How is Tort Law Political?

Abstract Chapter 16 addresses Gardner’s take on the particular relationship between tort and the political. Flagging of a link between tort and the political is most evident in his discussion of the negligence standard. Equally, Gardner set out the reasons why distributive questions (which are typically associated with the political) are inescapably a part of the law of tort, and not merely external to it. In both of these two senses in which tort could be called political, Gardner’s position is, essentially, one of reassurance. Tort is unavoidably political, but is none the weaker for that. Finally, Gardner argued that tort could, through its distribution of security rights, be seen as promoting a “mode of social power” which is in some sense distinctive and potentially (if the appropriate rights are distributed) deserving of political support. Tort begins with the protection of value, through security rights, and not of “autonomy”: at core it is a preserver of value in the form of the continuity of a life. The chapter explores whether tort can be seen as advancing protection of security rights in a progressive fashion, and whether it can be urged that this is of distinctive political significance, despite the blurring of boundaries between law and politics.