Professional Documents
Culture Documents
DOI:10.1093/acprof:oso/9780198265795.003.0004
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The first question Hart asked in his analysis of criminal law was why certain kinds of
conduct are forbidden by law and so made crimes or offences. He gave the answer [t]o
announce to society that these actions are not to be done and to secure that fewer of
them are done.6 Much the same may be said of conduct that by common law or statute
is made a tort. When the legislature or courts make conduct a tort they mean, by
stamping it as wrongful, to forbid or discourage it or, at a minimum, to warn those who
indulge in it of the liability they may incur. It is true that the terms used to describe it,
tortious or wrongful, are not as strong as the term offence in criminal law, and they
do not carry the same stigma. But that is a mat-ter of degree. In tort law not only actions
but omissions are at times treated as wrongful; that is also the case in criminal law, for
example in the law of homicide. Again, tort law sometimes treats as wrongful not an action
or omission as such but the causing of harm by conduct of a potentially dangerous sort,
for example selling a defective product or setting off explosives. In such cases the harmcausing action itself need not be wrongful, though it is done at the agents risk. Criminal
law also uses this technique, but mostly with the implication that the conduct is wrongful
even apart from its consequences. Think of the crime (in the U.K.) of causing death by
dangerous driving, dangerous driving being itself an offence, though a less serious one.
The word that best covers all these cases (actions, omissions, causing untoward
consequences) is conduct. If conduct is understood to include them all, we can say that
tort law, like criminal law, announces that certain conduct is forbidden and tries to secure
that less of it takes place. Tortious conduct is generally wrongful in itself, though if no
harm results no liability may be incurred. When strict liability is imposed, the conduct is
generally not wrongful in itself but the wrong consists in causing harm by engaging in
certain types of risky activities.
But that is not the only reason why the state and its courts make conduct tortious. One
point of creating a tort, as opposed to a crime, is to define and give content to peoples
rights by providing them with a mechanism for protecting them and securing
compensation if their rights are infringed.
(p.76) (2) What is the Definition of Tort Liability?
The second question follows naturally from the first. It concerns the definition of tort
liability. Liability in tort (a) is imposed, if the dispute cannot be resolved without litigation,
by the courts of the legal system having jurisdiction (b) at the instance of an individual
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Two different aspects of this question need to be dealt with here: (a) is the state entitled
to take steps to discourage undesirable behavior? and (b) if so, may it do so by treating
certain interests of individuals as rights and giving them the legal power to protect those
rights and obtain compensation if they are violated?
The tort system is one means by which the state, on behalf of the com-munity, seeks to
reduce conduct that it sees as undesirable. Others include the criminal law, education,
administrative means such as licensing and inspection, differential taxes, and many more.
The state not only may but must, if a society is to be viable, try to minimize at least some
types of dis-ruptive conduct. Is tort law, like criminal law, a suitable means to this end?
What tort and criminal law have in common, and what distinguishes them from some other
means of social control, is that they work by marking out conduct, or the failure to attain a
required standard of conduct, as wrongful. On the other hand licensing, inspection,
differential taxation, and rationing discourage behavior not by marking it as wrongful but
by limiting opportunities to indulge in it, for example by refusing licenses for sex shops, or
by denying benefits to those who do indulge in it, for example by (p.77) charging more
for leaded petrol. Other branches of the law of civil responsibility, such as the law of
contracts or restitution, though they provide remedies for what are seen as wrongs, act
primarily not by treating conduct as wrongful but in other ways. Thus, contract law
mainly marks out the conditions in which agreements will be enforceable, and the law of
restitution mainly specifies what is to count as an unjust benefit.
The technique of tort law therefore is to label certain things as not to be done or omitted
or brought about, though in a less stigmatic way than criminal law. If the state is justified
in making conduct criminal and attaching to it penalties that may include prison, it must
also be justified in marking conduct as tortious and attaching to it the lesser sanction of
compensation. In all societies some people behave disruptively or, without meaning to be
disruptive, expose others to undue risks of injury. The state must have the right and
duty to minimize the risks and remedy the disruption.
But it does not follow that the legislature or courts are right to make any particular sort
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What was said in answer to question (3) is incomplete. To justify the tort system, it is not
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The main questions are whether fault is, morally speaking, a necessary condition of tort
liability, and whether modern conditions justify using loss spreading to support liability
that may be out of proportion to the blameworthiness of a defendants conduct. The
second question is not strictly about the legal conditions of tort liability in individual cases
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Retributive and distributive justice are not the only moral considerations that may limit
the untrammelled pursuit of corrective justice. Three other reasons are commonly given
for restricting the compensation payable in tort actions: the scope of the rule violated, the
foreseeability of the harm for which compensation is sought, and the conduct of the
plaintiff. A fourth is more radical. It is sometimes said that tort liability should be replaced,
entirely or above a certain amount, by a state compensation scheme, at least in certain
areas of life.44 What is the moral status of these arguments?
a. The Scope of the Rule Violated
A rule making conduct tortious, for example requiring dangerous machinery to be
fenced, may have a limited scope. It may be that, properly interpreted, (p.91) the aim of
the rule is to prevent parts of the employees body or clothes catching in the machinery
rather than to prevent parts of the machinery flying out and injuring someone. There is
nothing special to tort law about this need for interpretation. Every rule that makes
conduct wrongful, whether in criminal law, tort law, the law of contract, trust law, or
whatever, requires interpretation and the interpretation will set limits to the scope of the
rule in question. When the interpretation excludes certain types of harm, the pursuit of
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