Sinai and Shmueli, ‘Calabresi’s and Maimonides’s Tort Law Theories – A Comparative Analysis and a Preliminary Sketch of a Modern Model of Differential Pluralistic Tort Liability Based on the Two Theories’

Abstract:
Is it possible to create a virtual dialogue between the method of classic scholars of the economic analysis of tort law, such as Guido Calabresi — one of the founders of (tort) law and economics, and the method of Jewish tort law scholars, such as Talmudic and post-Talmudic sages, especially Maimonides? The obvious answer appears to be negative, as the two methods are miles apart in time and space, geographically, and mentally-culturally. However, we point out that it is definitely possible to conduct a dialogue between the two tort theories, and the results are likely to surprise. It is surprising to read ancient sources in the eyes of law and economics. Even though these sources focus especially on private tortfeasors and daily torts as nuisances between neighbors, and not with mass tortfeasors and victims as in the modern industrial world, one can definitely observe deep elements of law and economics in these sources.

Careful analysis of modern tort law and economics helps in the understanding of many Talmudic sources and Maimonides’s tort theory, which many scholars had difficulty explaining because of their deviation from the principle of fault. This analysis explores that Talmudic tort law, in the light of Maimonides writings, follows a pluralist path, which balances between utilitarian and deontological considerations. Maimonides’s theory consists of various objectives and considerations that operate in concert. Different objectives play a dominant role in different types of damage …” (more)

Sinai, Yuval and Shmueli, Benjamin, Calabresi’s and Maimonides’s Tort Law Theories — A Comparative Analysis and a Preliminary Sketch of a Modern Model of Differential Pluralistic Tort Liability Based on the Two Theories (January 26, 2014). Yale Journal of Law and the Humanities, Forthcoming.

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