Structure, Function, and Tort Law

Authors

Dan Priel, Osgoode Hall Law School of York UniversityFollow

Author ORCID Identifier

Dan Priel: 0000-0002-8648-5760

Document Type

Article

Publication Date

6-30-2020

Source Publication

Journal of Tort Law, vol. 13, no. 1, 2020, pp. 31-79. https://doi.org/10.1515/jtl-2020-2001

Abstract

A popular view among tort theorists is that an explanation of tort law must take account its “structure,” since this structure constitutes the law’s “self-understanding.” This view is used to both criticize competing functional accounts of tort law, especially economic ones, that are said to ignore tort law’s structure, and, more constructively, as a basis for explaining various tort doctrines. In this essay, I consider this argument closely and conclude that it is faulty. To be valid, one needs a non-question begging way of identifying the essence of tort law. I argue that law’s “self-understanding” can only make sense if it means the understanding of certain people. Examining those, I conclude that the claim of structuralists is false, for there are many people who take its function to be central. I then further show that if one wishes to understand the development of tort law’s doctrine one must take both structure and function into account. I demonstrate this claim by examining the development of the doctrine dealing with causal uncertainty and vicarious liability.

Repository Citation

Priel, Dan, "Structure, Function, and Tort Law" (2020). Articles & Book Chapters. 3356.
https://digitalcommons.osgoode.yorku.ca/scholarly_works/3356