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What is a Tort?

According to the Palsgraf perspective, today's dominant philosophical picture of tort law, torts are relational wrongs: violations of legal directives that forbid mistreating other people in certain ways. On this view, each cause of action in tort law - negligence, battery, defamation, false imprisonment, and so on - defines a sort of relational legal wrong that tracks a sort of relational moral wrong recognized in ordinary moral thought and practice. It follows that an injured tort plaintiff is barred from recovery unless the defendant has behaved carelessly (or otherwise wrongfully) toward her, in the manner defined by the relevant tort. That the defendant has injured the plaintiff by behaving wrongfully toward other people, or the world at large, does not entitle the plaintiff to redress. This Article challenges the Palsgraf perspective and proposes a different moral picture of tort law in its place. Torts are remedial pigeonholes: coarse doctrinal devices that track, in a rough but serviceable way, the complex conditions under which a defendant is morally liable to provide an injured plaintiff with compensation or other remedial relief. As tort law obliquely recognizes, relational moral wrongdoing is not necessary for remedial moral liability: a defendant may be morally liable to compensate a plaintiff although he has not behaved carelessly or otherwise wrongfully toward her. Rather, the moral core of tort liability is the defendant's moral responsibility for causing unjust damage to the plaintiff, in the sense of infringing some moral right against injury (or fact-relative right, to borrow a term from analytic moral philosophy) that the plaintiff holds. Moral responsibility for rights infringement partly overlaps with, but is distinct from, relational moral wrongdoing. And where the two diverge, the law of torts tracks the former rather than the latter. That is because moral responsibility for rights infringement is tort law's central moral concern. In civil law jurisdictions, tort law is largely composed of legal liability rules that explicitly track the defendant's responsibility for infringing the plaintiff's rights against injury. These rules were extracted from the coarse formal structure of classical Roman law - which consisted of remedial pigeonholes named after relational moral wrongs, like the common law of torts does today - by means of extensive casuistry and theoretical reflection conducted over several centuries by doctrinalists, philosophers, and theologians on the European continent. In common law jurisdictions, no such sweeping attempt at normative distillation and doctrinal reconfiguration is likely to occur. Rather, where moral responsibility for rights infringement diverges from relational wrongdoing, the common law of torts enforces substantive moral judgments about the former by means of a conceptual architecture that largely refers to the latter. The law achieves this feat by means of bare-faced legal fictions (such as the transferred intent and substantial certainty fictions in battery) and doctrinal appendages (such as the derivative actions for wrongful death and loss of consortium). That the common law of torts must resort to these inelegant devices reveals that its formal architecture does not perspicuously exhibit its underlying moral commitments. The Palsgraf perspective goes awry, therefore, by taking this formal architecture at moral face value. Like classical Roman law and the medieval forms of action, the common law of torts does not wear its moral substance on its sleeves.