Introduction
W
hat is a tort, and what is tort law for? On one leading scholarly account, torts are legal liability rules that seek to promote the welfare of society at large by disincentivizing socially suboptimal behavior and distributing the costs of accidents to those who can best bear them. Over the twentieth century, this instrumentalist view of tort law won powerful support in elite American legal culture. But it has never gained much traction in other common law jurisdictions, where judges and legal scholars standardly suggest that private law domains such as tort are “inextricably interwoven” with interpersonal morality. After all, the law of torts deals in concepts — negligence, deceit, assault — that are familiar from ordinary moral life. On the classical, moralist understanding of tort law, this moralized conceptual architecture reflects tort law’s basic normative substance. At its core, the common law of torts is an institutionalized application of “common morality and common sense” — a corpus of legal doctrine formed by courts “articulating inchoate lay ideas of right and wrong.”
Over the last several decades, this classical moralist view of tort law has enjoyed a revival of interest in the American legal academy, helping to revive interest in moralist approaches to the private law more generally. In the rest of the common law world, in both tort and other private law domains, moralism has long been academic and judicial orthodoxy. The intellectual lodestar of contemporary private law moralism, especially in tort, is the most famous opinion in the common law canon: Chief Judge Cardozo’s opinion in Palsgraf v. Long Island Railroad Co.
By now the facts of the case are familiar to us. A man attempted to jump onto a train as it was departing from a Long Island Railroad station. In the course of this attempt, the man was negligently jostled by a train attendant employed by the Long Island Railroad Company, causing the man to drop a package he was carrying underneath his arm. Quite improbably, the package contained some powerful explosives; the resulting explosion caused heavy scales at the other end of the train station to drop onto the head of Helen Palsgraf. Writing for the majority of a divided New York Court of Appeals, Cardozo refused to allow Mrs. Palsgraf to recover.
The lasting significance of Cardozo’s opinion rests less on its conclusion, however, than on its claims about the nature of the negligence tort and the law of torts more generally — claims that have proved highly influential in common law courts as well as in the legal academy. In virtually all legal systems, including civil law jurisdictions such as Germany and Italy, courts refuse to impose negligence liability for utterly unforeseeable injuries, such as the improbable injury suffered by Mrs. Palsgraf. But Cardozo’s opinion vigorously asserted an even more basic obstacle to her recovery than the unforeseeability of her injury. If a plaintiff is unforeseeable to a defendant, the opinion maintains, then the defendant cannot treat her wrongfully — the defendant cannot breach any duty owed to her, cannot commit a wrong against her as opposed to other people (or society at large). In tort law, Cardozo insisted, a plaintiff can only sue “for a wrong personal to her, and not as the vicarious beneficiary of a breach of duty to another.”
For tort scholars who join Cardozo in taking up the “Palsgraf perspective,” this basic doctrinal proposition — the “Palsgraf principle,” as it is sometimes called — reflects and reveals the moral heart of tort law. Tort law is about recognizing and redressing relational wrongs: breaches of duties owed by one private person to another. So unless a defendant has breached a duty to the plaintiff — unless she has been mistreated by his behavior — she cannot recover from him in tort.
That is because tort law, unlike the criminal law or administrative regulation, is not a set of legal liability rules that protect the public interest or incentivize socially desirable behavior. Instead, tort law is “irreducibly relational.” The law lays down relational norms of conduct — legal duties that we owe to other people. A tort such as negligence or battery is a sort of relational legal wrong, which consists in the breach of one such relational duty: “do not injure another person by treating her negligently” (the tort of negligence), “do not harmfully or offensively contact another person” (the tort of battery), “do not make a false and injurious communication about another person” (the tort of defamation), and so on. By laying down relational legal duties and wrongs that recognize relational moral duties and wrongs — duties and wrongs that we acknowledge in everyday moral life — tort law allows us to obtain redress from those who have treated us wrongfully. According to the Palsgraf perspective, that is tort law’s core aspiration and purpose: to recognize and redress relational wrongs.
This Article argues that the Palsgraf perspective is mistaken and proposes a different moral picture of tort law’s normative substance and doctrinal structure. Tort law may be centrally concerned with “common morality,” rather than promoting the welfare of society at large. But torts are not relational legal wrongs, and their purpose is not to recognize or redress relational moral wrongs. Torts are remedial pigeonholes: legal liability rules that identify the complex conditions under which a defendant is morally liable to provide a plaintiff with compensation or other forms of remedial relief. Rather than recognizing a species of relational moral wrongdoing or interpersonal mistreatment, a tort such as negligence is a coarse doctrinal device that identifies instances of “moral wrongdoing for which the offender must pay,” whether or not he has treated the plaintiff wrongfully. Other torts identify forms of behavior that render a defendant liable to pay compensation for resulting injuries although he has not behaved wrongfully at all. In both negligence and the other torts, a defendant may be liable to compensate a plaintiff even if he has not wronged or mistreated her. Contra the Palsgraf perspective, relational moral wrongdoing is not the basis of remedial liability, either in ordinary morality or the law of torts.
What is? Like the ordinary morality that it reflects, the common law contemplates many answers. Many of these answers, however, have a common core: the defendant’s moral responsibility for causing unjust damage to the plaintiff, in the sense of infringing some right against injury that the plaintiff holds. The idea of responsibility for unjust damage does not receive clean expression anywhere in the common law. It receives somewhat more transparent expression in many civil law jurisdictions, where the private law (including tort law) is largely codified in statute. So, for example, the most important tort law clause in the Italian Codice Civile, CC 2043, lays down that “[a]ny intentional or negligent act that causes unjust damage [danno ingiusto] to another person obliges the person who has committed the act to pay damages.” It is standardly supposed in Italian legal thought that a loss suffered by a plaintiff is compensable — that it counts as “damage” rather than mere “loss” — only if it infringes a right, or injures a protected interest, that she holds. There are similar clauses in other civil law codes. Thus, for example, section 823(1) of the Bürgerliches Gesetzbuch (BGB), the German Civil Code, lays down that “[a] person who, intentionally or negligently, unlawfully injures the life, limb, health, freedom, property or some other right of another person is liable to provide compensation to the other party for the damage arising therefrom.”
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