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«Method and Fit: Two Problems for ContemporaryPhilosophiesof Tort Law William Lucy* Cet article se penche sur deux conceptions philosophiques This ...»

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Method and Fit: Two Problems for

ContemporaryPhilosophiesof Tort Law

William Lucy*

Cet article se penche sur deux conceptions philosophiques

This essay examines two contemporary philosophical

contemporaines du droit de la responsabilit& d6lictuelle et tente de

accounts of tort law and seeks to show that they face two closely

demontrer que celles-ci soulevent deux problernes: celui de la

related problems: that ofmethod and of fit.

m6thode et celui de Iacon-espondance.

The first problem holds that the method philosophical Le premier probl&me 6mane du fait que la m6thode adopt&e accounts of tort law actually adopt is in one vital respect structurally par les conceptions philosophiques du droit de la responsabilitd similar to that used by Economic Analysis of Law. The difficulty d6lictuelle est, Aun 6gard fondamental, structurellement similaire a that arises is that these philosophical accounts of tort law cannot celle utilisce pour I'analyse 6conomique du droit. Cette similarita therefore distinguish themselves from economic accounts on the ground that they are methodologically superior. There is,infact a ine difficult6 puisque ces conceptions philosophiques du entramne droit de Is responsabilite delictuelle ne peuvent pas, sur la base degree of parity between these philosophical accounts oftort, on the d'une sup6riorit& m6thodologique, se distinguer des analyses one hand, and economic accounts, on the other, with regard to the &onomiques du droit. I1y a, en fait, un degrn de pant6 entre les way in which they accommaodate the details of, and the views of the conceptions philosophiques du droit de la responsabilit6 d6lictuelle participants in, the institution of tort law, its constitutive practices, ei les analyses 6conomiques, panit qui provient de la

–  –  –

. LL.B. (Leeds), M.Jur, M.A. (Econ) (Manchester); Professor of Law, School of Law, University of Manchester, U.K. Part of this paper was presented at the Australian Society for Social and Legal Philosophy meeting in Auckland, New Zealand in June 2006. I am grateful to the participants for their thoughts and attention and, in particular, to Peter Cane, Tom Campbell, and Jim Evans. I also impinged upon Stuart Toddington's time and patience, for which I am grateful, and owe a debt of gratitude to Georgos Mousourakis, for a reminder of old times. The comments of the McGill Law Journalreferees were also most helpful and much appreciated.

© William Lucy 2007 To be cited as: (2007) 52 McGill L.J. 605 Mode de r&f6rence : (2007) 52 R.D. McGill 605 606 MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL [Vol. 52

–  –  –

Introduction Thomas Carlyle's view of economics as a "dismal science" would surely meet resistance from proponents of what can felicitously be called "first wave" North American law and economics.' This wave of law and economics ("EAL") is that body of scholarship engaged in extending the alleged insights of neoclassical economics to all aspects of legal doctrine and procedure, including almost every aspect of the design and operation of legal systems. It is embodied in texts like Richard Posner's classic Economic Analysis of Law and more recent additions such as Robert Cooter and Thomas Ulen's Law and Economics and Steven Shavell's Foundations of Economic Analysis of Law.2 First-wave EAL's almost imperial range distinguished it from vanguard law and economics, which was concerned in the main with only obviously economic areas of legal doctrine like, for example, U.S. antitrust law.

Furthermore, both the intellectual leaders and some of the most zealous proponents of first-wave EAL extended their analyses well beyond the confines of the law. It thus seemed that there was almost no aspect of social life that this approach could not explain.' Indeed, such has been the ostensible intellectual success of EAL that even a notable nonzealot has said it is "the most important development in legal scholarship of the twentieth century."'4 1Carlyle, of course, had "political economy" in mind but this body of thought is close enough to what we currently regard as economics for the quip to be serviceable. See Thomas Carlyle, Latter-Day Pamphlets; Translationsfrom Musceus, Tieck, Richter (London: Chapman and Hall, 1903) at 37, 128.

For two helpful general treatments of the context and range of North American law-and-economics

scholarship and its various strands, see Neil Duxbury, Patterns of American Jurisprudence(Oxford:

Clarendon Press, 1995) at 301-419; Anthony Ogus, Costs and Cautionary Tales: Economic Insights for the Law (Oxford: Hart, 2006) at 1-34. That the influence of EAL has spread far beyond North America is obvious from recent scholarship. See e.g. Boudewijn Bouckaert & Gerrit De Geest, eds., Encyclopedia of Law and Economics (Cheltenham, U.K.: Edward Elgar, 2000); Jurgen G. Backhaus, ed., The Elgar Companion to Law and Economics, 2d ed. (Cheltenham, U.K.: Edward Elgar, 2005) vol. 1-4. The term "first wave" is taken from Megan Richardson, "The Second Wave in Context" in

Megan Richardson & Gillian Hadfield, eds., The Second Wave of Law and Economics (Sydney:

Federation Press, 1999) 2 at 2.

2 Richard A. Posner, Economic Analysis of Law, 6th ed. (New York: Aspen, 2003); Robert Cooter & Thomas Ulen, Law and Economics, 4th ed. (Boston: Pearson Education, 2004); Steven Shavell, Foundations of Economic Analysis of Law (Cambridge: Belknap Press of Harvard University Press, 2004). It is worth noting that Shavell moves away from the narrow wealth-maximization conception of efficiency once favoured by Posner to a supposedly more flexible and complex notion of social welfare (ibid. at 2-4, part VII). This move does not ensure that Shavell's conclusions are radically different from Posner's.

3 See e.g. Gary S. Becker, The Economic Approach to Human Behavior (Chicago: University of Chicago Press, 1976); Gary S. Becker, A Treatise on the Family (Cambridge: Harvard University Press, 1981) (offering economic explanations for social discrimination, timing of marriage, irrational behaviour, etc.). See also Elisabeth M. Landes & Richard A. Posner, "The Economics of the Baby Shortage" (1978) 7 J. Legal Stud. 323.

"4 Ackerman, quoted in Cooter & Ulen, supra note 2 at 3.

Bruce 608 MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL [VOL. 52 This essay is not directly concerned with first-wave EAL, which, in light of the previous paragraph, might seem perverse. Hopefully, the impression of perversity dissipates once the true focus of the essay is stated: its concern is with one particularly interesting noneconomic reaction to two of EAL's core claims as they are applied to tort law. The reaction in question is that of those jurists and philosophers who champion the notion of corrective justice as the key to understanding tort law.

The overarching issue in what follows is not, however, the moral or political acceptability of corrective justice, for it seems that as an intuitive or common sense matter corrective justice always has greater normative appeal than efficiency, the value EAL emphasizes. The concern is instead with the adequacy of the explanation and understanding of tort law offered by proponents of corrective justice, this issue being explored with an eye to the supposed methodological inadequacies of the EAL account.

The first argument offered here raises the issue of method-the issue of how theorists should go about constructing broadly "philosophical" accounts of tort (or any other aspect of) law-and illuminates a particular problem that it presents. The problem is neither that there is no obvious or agreed-upon method for the task of offering a philosophical account of tort law, nor that there is a plethora of such methods. Rather, the problem unearthed is that, though economic and corrective justice accounts of tort law are apparently very different bodies of thought, and though they begin from ostensibly very different starting points, they ultimately differ radically neither in their method nor in the structure of their theoretical "outputs".

Clearly, the substance of those theoretical outputs is indeed very different: the notion of corrective justice and the way in which it characterizes tort law is quite unlike the notion of efficiency and its characterization of tort. Yet the way in which these competing accounts come to the conclusion that one or other notion-either corrective justice or efficiency-informs and explains tort law is very similar. There is thus, surprisingly and contrary to first impressions, some degree of methodological parity between both economic and noneconomic accounts of tort law. This is indeed a problem if proponents of noneconomic accounts of tort law regard their enterprise as completely different from, and methodologically superior to, that engaged in by proponents of EAL.

The second argument offered here raises the issue of fit. This issue also plays a role in the first argument and is probably best regarded as but a particular manifestation of the general issue of method. The fit issue can be captured by a ' By the term "philosophical" I do not intend to distinguish accounts of tort law that draw their inspiration from either ancient or contemporary philosophy from those accounts that draw upon other disciplines. Rather, I mean only to highlight a difference between what could be called "purely doctrinal" accounts of tort law, such as we might find in some textbooks, on the one hand, and accounts that seek a "deeper" understanding of the nature or structure of the law, on the other. For present purposes, then, both the economic accounts of tort law and the noneconomic accounts featured in this essay are "philosophical", though it is often tempting to regard only the latter, because of their sources of inspiration, as "properly" philosophical.


seemingly innocuous question: which features of the area of law in question must a philosophical account accommodate? This question is explored in a manner quite different to the first argument: the second argument, unlike the first, is principally a defence of corrective justice accounts of tort law. It defends noneconomic accounts against a criticism not unlike one frequently aimed at EAL, namely, that it is a bad fit with the detail of the law. A central claim of the second argument is that this fit "problem" is to some extent bogus, that it is a mistake to expect accounts of the nonnative basis of tort (or any other area of) law to fit all or very many of the details of legal doctrine. If this claim is correct, then it presents a difficulty for corrective justice accounts of tort law. The difficulty arises when such accounts are commended because they fit the detail and structure of tort law better than economic accounts. For it seems to be the case that both corrective justice and economic accounts of tort fail to fit some features or details of the law. The principal difference between them is thus not that one account fits the detail or structure of tort law and the other does not.

Rather, they differ in the aspects of the law that they fit and those that they fail to accommodate. The problem then arises (which is not tackled here) of how to determine where the balance of explanatory advantage lies between these accounts.

Three additional points should be noted about these two arguments. First, they have a relatively narrow focus. They are developed with reference to only two, albeit exemplary, instances of noneconomic philosophy of tort law: those belonging to Jules Coleman and Ernest Weinrib.6 It is undeniable that the work of these two scholars has been both incredibly fruitful and influential in the field. While the work of other jurists in this area is also undoubtedly significant, that work is often an extension of or engagement with the pioneering efforts of Coleman and Weinrib. Their work is thus the focal point of what follows. Second, the two arguments are closely related and, in fact, illuminate different aspects of the same general issue. Since these arguments are not therefore genuinely independent, it is no surprise to find each to some extent featuring in the other. They have been separated here only to aid exposition.

The third point is that the two arguments need not assume that there is still intellectual life in first-wave EAL, but they do. This is to deny neither that there are some difficulties with this body of scholarship, nor that this wave of EAL might be being slowly submerged by an altogether less monomaniacal and zealous form of law-and-economics thinking.7 Neither point completely undermines the claim that first-wave EAL attempted to illuminate the nature and underpinnings of large chunks of private law in general, and tort law in particular, in an admirably clear, general, L. Coleman, Risks and Wrongs (Cambridge: Cambridge University Press, 1992); Jules 6 Jules

Coleman, The Practiceof Principle:In Defence of a PragmatistApproach to Legal Theory (Oxford:

Oxford University Press, 2001); Ernest J. Weinrib, The Idea of Private Law (Cambridge: Harvard University Press, 1995).

7 See especially Michael J. Trebilcock, The Limits of Freedom of Contract (Cambridge: Harvard

University Press, 1993). See also Cass R. Sunstein, ed., BehavioralLaw and Economics (Cambridge:

Cambridge University Press, 2000).

610 MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL [Vol. 52 rigorous, and apparently social-scientifically serious way. Nor do these two points undermine another obvious truth. At the time the first wave of EAL scholarship was taking shape, many of its claims were regarded as prima facie compelling by noneconomic theorists. Indeed, it is no great exaggeration to say that the attempt to take these claims seriously brought the noneconomic accounts of tort law considered here into existence. It is more than likely that, without EAL, the two noneconomic accounts examined here would lack the salience they currently have.

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