John Gardner, ‘Tort Law and Its Theory’

Abstract
This paper explores the body of scholarly writing known as ‘tort theory’, and in particular the polarization of ‘economic’ and ‘moral’ approaches to the subject. It queries the ambitions, the discourses, and the presuppositions of work on both sides of that divide. In particular it investigates: the sense in which both approaches are (and are not) inevitably ‘normative’; what counts as tort law, and what counts as a tort, according to the two approaches; and what it means (and what it does not mean) to think of tort law as ‘instrumental’.

Gardner, John, Tort Law and Its Theory (May 23, 2016). Forthcoming in J Tasioulas (ed), The Cambridge Companion to Philosophy of Law (expected publication 2018); Oxford Legal Studies Research Paper No 2/2018.

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