In addition to serving as the editor of Philosophical Foundations of the Law of Torts (OUP 2014), John Oberdiek has provided his own contribution, an excellent and penetrating chapter entitled Structure and Justification in Contractualist Tort Theory. (Full disclosure: John Goldberg and I have a co-authored chapter in the volume.) In it, Oberdiek offers a careful, original, and important analysis that brings together tort theory and the moral and political theory of contractualism, especially as developed by today’s leading contractualist, Thomas M. (“Tim”) Scanlon.
Economic theories of tort law derive from a roughly utilitarian framework for thinking about normative questions and numerous corrective justice accounts derive from a broadly-speaking Kantian framework. If one felt stuck between economic accounts that were too reductive and corrective justice accounts that were too focused upon abstract Kantian rights, one might ask whether social contract theory has anything to offer tort theory. George Fletcher’s Fairness and Utility in Tort Theory answered “yes,” and famously contributed Rawlsian ideas to tort theory. As Oberdiek helpfully explains, Gregory Keating’s work over the past twenty years has developed strong Rawlsian themes in tort theory in a more extensive and defensible manner than Fletcher’s evocative but concededly underdeveloped article. In negligence, products liability, and the law of nuisance, for example, Keating has admirably constructed a tort theory based on Rawlsian themes of fairness and reciprocity.1
Oberdiek begins his chapter with a critique of Keating that, while not purporting to break new ground,2 is both deep and fair-minded. For two interrelated reasons, the fit between tort law and Rawlsian distributive justice is awkward. First, as corrective justice theorists, including Ernest Weinrib and Jules Coleman, have long emphasized, if there is a notion of justice at work in tort law it appears to be one of corrective, not distributive justice. Second, Keating’s Rawlsianism seems unable to provide an adequate account of the bipolarity of tort law. While Oberdiek rightly recognizes that Keating treats tort duties and rights as interpersonal rather than impersonal, he argues that because Keating’s interpersonality comes from the relationship of each person to every other person (what Keating calls “omnilateralism”), it cannot really capture the bilateralism at the core of tort law. The depth of Keating’s work in tort theory leads me to be unsure whether Oberdiek’s critique is ultimately sound. In particular, one wonders whether Keating, in emphasizing omnilateralism, means only to emphasize that one cannot really ascertain what level of care person A owes to person B without taking into account what person A owes to everyone else; if so, Keating’s position would be that such omnilateralism does not undermine the relationality of the duties for the purposes of capturing bipolarity. Nonetheless, Oberdiek is correct to perceive in Keating’s tort theory a hostility to the kind of relationality typified by Palsgraf, a relationality that Weinrib and many corrective justice and civil recourse theorists have deemed central to the bipolarity critique.
In search of an even more basic connection between social contract theory and tort law, Oberdiek invites us to turn our attention from Rawls to Scanlon. Scanlon, a student and longtime colleague of Rawls, is among the most important American thinkers in moral theory of the past several decades. His classic 1982 article Contractualism and Utilitarianism 3 virtually coined the term, and several books published over the past twenty years4 have provided a sustained philosophical framework for a range of moral questions. Unlike Rawls’ magnum opus A Theory of Justice, which is first and foremost a work of political philosophy, Scanlon’s What We Owe to Each Other is above all a work of moral philosophy.
The central affirmative claims of Oberdiek’s chapter, in support of his overall thesis that contractualism provides a strong foundation for a normative theoretical account of tort law, are: (1) The promise of contractualism as a foundation lies, in part, in its capacity to justify primary duties in tort law, not simply remedial duties; (2) Contractualism is especially well-suited to be a foundation of tort theory’s accounts of duty, because the structure of justification within contractualist theories matches the Palsgraf-like, relational, structure of duties within tort law—justification is fundamentally to a subject, and justification is fundamentally personal (as opposed to impersonal). Because I find both of these claims to be quite plausible, I am disposed to share Oberdiek’s view of the promise of contractualism.
The moral wrongfulness of an action, on Scanlon’s view, turns on whether it would be prohibited by a set of principles that no person could reasonably reject. Like other social contract theorists, Scanlon utilizes a version of the thought experiment of persons coming together to craft a way of living together. The aim is not, however, to model a state or to give birth to political authority or a legal system. The aim is to conceive of a set of norms of conduct that each may reasonably accept as appropriate for governing their relations to each other. Part of what it means to decide an action is morally right or wrong is to make a judgment about how that act would measure up against a set of principles no one could reasonably reject. More importantly, understanding wrongfulness requires conceiving of what it would mean to try to justify the act in question to the person who might complain of such acts. To grasp what it would mean for an act to be wrongful is to recognize that the other person would not be expected, reasonably, to accept a set of norms that allowed that action. More precisely, persons would reasonably reject any set of principles for living together that would allow such an action.
Oberdiek’s principal focus is on the close fit between Scanlon’s conception of justification as justification-to-the subject, on the one hand, and tort law’s relationality, on the other. Unlike the omnilateralism of Keating (on Oberdiek’s account), the relationality of duties is to another person—a victim. Unlike the Kantianism of Weinrib and the corrective justice theorists, the focus is on the wrongfulness, not on the requirement of a remedy for the wrongfulness.
At the risk of displaying ingratitude, overdemandingness, and hypocrisy all at once, I would point out three respects in which Oberdiek might have said even more than he does in his fine chapter. First, I fear that too much energy is spent on the Palsgraf-like relationality of wrongs in tort law, because others have developed that aspect of relationality in tort, and Scanlonian contractualism is likely to contribute in more distinctive ways. This is an ungracious comment, coming from me, because I have incessantly emphasized relationality in my own work (which Oberdiek very generously cites) and because contractualism’s “justification to” is arguably an especially good fit with the sense of relationality that I have emphasized. It is also perhaps overdemanding to ask Oberdiek to recognize that there is now a wide range of scholars—including some from moral theory proper, such as Stephen Darwall—and some from law and economics—including Mark Geistfeld—who have offered foundational theories that can explain the relationality of tortious wrongs. Both Darwall and Geistfeld, as well as Jason Solomon, John Goldberg, and myself, have offered foundational explanations of “justification-to.” And, of course, Weinrib, Arthur Ripstein, Coleman, and Stephen Perry have arguably done so as well.
In the third place—and perhaps somewhat hypocritically on my part—I would suggest that Oberdiek talks the talk more than he walks the walk when he touts contractualism because of its capacity to help make progress on the content of tort law’s primary duties. A complaint sometimes lodged against corrective justice and civil recourse theories is that they have failed to offer any such account, and instead merely take as given the substance of tort law. To the extent this complaint is valid, one wants to ask “Can contractualism provide the basis for a response?” I am not so sure. Perhaps a person could reasonably reject a system of law that forbids trespass to land or slander or public disclosure of private facts or negligence. After all, there would be benefits to a more permissive system than the one that we now have. What would make it unreasonable to get rid of these legal norms? To what extent does a contractualist framework like Scanlon’s allow us to understand the shape of the norms of conduct found in tort law?
Oberdiek is of course candid about the fact that he has merely sketched an outline for a contractualist tort theory; having done so with great depth and persuasiveness is a significant achievement. Let me summarize by saying why many scholars should find contractualism attractive: (1) Scanlon’s contractualism, unlike Weinrib’s Kantian approach, is this-worldly, material, and adjusted to real world motivations; (2) the conduct-guiding and primary normativity of tort law is the focus, not the remedial aspects; (3) unlike the work of Goldberg and myself, Oberdiek’s contractualism is openly normative, not guardedly interpretive.
(This essay reviews a paper that discusses the work of Gregory Keating. In his capacity as an editor of this Jotwell section Professor Keating participated in the editing of this essay.)
- Oberdiek’s critique of Keating is focused principally upon Gregory C. Keating, A Social Contract Conception of the Tort Law of Accidents, in Philosophy and the Law of Torts (G. Postema ed. 2001). Keating’s body of Rawlsian-influenced tort theory is at this stage quite broad and deep. See, e.g., Gregory C. Keating, Reasonableness and Rationality in Negligence Theory, 48 Stan. L. Rev. 311 (1996); Gregory C. Keating, Rawlsian Fairness and Regime Choice in the Law of Accidents, 72 Ford. L. Rev. 1857 (2004); Gregory C. Keating, Strict Liability Wrongs, in Philosophical Foundations of the Law of Torts (J.Oberdiek ed. 2014). [↩]
- Oberdiek specifically quotes Gerald Postema’s critique of Rawlsian tort theory in Gerald J. Postema, Introduction: Search for an Explanatory Theory of Torts, in Philosophy and the Law of Torts 7 (G. Postema ed. 2001) and sets out to evaluate that critique. [↩]
- T.M. Scanlon, Contractualism and Utilitarianism, in Utilitarianism and Beyond (A. Sen & B. Williams eds. 1982). [↩]
- See esp. Thomas M. Scanlon, What We Owe to Each Other (1998) and Thomas M. Scanlon, Moral Dimensions: Permissibility, Meaning, Blame (2008). [↩]