Can pluralistic legal theories be unified around a common framework? That’s the tantalizing question that Ronen Perry tackles in his recent essay. Perry is searching for a holy grail—a unifying principle for all pluralistic theories of law. Even if the holy grail does not exist, the quest itself proves interesting and worthy of consideration.
Modern tort theorists have advanced at least three rationales for the tort system: deterrence, individualized justice, and compensation. Under a deterrence-economic perspective, the goal of the tort system is to prevent accidents in an efficient manner. On the other hand, an individualized justice theorist views the tort system as a way to remedy a wrong caused by one to another. Finally, under a compensation or distributive justice theory, tort law’s goal is to spread loss and provide compensation to victims of tortious injury. But few scholars accept these multiple theories, and instead focus on their own singular rationale.
Perry begins his essay with a forceful critique of monist theories. Using a positive perspective, Perry contends that no one theory can account for the many contradictions of law. Strict liability for abnormally dangerous activities appears incompatible with individualized justice, but consistent with compensation and loss spreading. Causation, on the other hand, fits with individualized justice, but not with deterrence.1
Faced with a legal concept that conflicts with a unifying principle, the monist scholar, according to Perry, must take one of three problematic approaches: (1) ignore the contradictory concept, (2) argue that the contradictory concept is not really part of the law after all, or (3) assert that the contradictory concept is flawed and needs replacement. Perry further contends that the way the law develops renders it incapable of explanation by a monistic theory: The law develops over time by different lawmakers who promote different, conflicting values. Turning to the normative sphere, Perry is less critical of normative monistic theory, but contends that it is undesirable to reject values that society considers important “solely for the sake of coherence.” (P. 4.)
Now to the quest. Complementarity is a concept formulated by Danish physicist Neils Bohr to explain wave-particle duality in quantum mechanics. Borrowing this scientific concept, Izhak Englard has argued that complementarity provides an underlying framework for all pluralist theories of tort law. According to the principle of complementarity, a complete and full understanding of reality entails a combination of two conflicting models: “each provides a different and incomplete explanation for reality, and only together do they capture the whole picture.” (P. 5.) As applied to tort law, the argument goes, complementarity can connect mutually exclusive principles such as corrective justice and distributive justice.
In Part I, Perry rejects the idea of complementarity as the holy grail. First, Perry argues that, as defined by Bohr, the principle of complementarity applies only to dualism—the classic yin and yang. Because tort law theorists have proffered more than two incompatible goals, complementarity does not apply. Second, Perry points out that complementarity cannot work for legal theory because of the nature of the interaction between the conflicting models. Under the principle of complementarity, the competing scientific models (e.g., wave and particle) simultaneously co-exist, but cannot be simultaneously observed. Conflicting legal goals, on the other hand, are often partially fulfilled in a given legal doctrine—thus, simultaneously observed, but not fully achieved. Finally, Perry contends that complementarity was developed to account for positive, scientific theories, and therefore is inappropriate for normative legal theories.
Having rejected complementarity as a unifying principle, Part II continues the search for a holy grail that will provide a unifying framework for all normative pluralistic legal theories. Perry advocates the maxim timeo hominem unius libri—I fear the man of one book—as this unifying principle. Perry asserts that the “man of one book” is the monist, the “intellectual fundamentalist.” (P. 14.) In a sharp critique of monist theorists, Perry argues the monist should be feared “because viewing a phenomenon from a single perspective yields a partial, simplistic, and possibly flawed impression.” (P. 15.) As a normative matter, Perry rejects monist theory because it ignores relevant and valuable goals: “Each of the competing values or goals is legitimate and important in the eyes of many… And as all are legitimate and important, none deserve disregard, even if its precise weight might be debatable.” (P. 16.)
Perry closes by concluding that timeo hominem unius libri is as close to the grail as one can come. Pluralistic theories thwart any further unifying principle because pluralists diverge on both the values that the law does or should promote as well as on the method for balancing competing values. Thus, according to Perry, the only common ground among pluralistic legal theories is the rejection of monism itself.
Even if the holy grail does not exist, there is value in the search. Perry’s essay illuminates a thought-provoking question: Can we harmonize the competing theories of tort law around any central framework? Perry’s essay suggests that he is not going to pursue the question any further, having concluded that no common ground can be found. Others, however, may take up the quest and further illuminate the harmony that can be found among pluralist theories. By thoroughly eliminating complementarity as a unifying principle, Perry provides a valuable contribution to the ongoing debate about the rationales of tort law.
- For a thorough discussion of the conflict between torts rationales and torts doctrine, see Christopher J. Robinette, Torts Rationales, Pluralism and Isaiah Berlin, 14 Geo. Mason L. Rev. 329, 354-58 (2007), available at SSRN.