Philosophy and the Law of Torts

By Gerald J. Postema | Go to book overview

1
Introduction
Search for an Explanatory Theory of Torts
GERALD J. POSTEMA

To an old-fashioned English lawyer, Sir Thomas Holland once said, common law is “a chaos with a full index” (Holmes 1870, p. 114). Anglo-American tort law, having evolved case by particular case, retains the common law character of its origins more than any other department of law. It is likely to strike a reader of any standard casebook to be little more than indexed chaos. Yet, at least since Holmes in the early twentieth century jurists and legal scholars have sought to identify some unifying and rationalizing themes or aims. Only lately, in the last generation or so, have philosophers signed on to this project as well. Over the past decade especially the philosophical contribution to this project has become increasingly sophisticated. As one might expect, this increased attention and sophistication has led on the whole to greater refinement of theoretical options rather than to increasing consensus with regard to one of those options. The essays commissioned for this book take theoretical reflection on the foundations of tort law in new directions. Each voice is distinctive, and there is a considerable degree of disagreement among the contributors on some key issues, but there is also more than a little agreement about the object of theoretical reflection and, in broad strokes, the appropriate methodology directing this reflection.

The primary aim of these essays is not critical or justificatory; rather they seek to contribute to the articulation and defense of an explanatory account of tort law. They seek to deepen our understanding of this corner of the law and the practice to which it gives structure. As we shall see, the appropriate methodology for this kind of study is contested. For the most part, essays in this book follow, and some of them spend considerable time defending (see essays by Stone and Coleman), a broadly “interpretive” methodology, which takes seriously, at least as a point of departure, the categories and patterns of reasoning of participants in tort practice, predominantly judges and lawyers.


I. First Attempts

With these patterns and categories in mind, it is useful to identify core elements of tort practice, even if we find later that we must refine our understanding of

-1-

Notes for this page

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this book

This book has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this book

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this page

Cited page

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited page

Bookmark this page
Philosophy and the Law of Torts
Table of contents

Table of contents

  • Title Page *
  • Contents *
  • Contributors ix
  • 1 - Search for an Explanatory Theory of Torts 1
  • Notes *
  • 2 - A Social Contract Conception of the Tort Law of Accidents 22
  • Notes *
  • 3 - Responsibility for Outcomes, Risk, and the Law of Torts 72
  • Notes *
  • 4 - The Significance of Doing and Suffering 131
  • Notes *
  • 5 - Preliminary Reflections on Method* 183
  • Notes *
  • 6 - Corrective Justice in an Age of Mass Torts 214
  • Notes *
  • 7 - Economics, Moral Philosophy, and the Positive Analysis of Tort Law 250
  • Notes *
  • 8 - Toward a Reasonable Accommodation 276
  • Notes *
  • References 323
  • Index 335
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this book

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
/ 336

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.