Duties in Tort Law and Its Theory

• Main Author: Boonzaier, Leo
• Format: Dissertation
• Language: English
• Published: ProQuest Dissertations & Theses 01-01-2020

This thesis has three aims. The primary aim is to consider the widespread claim that torts are wrongs or (equivalently) breaches of duty. This claim is often presented as essential to understanding tort law's true nature and, relatedly, to the refutation of 'instrumentalism'. I argue against the claim and in favour of duty-scepticism. This requires me to disambiguate the claim, reject some of its meanings as trivial or tautologous, and argue that those that remain fail to identify a necessary or general feature of tort law. Importantly, however, I also reject the common association between duty-scepticism and instrumentalism. The insistence that torts are breaches of duty has therefore become a distraction in the debate against the instrumentalists, who would be better refuted in other ways. The second aim of my thesis is to do this, by explaining how the defendant's liability may be justified (non-instrumentally) by his harm-causing conduct (whether or not that conduct is a breach of duty). Here I rely upon the well-known 'continuity thesis', which I defend from certain objections. One of its implications is that defendants' duties of repair arise strictly (that is, regardless of fault) and that this is indeed the logically primary case. That then leads to my third and final aim, which is to explain why tort liability is conditional, in the vast majority of cases, upon defendant fault. I do this by identifying several benefits in having a fault standard, while arguing that these remain, in an important sense, secondary. My thesis as a whole therefore decentres fault and wrongdoing, two concepts often taken to be integral to anti-instrumentalism, while nevertheless showing, through the continuity thesis, that anti-instrumentalism is ultimately correct.