8 - Empirical Instrumentalist Analysis

Summary

This chapter offers an example of classic empirical instrumentalist analysis. The issue is whether American tort law should or should not adopt under the negligence cause of action a general duty to reasonably and affirmatively aid another in peril.

A traditional formalist approach to the question, one that seeks to begin with a first principle of morality that might be thought of as being part of a larger natural law and then engages in an application of deductive logic to reach a conclusion, would almost certainly resolve the issue in favor of adopting such a formal tort law duty, as has much of the developed world.

An instrumentalist analysis, in contrast, would seek to identify and weigh the practical benefits and costs of each plausible resolution of the issue, selecting as the authoritative legal rule the one that promises the best net societal benefit. The degree to which that rule accurately articulated a conventional moral or religious posture would be largely irrelevant.

This chapter develops and presents a thorough instrumentalist analysis of this fascinating and complex issue. In so doing, it provides a rich rationale for the current dominant position of American tort law.