Philosophical Foundations of Tort Law

By David G. Owen | Go to book overview

Foreword
Why Philosophy Matters to Tort Law

DAVID G. OWEN*


I. A BRIEF INTELLECTUAL HISTORY OF TORT LAW AND PHILOSOPHY

The philosophy of tort law in some ways is very old. As revealed in several of the essays here philosophical examination of tort law problems is conventionally traced to Aristotle's discussion of corrective justice in Nicomachean Ethics written some 2,500 years ago. Aristotle, however, provided little more than a skeletal description of the law's 'corrective' function of rectifying torts--wrongful interferences with the holdings of another--and a similarly skeletal description of how this corrective function fits together with the law's broader function of allocating a society's scarce resources among its members according to prevailing principles of distributive justice. Moving forward in time, one begins to see some fleshing in of Aristotle's corrective justice skeleton, first, by Thomas Aquinas and his medieval followers, and then by various natural law theorists of the Enlightenment, such as Hugo Grotius and Samuel Pufendorf. Late in the eighteenth century, Immanuel Kant expounded the powerful ethic of equal freedom, which he conceived to be the moral foundation of rights, justice, and law. Explicitly or implicitly, Kant's moral and legal philosophy has become a pillar for much of modern tort-law theory. Although Kant's equal freedom ethic added significant substantive content to Aristotle's corrective-justice structure, his elaboration of that content remained general and abstract. In searching for more specific content, one may travel forward in time into Anglo-American jurisprudence, where one might next note the publication in 1881 of Oliver Wendell Holmes Jr. The Common Law, arguably the first 'modern' effort to unravel fundamental problems of the common law, including tort law, in basic philosophic terms. But the bridge between tort law and philosophy remained thereafter but lightly travelled for many decades.1

____________________
*
Byrnes Scholar and Professor of Tort Law, University of South Carolina. Comments by Stephen Perry, Ernest Weinrib, and Richard Wright helped me frame the historical discussion in section I. Pat Hubbard did not comment on any section.
1
One such traveller was Harvard Law School dean, James Barr Ames:

'[T]he spirit of reform which during the last six hundred years has been bringing our system of law more and more into harmony with moral principles has not yet achieved its perfect work. It

-1-

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