Tort Law for Cynics

Date01 September 2014
Published date01 September 2014
Tort Law for Cynics
Dan Priel*
Tort scholars have in recent years defended a ‘traditional’ or ‘idealist’ view of tort law. In the
context of negligence this implies that the holder of a duty of care must make an effort not to
violate that duty. Idealists contrast this with a ‘cynical’ view that having a duty of care implies a
legal requirement to pay damages for breach of that duty. This article defends the cynical view,
arguing that it easily explains doctrines supposedly only explicable from an idealist perspective,
and that many aspects of tort law are hard to reconcile with idealism. Empirical constraints often
make idealism, even if it were desirable, unattainable, and cynicism is therefore the more honest
view. The article argues that idealism is often undesirable, having costs, both pecuniary and
non-pecuniary, which are often ignored, and that therefore it is sometimes better if certain torts
take place (and are compensated) than if they do not happen.
Back in 1949 Lord Justice Denning had an occasion to consider the rules
imposing tort liability on the actions of people of unsound mind. He wrote:
I am aware that these rules of law have been criticized by some jurists who would
make . . . liability in tort depend on blameworthiness, but I venture to think that this
criticism is somewhat out of date. Recent legislative and judicial developments show
that the criterion of liability in tort is not so much culpability, but on whom should
the risk fall.1
In recent years this ‘out of date’ view has been making something of a comeback.
A recent spate of writings has asked us to ‘rediscover’ negligence law which ‘has
been forgotten’,2to return it to its ‘traditional’ roots, to go back to views that
‘until about 40 years ago . . . had always’ been accepted and according to which
‘tort law is all about protecting people who had suffered a wrong, people whose
rights had been violated’.3In this essay I wish to challenge one aspect of this
*Associate Professor, Osgood Hall Law School, York University. An earlier version of this paper was
presented at the LSE, and I thank participants there for their comments and questions. I also thank
Vincent Chiao, Chris Essert, David Howarth, and two anonymous referees for their helpful comments.
Their comments have led to many changes, large and small, to the essay.
1White vWhite, [1950] P 39, 58–59. Denning held on to these views. See Spartan Steel vMartin &
Co [1973] 1 QB 27, 37; Lamb vCamden London Borough Council [1981] 1 QB 625, 634, 636–637.
2 See A. Beever, Rediscovering the Law of Negligence (Oxford: Hart, 2007) 512.
3 N. J. McBride and R. Bagshaw, Tort Law (Harlow: Pearson Longman, 3rd ed, 2008) xiv (McBride
and Bagshaw (3rd ed)). The historical claim is unfounded. See notes 33 and 92 below. Here and
below I cite from the last two editions of this book, the last one being N. J. McBride and R.
Bagshaw, Tort Law (Harlow: Pearson, 4th ed, 2012) (McBride and Bagshaw (4th ed)). Since my
discussion seeks to challenge a view rather than a particular book, and since, as far as I can tell, the
authors have not changed their views on tort law, I believe this usage is justified. Another scholar
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. (2014) 75(5) MLR 703–731
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
new-old view, namely the nature and role of duty of care in the tort of
In an essay published a few years ago Nicholas McBride vigorously defended
what he called an ‘idealist’ view that affirms the existence of duties of care,
against what he called the ‘cynical’ position that denies their existence.4Not only
do duties of care exist, McBride insisted that every one of us has ‘millions’
of them.5Along similar lines, John Goldberg and Benjamin Zipursky have
defended an ‘anti-reductionist’ view of tort law according to which there
are special relations in the interactions of ‘manufacturer–consumer, business–
business, business–customer, doctor–patient, lawyer–client . . . landlord–tenant,
host–guest’, and that ‘there is no reason to suppose that these diverse norms are
really just expressions of a deeper reality’ such as individuals’ ‘capacities as
autonomous, self-interested agents or citizens of a polity subject to regulation’.6
Pushing this idea to its logical conclusion Robert Stevens has argued that we
should stop speaking not just of ‘tort law’ as though it reflected a unified ground
for liability, but even of ‘the tort of negligence’.7
McBride’s essay prompted a response from David Howarth.8While agreeing
with McBride that the cynic’s position is ‘clearly untenable’,9he favoured the
view which McBride dubbed ‘ultra-idealism’ and hastily dismissed as a view ‘no
serious lawyer would nowadays endorse’.10 As Howarth defined it, this ultra-
idealist view is ‘that there is only one duty of care – a duty not to harm others
by faulty conduct’.11 The purpose of this essay is to say something in support of
the view both McBride and Howarth rejected. Even though McBride’s labels
could hardly have been more partisan (‘duty nominalism’ or ‘duty minimalism’
would have been more neutral alternatives), I have decided to stick to his
terminology and make the case for the cynical approach to tort law, and
especially negligence. That may not seem like a very promising endeavour; it is
tempting to agree with Howarth that at least in the English context, the cynical
view cannot be true because of the central place duty of care plays in negligence
espousing this view is R. Stevens, Torts and Rights (Oxford: OUP, 2007). In the US John
Goldberg and Benjamin Zipursky have defended this view in many (joint and separate) writings.
See in particular J. C. P. Goldberg and B. C. Zipursky, ‘The Restatement (Third) and the Place of
Duty in Negligence Law’ (2001) 54 Vand L Rev 657; J. C. P. Goldberg and B. C. Zipursky, ‘The
Moral of MacPherson’ (1998) 146 U Pa L Rev 1733; J .C. P. Goldberg and B. C. Zipursky, ‘Torts
as Wrongs’ (2010) 88 Tex L Rev 917.
4 N. J. McBride, ‘Duties of Care – Do They Really Exist?’ (2004) 24 OJLS 417; cf R. Stevens,
‘Torts’ in L. Blom-Cooper et al (eds), The Judicial House of Lords: 1876–2009 (Oxford: OUP,
2009) 629, 652 (‘The Law itself is compromised if a cynical or “realist” view is allowed to take
5 McBride, n 4 above, 432.
6 J. C. P. Goldberg and B. C. Zipursky, ‘Accidents of the Great Society’ (2005) 64 Md L Rev 364,
7 Stevens, n 3 above, 291–292, 301–303.
8 D. Howarth, ‘Many Duties of Care – Or a Duty of Care? Notes from the Underground’ (2006)
26 OJLS 449.
9ibid, 450.
10 McBride, n 4 above, 437.
11 Howarth, n 8 above, 450.
Tort Law for Cynics
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited.
704 (2014) 75(5) MLR 703–731

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