Particularism and Prejudice in the Law of Tort
11 Tort Law Review 146-167 (2003)
44 Pages Posted: 2 Jul 2013
Date Written: July 1, 2003
Abstract
This article explores the nature of legal reasoning in the modern law of tort. It examines the way modern lawyers utilise justice to argue for desired results. It maintains that this usage inappropriately treats justice intuitionistically rather than in a principled fashion. The intuitionistic treatment of justice is related to four key errors in tort law reasoning increasingly widespread in case law and commentary. The article concludes by examining a reply based on particularistic understandings of moral truth, and maintains that, whatever the nature of moral truth, lawyers must reason in a principled fashion.
Keywords: torts
Suggested Citation: Suggested Citation