Introductory remarks: explaining tort law.

• Author: Green, Michael Steven
• Position: TORT LAW

This Symposium is about the intersections between law and morality. One way that the two can intersect is when moral principles are used to explain the law, that is, to describe and predict, in a fairly abstract way, what the law is like. There are at least two reasons to use moral principles when undertaking such an explanatory project. The first is that lawmakers usually claim to take morality into consideration when doing their job. We would therefore expect the law to track morality.

Of course, we might be disappointed. We may find that no plausible set of moral principles can explain the law, but that something morally neutral--or even morally reprehensible--can. But to at least start with the considerations to which lawmakers themselves appeal seems like a good idea.

The second reason to look to moral principles is that if they succeed in explaining the law, they might then be used to justify it. Trying to justify the law seems necessary, because the law is backed up by the coercive power of the state and coercion is the kind of thing that usually needs justification. Of course, that the content of the law overlaps with morality might, in the end, do little or nothing to justify state coercion. (Most people would certainly agree that it is not sufficient to justify coercion--just because you morally ought to cultivate your talents does not mean that anyone, even the state, may force you to do so.) But justifying the law certainly looks easier if the law requires people to do what they have a moral reason to do anyway.

For the past forty years or so, tort law has proved to be an exceptionally fruitful area for this type of explanatory project. A good deal of moral theorizing about tort law has taken as its starting point a rejection of the economic approach to torts. On the one hand, these critics argue that the economic approach cannot justify tort law, because efficiency is not a moral value. Perhaps more important, however, they also argue that the economic approach is explanatorily inadequate, for it mispredicts the positive law of torts. They then offer sets of moral principles that can do a better job explaining, for example, why the duties of conduct in tort law have the content that they do, and why violations of these duties generate the particular duties of repair that we find in tort law, rather than some other--or no--form of reparation.

Both of our essays are examples of this explanatory project. In Sleight of Hand, Ben...