侵权法.docx

1、侵权法Theories of Tort LawFirst published Mon Sep 22, 2003; substantive revision Thu Aug 26, 2010Tort is a branch of private law. The other main branches are contract, property, and restitution (sometimes known as unjust enrichment).Section 1 offers a brief overview of tort law and tort theory. Section

2、 2 discusses economic analysis, which is the historically dominant tort theory and the primary foil for philosophical perspectives on tort law. Section 3 discusses the most influential non-economic tort theories, theories that emphasize such normative concepts as justice, rights, and duties. 1. Over

3、view of Tort Law and Tort Theory o 1.1 Tort Law: Basic Features o 1.2 The Difference between Strict Liability and Fault Liability o 1.3 Theoretical Perspectives on Tort Law 2. Theories of Tort Law: Economic Analysis o 2.1 The Economic Interpretation of Fault Liability o 2.2 The Economic Interpretati

4、on of Strict Liability o 2.3 Objections to Economic Analysis 3. Theories of Tort Law: Justice, Rights, and Duties o 3.1 Corrective Justice o 3.2 Civil Recourse Theory Bibliography Other Internet Resources Related Entries 1. Overview of Tort Law and Tort Theory1.1 Tort Law: Basic FeaturesA tort suit

5、enables the victim of some injury to make her problem someone elses problem. Unlike a criminal case, which is initiated and managed by the state, a tort suit is prosecuted by the victim or the victims survivors. Moreover, a successful tort suit results not in a sentence of punishment but in a judgme

6、nt of liability. Such a judgment normally requires the defendant to compensate the plaintiff financially. In principle, an award of compensatory damages shifts all of the plaintiffs legally cognizable costs to the defendant. (It is controversial whether tort really lives up to this principle in prac

7、tice; see Ross 1970.) On rare occasions, a plaintiff may also be awarded punitive damages, defined as damages in excess of compensatory relief. In other cases, a plaintiff may obtain an injunction: a court order preventing the defendant from injuring her or from invading one of her property rights (

8、perhaps harmlessly).The law does not recognize just any injury as the basis of a claim in tort. If you beat me in tennis or in competition for the affections of another, I may well be injured. Yet I have no claim in tort to repair my bruised ego or broken heart. Since you lack a legal duty not to be

9、at me in tennis or in competition for the affections of another, you do not act tortiously when you succeed at my expense.Tort distinguishes between two general classes of duties: (i) duties not to injure full stop and (ii) duties not to injure negligently, recklessly, or intentionally. When you eng

10、age in an activity the law regards as extremely hazardous (e.g., blasting with dynamite), you are subject to a duty of the first sort a duty not to injure full stop. When you engage in an activity of ordinary riskiness (e.g., driving), you are subject to a duty of the second sort a duty not to injur

11、e negligently, recklessly, or intentionally. Your conduct is governed by strict liability when it flouts a duty not to injure full stop. Your conduct is governed by fault liability when it flouts a duty not to injure negligently, recklessly, or intentionally.1.2 The Difference between Strict Liabili

12、ty and Fault LiabilityStrict liability. Suppose I make a mess on my property and present you with the bill for cleaning it up. Absent some prior agreement, this would seem rather odd. It is my mess, after all, not yours. Now suppose that instead of making a mess on my property and presenting you wit

13、h the bill, I simply move the mess to your property and walk away, claiming that the mess is your problem. If it was inappropriate of me to present you with the bill for the mess I made on my property, it hardly seems that I have improved matters by placing my mess on your property. I have a duty to

14、 clean up my messes and the existence of this duty does not appear to depend on how hard I have tried not to make a mess in the first place. This is the underlying intuition expressed by the rule of strict liability.Fault liability. Unless we stay home all day, we are each bound to make the occasion

15、al mess in anothers life. This being so, it would be unreasonable of me to demand that you never make any kind of mess in my life. What I can reasonably demand is that you take my interests into account and moderate your behavior accordingly. In particular, I can reasonably demand that you take prec

16、autions not to injure me that you avoid being careless with respect to my interests and, all the more so, that you not injure me intentionally. This is the underlying intuition expressed by the rule of fault liability.People sometimes misunderstand the nature of fault liability because they equate s

17、trict liability in tort with strict liability in the criminal law. Strict liability in the criminal law is a form of responsibility without culpability. If you are strictly liable for a criminal offense, you are punishable for the offense even if your conduct is not morally blameworthy. The standard

18、 way to express this is to say that strict liability in criminal law is not defeasible by excuse. If we conceived similarly of strict liability in tort, we would then understand fault liability, incorrectly, as liability that is defeasible by excuse, in other words, as liability (only) for ones culp

19、able conduct. But you can be at fault in tort even if you are morally faultless, that is, even if your conduct is not morally blameworthy. Under a regime of fault liability, you are liable for injuries you cause while failing to comport yourself as a reasonable person of ordinary prudence. It wont g

20、et you off the hook that you are not a reasonable person of ordinary prudence. Nor will it matter that your failure to comport yourself as a reasonable person of ordinary prudence is a failure for which you are utterly blameless. Fault liability is simply not defeasible by excuse.Strict liability is

21、 not defeasible by excuse, either. Under neither regime does your liability for a loss depend on your degree of culpability. What distinguishes the two regimes is this: you can avoid fault liability if you comport yourself as a reasonable person of ordinary prudence in other words, if you act reason

22、ably or justifiably whereas you remain subject to strict liability even if you act impeccably. Thus, fault liability alone can be undermined by justification.Some find it helpful to distinguish between strict liability and fault liability in terms of the content of the underlying legal duty. In the

23、case of blasting an activity traditionally governed by strict liability the blaster has a duty not-to-injure-by-blasting. In the case of driving an activity traditionally governed by fault liability the driver has a duty not-to-injure-by-driving-faultily. No matter how much care he takes, the blaste

24、r fails to discharge his duty whenever he injures someone. In contrast, the driver fails to discharge his duty only when he injures someone negligently, recklessly, or intentionally.Only if we first get clear on the content of a legal duty can we determine an activitys true cost. Suppose a ranchers

25、cows trample a farmers corn, causing the farmer a financial loss. To what activity should we ascribe this cost? Is it a cost of ranching or a cost of farming? We cannot answer this question just by determining whether crop damage is something that ranching causes. We must first determine whether the

26、 rancher owes the farmer a duty. If the rancher has a duty to prevent his cows from trampling the farmers corn, then the resultant damage is a cost of ranching. But if the rancher has no such duty if it is the farmers responsibility to protect his corn crop, say, by building a fence then, other thin

27、gs being equal, the resultant damage is not a cost of ranching but a cost of farming.1.3 Theoretical Perspectives on Tort Law1.3.1 Analytical and NormativeAnalytical theories seek to interpret and explain tort law. More specifically, they aim (i) to identify the concepts that figure centrally in tor

28、ts substantive norms and structural features (the latter being the procedures and mechanisms by which the institution of tort law enforces its substantive norms) and (ii) to explain how torts substantive norms and structural features are related. Key substantive norms include the rules of strict lia

29、bility and fault liability. Key structural features include the fact that tort suits are brought by the victim rather than by the state and the fact that such suits are bilateral: victims (plaintiffs) sue their putative injurers instead of drawing on a common pool of resources, as in New Zealand (a

30、unique outlier).Normative theories seek to justify or reform tort law. Justificatory theories aim to provide tort with a normative grounding, often by defending the values tort embodies or the goals it aims to achieve. Reformist theories seek to improve tort law, say, by recommending changes that wo

31、uld bring the institution closer in line with its core values or would help it do a better job of achieving its goals.The distinction between analytical and normative theories is not exclusive. On the contrary, few analytical theories are altogether devoid of normative elements and no normative theo

32、ry is ever devoid of analytical elements. Analytical theories frequently invoke concepts that are fundamentally normative, since such theories (following Dworkin) often seek to portray torts substantive norms and structural features in their best lights. All the more so, normative theories are always at least partly analytical, since such theories must either provide or presuppose some account of the institution they seek to justify or reform.1.3.2 Instrumental and Non-InstrumentalAlong another axis, we can distinguish between theories of tort based on whether th