Explanation, Human Nature, and Tort Theory


The article argues that, as they are usually stated, corrective justice theories of torts and economic efficiency theories fail to contradict one another. Thus, although the literature typically sees these approaches as doing conceptual battle, it takes a good deal of philosophical analysis to discover a theoretical framework from which to assess one perspective as superior to the other. Indeed, in many cases the corrective justice scholar appears to be talking past the economic lawyer, and vice versa.

The article then goes on to suggest that the one perspective from which we can see a genuine conflict between the explanations being offered for the history of tort rules is basic human nature. The secular natural law theorist can suggest that human evolutionary history has produced, not a race of “utility maximizers,” or at least not exclusively so, but of constrained agents with an innate sense of justice and a biological predisposition to cooperate in many circumstances. Biologically based secular natural law then provides a contrasting view of human nature that fits beautifully with a corrective justice perspective in the law.


Economics | Jurisprudence | Law and Economics | Torts

Date of this Version

January 2006