Satisfying Claims? Money, Tort, and ‘Consumer Society’

AuthorJenny Steele
Publication Date01 Dec 2011
SubjectDialogue & Debate
Satisfying Claims? Money, Tort,
and ‘Consumer Society’
Jenny Steele
University of York, UK
Tort law has been a favoured location for jurisprudential contests between principled and
scepticalaccountsof legal evolution,
andit has even been regarded– for example,by Simon
(1988)– as providingan obvious exampleof the declineof principle andgrowth of pragmatic
reasoning. Butbeyond court-focused analyses of these sorts, the social significance of tort
can appear limited: functional or policy-based analyses of tort typically lead into a blind
alley, suggesting that much of tort law should be, or inreality has been, replaced. Thefate
of tort law contrasts here with th at of its private law cousin, contract. While ‘ contractual’ can
readilybe used as an adjectiveto describe certainsorts of social relations(though not without
the risk of misrepresenting contracting),
the same is not true of ‘tort-like’ or ‘delictual’:
these are legalterms, and no more. For scholarsof the law of tort, it is thereforeespecially
promising that The Currency of Justice treats the development of this branch of law as an
important and integral part of a much wider set of developments in ‘consumer societies’.
Such societies, it argues,are regulated in particularways through the mediumof money, and
both civil and criminal liabilities feed into this process. The claim isa broad one:
Through the vehicle of money and its meanings, it may be suggested not simply that there is
a blurring of the civil and criminal domains, but that the two become interchangeable in
certain key respects, and form a more or less seamless and ubiquitous system of regulation.
(O’Malley, 2009: 20)
The focus on regulation through damagesseems to take us out of the blind alley,and to give
tort a greaterdegree of currency thancontract – at least untilthe story unfolded by O’Malley
brings us into the era of neo-liberal revival. Theneo-liberal agenda can be said to promote
contractingas the key to economicand social well-being,adopting a conceptionof contract-
ing in broadly classical terms associated with individual choice, and with the rejection of
Indeed, O’Malley describes the neo-liberal reform agenda in respect of tort
in terms of an ambitionto ‘return contract to centre stage’, in combination with ‘a desocia-
lized imaginaryof consumption’ in which consumerautonomy, rather than consumerpro-
tection,is key. But as O’Malleynotes, reformof tort law, thoughit has occurred, hasnot been
accompanied(so far at least) by the expected shiftfrom third party to first party insurance.
Retainingthe link betweencivil damages and criminaland regulatory sanctions,he adds that
the first partyinsurance reform agenda‘has been no more successfulthan the parallel econ-
omist’s vision of finesbecoming the universal sanction’ (O’Malley, 2009: 168).
516 Social & Legal Studies 20(4)

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