A popular view among tort theorists is that an explanation of tort law must take account its ‘structure’, since this structure constitutes the law’s ‘self-understanding’. This view is used to both criticize competing functional accounts of tort law, especially economic ones, that are said to ignore tort law’s structure, and, more constructively, as a basis for explaining various tort doctrines. In this essay, I consider this argument closely and conclude that it is faulty. To be valid, one needs a non-question begging way of identifying the essence of tort law. I argue that law’s ‘self-understanding’ can only make sense if it means the understanding of certain people. Examining those, I conclude that the claim of structuralists is false, for there are many people who take its function to be central. I then further show that if one wishes to understand the development of tort law’s doctrine one must take both structure and function into account. I demonstrate this claim by examining the development of the doctrine dealing with causal uncertainty and vicarious liability.
Dan Priel, Structure, Function, and Tort Law, Journal of Tort Law. Published Online: 2020-02-29. DOI: https://doi.org/10.1515/jtl-2020-2001.