Philosophy of tort law, ironically, owes its preoccupations and shape, in large part, to
an altogether different discipline: economics. H.L.A. Hart and Tony Honoré’s 1959
masterpiece, Causation in the Law, was a key influence in the development of
philosophy of tort law, but it was the surge of economic analysis of tort law in the
1960s and 1970s that stimulated the reaction that accounts for so much of what
philosophy of tort law is today. Law and economics represented the culmination of
various strands in the history of torts, providing a coherent and seemingly powerful
lens through which tort law could be viewed. That efficiency and the maximization of
aggregate wealth guided economic analysis, however, revealed the approach to be a
particular, and particularly crude, version of consequentialism. Consequentialism in
its various forms had long ruled moral and political philosophy, so it was only natural
that it would penetrate the normative domain of tort law. But in the 1970s the tide
began to turn. And it was in the wake of the general revival of non-consequentialism
that George Fletcher, Jules Coleman, and Ernest Weinrib staked out non-consequentialist
alternatives to the economic analysis of tort law.
Their early efforts were important as first-order contributions to theoretical debates
about tort law, of course, but they also helped to substantiate philosophy of tort law’s
standing as a distinct subfield within philosophy of law. David Owen provides a
succinct history of tort theory as a discipline in his introduction to Philosophical
Foundations of Tort Law, Oxford University Press’s 1995 predecessor to the present
volume, and identifies a Law and Philosophy symposium as a signal event in the
development of the field. What was so important about that two-issue symposium
published in 1982 and 1983, according to Owen, was that philosophers, including
Fletcher, Coleman, and Weinrib, presented a unified front against the economic
analysis of tort law, and that Coleman and Weinrib presented early sketches of their
quite different corrective justice theories of tort law alongside each other.