This handsome, fascinating and formidably well-researched volume reflects on the lives and writings of 11 academics and one judge who dominated tort scholarship in the twentieth century. It should be essential reading for anyone who teaches tort law, especially those just starting off in their careers – I can think of no quicker or pleasanter way for a neophyte tort academic to come to understand both the height of the giants on whose shoulders they will be sitting and the views of tort law that can be obtained from that vantage point. Reflection on the essays in this volume will also teach budding tort academics some further lessons.
The first lesson is that if we are to stand, and not sit, on the shoulders of the giants who came before us and see further than them, our perspective on tort law must be one that builds on those giants’ views by acknowledging and accommodating the strengths of those views, while transcending their weaknesses. Merely focussing on the weaknesses is counter-productive: hacking a giant to the ground and standing on their body may allow us to see a little further than we could otherwise have done, but not anywhere near as far as we could have, had we allowed the giant to lift us up to their level. For the most part, this volume succeeds splendidly in enabling us to enter into the minds of our great predecessors in thinking about tort law. However, there are some missed opportunities.
John Goldberg and Benjamin Zipursky elegantly plough a familiar furrow in comparing unfavourably Oliver Wendell Holmes’ view of tort law – as geared towards making those at fault for another's loss pay compensation for that loss – with Thomas McIntyre Cooley's earlier view of tort law as a system for the redress of wrongs. While I agree with Goldberg and Zipursky that Cooley's view “is vastly superior”, the question I would have liked them to address at length (rather than glancing at it in one paragraph) is whether Holmes’ view of tort law was fundamentally affected by his experience of living through, and fighting in, the American Civil War, in the same way that Hobbes’ political theory was obviously marked by the English Civil War. After all, the claim that tort law is a system for the redress of wrongs can only seem pathetic and hypocritical in a community that can no longer agree over what a “wrong” is, or which bears the scars of the millions of unredressable wrongs that are the inevitable concomitant of civil war. So it may be that in thinking about tort law, the real lesson of the disagreement between Holmes and Cooley is not that Holmes was wrong and Cooley was right, but that their different visions of tort law were suited to different kinds of community: within a relatively peaceable community, tort law is well-suited to providing redress for wrongs; but once that community begins to break up into warring factions, all tort law can legitimately do is pursue Holmes’ more modestly ameliorative vision of its mission.
Michael D. Green condemns Francis Bohlen for adopting the position that a tortfeasor D can only be said to have caused V to suffer some kind of loss (L) if D's tort was a “substantial factor” in V's suffering L. As any fule kno, D should be said to have caused V to suffer L if V would not have suffered L “but for” D's tort. Any other facts about how V came to suffer L should be regarded as irrelevant to the question of whether D caused V to suffer L and as going instead to the question of what the “scope” of D's liability to V should be. In failing to see this, Bohlen “committed an unfortunate and substantial error of judgment”, with the result that his work on causation “was subpar terminologically, structurally, conceptually, and substantively” (p. 164). A more sympathetic approach to Bohlen's work would have allowed Green to see much further than he is currently capable of doing. No one in their right mind would say that Julius Caesar's being assassinated in 44 bc was a cause of the Conservative Party obtaining an 80 seat majority in the UK's December 2019 General Election – but it is as certain as anything can be that Caesar's assassination was a “but for” condition of that majority being obtained, as it has been of virtually anything of significance that has happened in the West since 44 bc. And these right-minded people would be very puzzled to be told that they are confusing the issue of what events were caused by Caesar's death with the “scope of liability” for Caesar's death, as there is no liability at stake in asking whether Caesar's assassination was a cause of the Conservative Party's winning the 2019 General Election. So pace Green and the very many academics who currently think like him, issues of causation cannot be reduced down to questions of whether X would have happened “but for” Y's happening. Something more is required – and it is that “something more” which Bohlen was groping after with his “substantial factor” criterion for resolving causation issues. This criterion allows us to say that Caesar's assassination was not a cause of the Conservative Party's recent majority, while the length of the axles on Roman chariots was a cause of the solid rocket boosters on the US Space Shuttle being the size they were (look it up). Green would have done better – and put us all in his debt – if he had used his chapter to improve on Bohlen's “substantial factor” criterion for causation instead of simply dismissing it as an inexplicable aberration on Bohlen's part.
The second lesson is that any weaknesses in the views of tort law propounded by the scholars under discussion in this volume were almost always a result of those scholars’ thinking that tort law is something that is not tort law, such as an offshoot of the criminal law (Salmond), or “a form of enforced morality” (Pollock, Winfield), or a scheme for spreading losses throughout society (Fleming James Jr), or a means of delivering compensation to those in need (Prosser, Fleming, Atiyah). All these theorists would have done better to adopt as a working hypothesis the proposition that tort law is not like anything else: it is its own institution, performing a distinctive function that no other institution in our society performs or could perform. The fact that they did not adds weight to John Goldberg's accusation, made elsewhere, that tort law is “unloved” in the legal academy. Loving someone involves (among other things) seeing that person as unique and refusing to equate them with anyone else, let alone seeking to replace them with an “upgrade”. But that is not how most of the giants discussed in this volume treated their subject. Instead, they scolded tort law for being tort law, and for not being something else. Why tort law should have been unloved even by those who spent the most time in its company is a mystery that is not clearly solved by this volume. However, there are hints here and there that our scolding giants had drunk too deeply from the well of legal realism (represented in this volume by an excellent chapter on Leon Green) for them to be able to appreciate tort law on its own terms. The disrespect for law and its forms that legal realism inculcates – encouraging people to believe that law is a Wizard of Oz, pulling the wool over its subjects’ eyes as to its real nature and what it is really doing by conjuring up a miasma of words and effects – meant that the standard approach to tort law for most of the twentieth century was to try to unmask it, so as to reveal its secret identity. It was only towards the end of the twentieth century that the idea occurred to treat tort law on the basis that it is what it is, with revolutionary results for our views of tort law. But that is a story that will have to be dealt with in a follow-up volume many years from now, as the editors of this volume wisely confined their attentions to those who had already passed away at the time of writing.
The third lesson is that while the idea of a descriptive theory of tort law is nonsensical (the idea that there can be such a thing is attributable to a misreading of Stephen A Smith's Contract Theory (Oxford 2004), 4–5, where Smith talks not of descriptive theories of private law, but descriptive accounts), it is impossible to present the kind of descriptive account of tort law that one might find in a tort textbook without taking a position on theoretical debates over: (1) the principles underlying the decisions in tort cases, (2) the meaning of words and concepts used in tort cases (such as duty or causation), and (3) the goals pursued by the courts in deciding tort cases and the legislature in legislating to reform tort law. These debates are theoretical in that (1) they attempt to make sense of, and are therefore accountable to, a fixed reality (in this case, tort cases and statutes), and (2) they can never be authoritatively resolved (and, in particular, they can never be authoritatively resolved by a judge deciding a case – while judges get to decide the outcome of cases, they do not get to decide how their decisions are to be explained). The dependence of description on theory is repeatedly made clear by the chapters in this volume that deal with tort textbook writers (Pollock, Salmond, Winfield, Prosser and Fleming) where various positions taken by these writers in their textbooks are shown to have been informed by underlying theoretical commitments. Even someone like William Prosser – who is said to have “hated ‘academic theory’” – could not get by without taking various theoretical positions in relation to tort law, such as that the notion of duty in tort law is “meaningless”, or that many tort cases can be explained on the basis that those with deep pockets are made to pay compensation to those without. There are a couple of voices in this volume that question whether descriptive accounts of tort law need be so dependent on theory. In her chapter on Tony Weir, Paula Giliker quotes Tony as saying that “tort is a bag of nuts and bolts. History can say how they came there, but science is pressed to rationalise their presence” (p. 350). And Robert Stevens takes the chance in his chapter on Frederick Pollock to argue that “the (very valuable) job of the textbook writer of description is not ‘theoretical’ in any sense… It is a job of reportage: the useful cataloguing of the positive law facts” (p. 92). However, it is clear that Stevens identifies “theory” with normative claims about what the law ought to be. For myself, I doubt that it is right to call such normative claims “theoretical” (and it seems Tony would have agreed, calling out as “stupid” the question “What is your normative theory of tort?”). If I tell Robin Hood he should not be robbing the rich to pay money to the poor, no one would say I am making a “theoretical” claim – so why does a similar claim in relation to tort law suddenly qualify as being “theoretical”? As for Tony's anti-theoretical stance, it is self-refuting: his claim that tort law is a “bag of nuts and bolts” is itself a theoretical claim about tort law and cannot therefore be relied upon to deny the importance of theory to describing the law.
The editors promise, in the preface, that this volume will be “the first of several concerned with scholars of private law who have played a significant role in defining the field in which they worked”. If so, we are in for a treat. But I hope future volumes will include a centrepiece of photographs of the subjects of the chapters – the lack of one in this volume is the only defect in what is otherwise a spectacular triumph.
