Personal Injury Assessment: Human Nature and Social Order

Abstract

The evaluation of bodily injury is one of the most complicated areas of tort law. How should the value of a human limb be determined, and what are the relevant parameters for doing so? Rules for appraising personal injury invite a review of fundamental value-based questions about human nature and social structure. For example, one must contemplate whether the body’s organs have an intrinsic value embedded in them, or whether an instrumental value to achieve benefits; is it appropriate to estimate the value of human body organs through the lens of the earning capacity latent in them, or perhaps as part of one’s dignity and social status; is the rich person’s hand equal in the eyes of tort law to poor person’s hand, a man’s hand to a woman’s hand or there is a distinct value for the limbs of each individual. This article compares the approaches of three legal systems: Roman law, Jewish law and modern (American) law. I argue that each of these three legal traditions developed distinct methods for evaluating bodily injury, which reflect unique conceptions of human nature and social structure. For that purpose, a careful analysis of both monetary damages and non-pecuniary damages according to these legal systems is needed, with emphasis on their socio-economic ramifications. An in-depth examination of the arrangements offered by these legal traditions enable us to station a critical mirror to modern society.