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.
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