Allan Beever Delivers TLRG Public Lecture
On October 15, Professor Allan Beever gave the first Tort Law Research Group (TLRG) Public Lecture of the 2018-2019 academic year. Professor Beever, a leading private law theorist from Auckland University of Technology Law School, spoke to an audience of students and faculty at Western Law on the topic, “Tort Law and The Tort System: From Vindictiveness to Vindication.”
In his lecture, Professor Beever argued that we can evaluate accounts of tort law (such as the corrective justice approach) from two different perspectives. First, we can consider such accounts from the perspective of tort law – understood as a specific area of legal doctrine. Second, we can consider such accounts from the perspective of the tort system – understood as a system with the important social function of providing compensation for certain kinds of injuries. While both of these approaches to studying tort law are valuable for their own sake, Beever argued, no theory of tort law that ignores the tort system can be considered adequate.
While the corrective justice approach developed by scholars such as Ernest Weinrib and Arthur Ripstein may be able to offer a successful account of the doctrine of tort law, Beever argued, the corrective justice approach does not adequately explain and justify the tort law system. According to the work of scholars such as Tom Baker and David Campbell, the everyday empirical reality of the tort system bears little resemblance to the conception of tort law offered by Weinrib and Ripstein. In particular, Beever argued, Weinrib and Ripstein’s approach cannot explain the reality of how tort law remedies operate; for example, the role of insurance in determining when and from whom victims can seek compensation is an essential part of the reality of how tort law operates that cannot be explained or justified by the approach to remedies offered by Weinrib or Ripstein. Corrective justice may in fact be supporting tort law remedies that are so distributively unjust that they cannot be pursued in the real world.
This gap between corrective justice theory and the reality of the tort law system, Beever argued, is an important issue to be addressed in future scholarship. We must either bring tort law theory into greater conformity with the reality of the tort law system on the ground – or, perhaps more appealingly, we must bring the world into greater conformity with tort law theory.
Professor Beever’s lecture can be viewed here.
The TLRG’s Public Lectures for the 2018-2019 academic year are generously sponsored by Shillingtons LLP.