Many legal theorists refuse to reduce the rules, rights, and wrongs of tort into the policy-based prices, sanctions, and tolls of Holmesian instrumentalism. This refusal is not merely an interpretive position within tort law, or private law more generally. Properly construed, deontic views of tort amount to some form of metaethical non-naturalism. And while a turn away from instrumentalism may be attractive to those unsympathetic to law-and-economics-style reductionism, non-naturalists face their own explanatory burdens. One such burden is to account for the relationship between the normative facts of a target domain and the natural facts that underlie it. Deontic tort theorists must do this by appealing to tort’s grounds: by identifying their metaphysical essence, and by specifying their logical form. Vindicating a deontic theory of tort thus turns out to require engaging in a hyperintensional form of explanation. This framework may not be appealing to contemporary legal theorists more comfortable with a lean, streamlined account of black-letter doctrine and caselaw, but there is no such halfway-house: once law-and-economics-style instrumentalism is left behind, proponents of both Corrective Justice and Civil Recourse must confront the metaphysical implications of their preferred theory of tort.
Azmat, Ahson, Joint-Carving in Deontic Tort (June 29, 2018). Miller and Oberdiek (eds), Civil Wrongs and Justice in Private Law, Oxford University Press (2019), forthcoming .