REVIEW

Date01 November 1994
Published date01 November 1994
DOIhttp://doi.org/10.1111/j.1468-2230.1994.tb01990.x
REVIEWS
Zzhak
Englurd,
The Philosophy
of
Tort
Law,
Aldershot: Dartmouth, 1992, ix
+
229 pp, hb €35.00.
Professor Englard offers ‘a critical analysis of the current theories on the
foundations of tort liability’ (p ix). That critical analysis is divided into three parts.
Part one (chs 1-6) offers a brief exposition and sustained critique of some recent
American accounts of the foundations of tort law, a brief outline of Englard’s
alternative, putatively better account and an equally brief ‘historical-comparative
analysis.’ Part two (ch 7) is an account of alternative compensation systems. Part
three (chs
8-
17) elucidates ‘the central features of contemporary tort liability’
(p 227) in an attempt to show that ‘many substantive rules of liability are the
product of contrasting purposes: a blend of corrective justice and distributive
justice, of private law and public law’
(ibid).
That conclusion supports Englard’s
account
of
the foundations of tort liability.
The argumentative crux of the book is the first part. It is there that Englard aims
to discredit many accounts of the foundations of tort law
-
offered by,
inter
alios,
Richard Posner, Guido Calabresi, Ernest Weinrib and Jack Balkin
-
so
as to
create logical space for his own account. Having done that, he turns in part three to
illustrate how his account fits tort law doctrine better than those other accounts.
Hence, a good deal turns upon the success of his arguments against competing
accounts of tort law. There are at least three reasons to doubt both the success of
some of the arguments Englard offers against those other accounts and the success
of his own, alternative account. These three reasons go beyond Englard’s rather
slipshod sketches of other authors’ theories (chs 1
-
3) and his sometimes brutal
efforts to force those theories into the Procustean bed of his classificatory system
(which holds (see ch 4) that such theories must be either monistic or pluralist and
thus does violence to, for example, Calabresi’s work).
The first reason consists of the difficulties raised by the first dimension of the
test that Englard thinks must be passed if accounts of the foundations of tort law
are to succeed. He holds that successful theories must (i) provide ‘criteria for
solving concrete issues
of
liability’ (p 37; also p 29 and p
6S),
and (ii) in some
sense ‘fit’ the details of tort law doctrine. Hence, because ‘the practical role of
[Calabresi’s] theory in the courts is a rather limited one’ (p 32), because Posner’s
account of tort cannot solve concrete issues of liability (pp 37
-
43), because ‘large
parts of modern tort law [deviate] from the conceptual, formal premises of .
.
.
[Weinrib’s] theory’
(p
SO),
and because Balkin’s ‘insights into tort law lack
concrete normative implications’
(p
61), each of their accounts fails. The initial
difficulty that arises here concerns the fact that the theorists under discussion may
not share Englard’s conception of what is involved in giving an account of the
foundations
of
tort and, hence, reject the criteria of success and failure he invokes.
This
is
clearly true of Balkin whase work makes no pretence to provide ‘criteria
for solving concrete cases of liability.’ The point of Balkin’s work, if he is rightly
described as a proponent of what Englard calls ‘rule-scepticism,’ is to show that
the judicial or theoretical construction of criteria for solving concrete cases of
liability is an ideological, possibly arbitrary and certainly indeterminate process.
Therefore, to say, as Englard does, that ‘[tlhe theory’s extreme rule scepticism
renders it unproductive for any specific
use
in tort law’ (p
61;
emphasis mine), is
108
Cowley Road. Oxford
OX4
1JF
and
238
Main
Street,
Cambridge. MA
02142.
USA.
987
0
The Modem Law Review Limited
1994
(MLR
57:6.
November). Published by Blackwell Publishers,

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT