What we need is a uniformly accepted theory that explains the tort liability system in terms of its ultimate social function. The reason we don't have one, I will argue, is that our understanding of the tort liability system has been skewed by an earlier, flawed attempt at descriptive theory. Before embarking on a new search for a descriptive theory, we first ought to formulate a search plan, sometimes called, forbiddingly, a "theoretical methodology." Using John Finnis's social science methodology, we can identify the two halves of the focal case of tort liability: intentional battery and negligent infliction of personal injury. Next, history provides the key to an accurate description of negligence liability because it identifies the theoretical origins of the modern unreasonable foreseeable risk explanation of the negligence standard. Once we have identified the origins of that explanation, we can identify the theoretical problem: how to adequately describe a system influenced to some extent by a prior inaccurate theoretical description. The historical and practical inquiries ultimately combine to provide a unified description of battery and negligence liability. This unified description of negligence and battery identifies a common structure to the claims of wrong redressible in the two causes of action. Once we identify the underlying structure of a negligence claim, we can begin to solve the doctrinal puzzles in negligence law.
Patrick J. Kelley,
Who Decides - Community Safety Conventions at the Heart of Tort Liability,
38 Clev. St. L. Rev.
available at http://engagedscholarship.csuohio.edu/clevstlrev/vol38/iss3/3