The Old and New Philosophical Foundations of Tort Law
| Date | 01 May 2016 |
| Author | Alberto Pino‐Emhart |
| Published date | 01 May 2016 |
| DOI | http://doi.org/10.1111/1468-2230.12195 |
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REVIEW ARTICLE
The Old and New Philosophical Foundations
of Tort Law
Alberto Pino-Emhart∗
John Oberdiek (ed),Philosophical Foundations of the Law of Torts, Ox-
ford: Oxford University Press, 2014, 464 pp, hb, £75.00.
INTRODUCTION
In 1995, David Owen offered a prolific collection of essays on the philosophi-
cal foundations of tort law.1The book included works from leading corrective
justice scholars such as Jules Coleman, Ernest Weinrib, Bruce Chapman and
Stephen Perry, among many others. The book’s message was clear at that time:
the Law and Economics era was over, because it was possible to elaborate a
normative account of tort law based on the idea of corrective justice. John
Oberdiek now offers an attractive new volume on the same topic. Like its
predecessor, Oberdiek’s collection aims to capture most of the current philo-
sophical work of legal scholars in the area of tort law. In his introduction,
Oberdiek praises George Fletcher, Jules Coleman, and Ernest Weinrib for their
‘early efforts’ that ‘helped to substantiate philosophy of tort law’s standing as a
distinct subfield within philosophy of law’ (1). These three legal philosophers,
however, are not present in this collection. This fact is not a coincidence. It
is true that the book includes tort scholars who have written extensively on
the foundations of tort law, such as John Goldberg and Benjamin Zipursky,
Stephen Perry, Peter Cane, and John Gardner, but it also includes works of
theorists who do not necessarily work on tort law as a primar y subject, such as
David Enoch, Victor Tadros, R. A. Duff, and Linda Radzik.
Oberdiek’s new collection is not much concerned with the discussion of
theories of corrective justice, which was one of the major issues that concerned
Owen’s volume. In fact, the book has only one corrective justice theorist
among its contributors, namely Gardner (even though his contribution to this
volume does not defend a theory of corrective justice). Moreover, Goldberg
and Zipursky argue in their chapter that a tort theorist (which they suggest
should be a ‘responsibility theorist’) can be a corrective justice theorist, but it
is not a requirement (26). Similarly, Scott Hershovitz suggests in his chapter
that Aristotelian corrective justice should be modified or ‘corrected’ with a
notion of revenge or ‘getting even’ (95). Additionally, Radzik’s chapter also
∗Universidad Adolfo Ib´
a˜
nez, Chile.
1D.G.Owen,Philosophical Foundations of Tort Law (Oxford: OUP, 1995).
C2016 The Author.The Moder n LawReview C2016 The Modern Law ReviewLimited. (2016) 79(3) MLR 504–518
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
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