Structure, Function, and Tort Law
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Dan Priel
Abstract
A popular view among tort theorists is that an explanation of tort law must take account its “structure,” since this structure constitutes the law’s “self-understanding.” This view is used to both criticize competing functional accounts of tort law, especially economic ones, that are said to ignore tort law’s structure, and, more constructively, as a basis for explaining various tort doctrines. In this essay, I consider this argument closely and conclude that it is faulty. To be valid, one needs a non-question begging way of identifying the essence of tort law. I argue that law’s “self-understanding” can only make sense if it means the understanding of certain people. Examining those, I conclude that the claim of structuralists is false, for there are many people who take its function to be central. I then further show that if one wishes to understand the development of tort law’s doctrine one must take both structure and function into account. I demonstrate this claim by examining the development of the doctrine dealing with causal uncertainty and vicarious liability.
Acknowledgements
I thank audiences at the University of Western Ontario and the National University of Singapore, as well as Charles Barzun, Vincent Chiao, and an anonymous referee for their comments earlier versions of this paper.
© 2020 Walter de Gruyter GmbH, Berlin/Boston
