Economics, Moral Philosophy, and the Positive Analysis of Tort Law
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Description
The positive analysis of tort law is descriptive in the sense that it ascribes a purpose to tort liability, such as one based on corrective justice or wealth maximization, and then interprets tort law in those terms. An interpretation that adequately describes tort practice is thought to support the claim that the tort system serves the purpose upon which the interpretation is based, even if participants in the system do not consciously pursue that purpose. This analytical approach is partially motivated by the role that precedent plays in the justification of legal decisions. If positive analysis shows that most of tort law maximizes wealth, for example, then one may have substantial precedent for justifying the wealth maximizing outcome in the case at hand. Similarly, a greater ability to discern commonality in prior cases makes one more capable of predicting the outcome of future cases, insofar as “like” cases are supposed to be treated alike. By enhancing the ability of the tort system to handle cases in a uniform and consistent manner, positive analysis promotes or protects the values of equality and reliance. Positive analysis has only limited normative value, however. Even if positive analysis shows that most of tort practice can be adequately described as serving some purpose, a purpose that is not morally justified probably does not provide a good reason for deciding the present case. Any purpose ascribed to tort law must be normatively justified, so the positive analysis of tort law cannot substitute for normative theory. Not surprisingly, there has been much debate about the appropriate purpose of tort liability, with the most attention being paid to the competing claims that either corrective justice or wealth maximization provides the appropriate rationale for tort liability. Unfortunately, there is no consensus on the proper objective of tort liability, explaining why so much attention has been paid to the positive analysis of tort law. Those who believe that tort law should maximize wealth have often appealed to the theory’s descriptive power as proof that “the logic of the law is really economics. To rebut this claim, philosophers have argued that moral principles, typically based on corrective justice, provide a better description of tort practice. This critique has two aspects. First, it shows how much of tort law implements moral principles. Second, it argues that the economic interpretation provides a poor explanation of important tort practices. As Sections I and II below show, these objections to the positive economic analysis of tort law are answerable. This analysis does not show that wealth maximization provides a better description of tort law or a more defensible basis for tort liability. Instead, by showing that the economic and moral interpretations can each provide persuasive descriptions of tort practice, the analysis suggests that the two interpretations must share substantial similarities. Section III accordingly seeks to understand why the two interpretations are able to provide such good descriptions of tort practice. Despite their fundamental differences, each justifies an important subset of tort rules, albeit for different reasons. These rules therefore can be justified on the basis of an overlapping consensus. Of course, the overlapping consensus does not encompass all tort rules. Most notably, the conventional economic rationale for tort liability al- ways requires deterrence, whereas the corrective justice rationale does not. But any form of tort liability is likely to have some deterrence impact, making it difficult to determine whether the justification for any given rule depends on deterrence or some other moral reason. Hence it is unsurprising that the economic and moral interpretations each yield persuasive descriptions of tort practice. For various reasons, then, there are considerable obstacles faced by those who want to rely on positive analysis to resolve the issue of whether the tort system pursues an economic or moral objective. Positive analysis, however, has another, underappreciated role, one that connects economic analysis to moral reasoning rather than providing grounds for choosing between the economic and moral interpretations of tort law. As Section IV shows, economic analysis necessarily depends on moral argumentation regarding the way in which social welfare depends on individual welfare, an issue implicating the requirements or restrictions that inhere in the principles of equality and justice. Different versions of equality or justice yield different specifications of social welfare. Consequently, even though the conventional economic interpretation of tort law defines the social objective as one of maximizing utility or wealth, that definition is not required by modern welfare economics. The few restrictions that welfare economics places on the definition of social welfare are likely to be satisfied by any moral theory of tort law that operates within a domain defined by the injurious consequences of human behavior, a domain that includes most moral theories of tort law, including those based on corrective justice. The choice among the various moral theories depends on moral argumentation, rather than economic analysis, concerning the appropriate justification for tort liability. The economic analysis of tort law, in turn, is merely a form of positive analysis seeking to determine whether any given tort rule is likely to affect individual welfare in the normatively justified manner. Positive analysis therefore does not provide grounds for choosing between economic and moral interpretations of tort law; it is the ground that unites them.
Source Publication
Philosophy and the Law of Torts
Source Editors/Authors
Gerald J. Postema
Publication Date
2001
Recommended Citation
Geistfeld, Mark A., "Economics, Moral Philosophy, and the Positive Analysis of Tort Law" (2001). Faculty Chapters. 719.
https://gretchen.law.nyu.edu/fac-chapt/719
