torts.
Slavny argues both that insurance makes tort liability bearable by tortfeasors and that purchasing liability insurance is an obligatory extension of the duties of care that we all owe to one another. “We should not be permitted to imperil our future victims by failing to take reasonable precautions against the possibility that we will be unable to fulfil our duties towards them. This would itself be a wrong, a form of unreasonable risk imposition not unlike the kind involved in negligence.” (P. 185.) From here, Slavny goes on to reject the corrective justice conviction that tort liability and compensation schemes are wholly different, and independent, institutions. If taking reasonable precaution to avoid wrongly harming other people requires purchasing insurance so that we can discharge the obligations of repair that we will incur in the event that we do inflict wrongful injury, then mandatory compensation schemes are at the very least permissible ways of discharging our tort duties.
Wrongs, Harms, and Compensation ranges widely. It analyzes tort’s relation to administrative alternatives incisively, and its discussion of the relations between tort, corrective justice, and distributive justice, is excellent, original, and of general relevance. Anyone interested in contemporary tort law would benefit from studying Slavny’s arguments.
To be sure, Slavny’s “foundationalist” methodology is not without its problems. For one thing, the choice of a starting point outside of tort is anything but obvious. Slavny is a partisan and a practitioner of a particular philosophical approach. He is reductive. He builds from the ground up by asking what individuals owe each other as a matter of morality. Legal institutions are upshots. But it seems equally plausible to think that theorizing about legal institutions must place institutions front and center. Starting from this assumption is likely to lead to a different endpoint. For another, to criticize legal doctrines and institutions persuasively, normative arguments, counter-factual thought experiments, and hypotheticals must pick out the moral considerations relevant to the law that one is assessing. This is a difficult and delicate matter. Sometimes, the book’s arguments and the law to which they purport to speak pass like ships in the night.
Nevertheless, this is original, courageous, important scholarship. Even in comparison with criminal law theory, contemporary tort theory is peculiarly preoccupied with proving its validity by vindicating tort law. This risks blindness. By kicking interpretive aspirations to the curb, Wrongs, Harms, and Compensation delivers fresh insights.
- Lewis Kornhauser, The Economic Analysis of Law, Stan. Encyclopedia of Phil.
- Id.
- Lewis Kaplow’s and Steve Shavell’s Fairness Versus Welfare, 114 Harv. L. Rev. 961 (2001), takes this approach.
