Torts Rationales, Pluralism, and Isaiah Berlin

Professor Christopher Robinette of Widener University School of Law recently posted on SSRN an interesting article, Torts Rationales, Pluralism,and Isaiah Berlin, arguing for a pluralist approach to tort lawrationales and emphasizing the importance of context and compensation. Here is the abstract:

    Most modern torts scholars adopt amonistic view of torts, arguing that
    the tort system can be justifiedor explained by reference to a single
    rationale. In contrast, few tortspluralists, scholars believing the tort
    system is based on multiplerationales, have put forward a general theory
    or framework for tortlaw.

    Apluralistic view of the tort system poses significant questions about
    the relationship among the rationales. Do the rationales work together
    as a seamless whole? Do the rationales conflict? If they conflict, how
    does one choose among them? Does the entire system devolve into
    adjudicative relativism, whereby a judge has no rational basis for
    choosing among the rationales in the case of a conflict?

    Inthis Article, I argue that the value pluralism of Sir Isaiah Berlin,the
    late English philosopher, provides the framework in which the torts
    rationales interact. A Berlinian understanding of tort law consists of
    four propositions. First, the torts rationales are truly distinct; eachof
    them conveys a different idea about the purpose of tort law. Second,
    these rationales are objective. Each torts rationale exemplifies a
    legitimate purpose for human beings to pursue. Third, the tortsrationales
    have the potential to be incompatible. Indeed, the theoriesoften entail
    opposing conclusions. Finally, the torts rationales areincommensurable –            
    incapable of being ordered in a timeless hierarchy.

    Thisleaves torts judges, in any given case, in the position of having
    toselect among rationales, which cannot be arranged in a consistent
    hierarchy and may be incompatible. Berlin has little advice about the
    issue of choosing among options as a general matter. However, his
    comments on choice indicate that context is by far the most significant
    factor in making the decisions. If the torts rationales are “unrankablein
    the abstract,” context allows judges to rationally choose amongthem.
    Thus, the lesson for scholars is to focus on the contexts oftorts. Although   
    this contradicts the current monistic trend in tortsscholarship, with its                                     
    concomitant de-emphasization of the particular,the emphasis on context
    is completely consistent with the common lawitself.