The Significance of Doing and Suffering
MARTIN STONE *
Nor should we make the same demand for an explanation in all cases. Rather, it is sufficient in some cases to have “the that” shown properly. This is so where “the that” is a first thing and a starting point.
Aristotle, Nicomachean Ethics, 1098b1
Negligence cases constitute the largest item of business on the civil side of the nation's trial courts. Yet we lack a theory to explain the social function of the negligence concept.
Posner, A Theory of Negligence
Modern tort law looks out on a situation which is ubiquitous in human affairs and inherent, as a possibility, in the fact of human action: a situation in which the actions of one person are connected to the misfortune of another. Nowhere does the law attach significance to this just as such. Rather, throughout the world today, tort law asks: Is the plaintiff's suffering a consequence of some impropriety on the defendant's part, or is it a mere misfortune, a case of bad luck? 1 As “mere misfortune, ” the plaintiff's suffering would be without legal significance, something on par with a natural event, like a destructive turn in the weather. But if there is impropriety - if, for example, the likely prospect of the plaintiff's suffering makes it “negligent” for the defendant to have acted as she did - then the plaintiff is entitled to receive, and the defendant obligated to pay, compensation.
This paper concerns the terms in which we might understand tort law - that is, make sense of it by exhibiting the reasons in play in it. 2 I argue (1) that contemporary functionalism fails to make sense of central features of the law, and (2) that the significance of what Aristotle calls “corrective justice” can come into sharp focus against the background of an understanding of the way functionalism fails. 3 To grasp the source of the trouble with functionalism is to see the need for an account of tort law which attaches direct normative significance to the relation that exists between two persons whenever it appropriately can be