18 - Tort Law and Its Theory

Summary

For the best part of fifty years, theoretical reflection on the law of torts has been afflicted by a schism between ‘economic’ and ‘moral’ approaches. More than an affliction, the schism has become an obsession among many who place themselves on the ‘moral’ side. On the ‘moral’ side, many write with embarrassing defensiveness as if their main task were to see off the economistic threat. Those on the ‘economic’ side who react at all tend to react condescendingly. As this cartoon suggests, the economists hold greater cultural sway, and this lends them a certain swagger in their work that their adversaries generally lack.