Unsticking American Tort Theory

In the United States, the debate over the foundations of tort law is at an impasse. On one side of the dispute, economic theorists contend that tort law is primarily concerned with the forward-looking aim of maximizing societal wealth. The most prominent critics of this view claim that an economic analysis of tort law cannot explain the field’s backward-looking concern with achieving corrective justice by remedying wrongs. Despite the strength of this critique, economic theorists have a legitimate response available to them: corrective justice describes the reparative aspect of tort law, but it stops short of providing a justificatory account of the field’s primary rights. Economic theorists claim that without such an account, their critics’ theory stands in need of justification and cannot serve as the foundational principle of tort law. In this article, I explain how philosopher Alan Gewirth’s work can help make progress toward resolving this impasse by articulating the foundation of tort law’s primary rights and explaining the field’s bilateral structure. Gewirth’s argument for what he calls the principle of generic consistency provides a rational standard for determining the rightness and wrongness of all human action, including the activity of lawmaking. As such, the principle of generic consistency can serve as the rational foundation for the primary rights and duties at the heart of tort law. In this way, Gewirth’s theory can overcome the difficulty corrective justice theorists have in providing an account of tort law’s primary rights. Further, the principle of generic consistency can explain tort law’s backward-looking concern with remedying wrongs in a way that economic theorists cannot