The article briefly discusses the impossibility of a strict formalist or positivist approach to legal adjudication and the necessity and plausibility of a principled approach, according to which it is necessary to resort, explicitly or implicitly, to the principles underlying the positive expressions or sources of law to identify, interpret and apply the law, in easy as well as hard cases. The legitimacy of the principled approach crucially depends on resort to the community's moral principles as embedded in the existing law -- those moral principles which best explain as much as possible of the existing law -- rather than allowing, as Ronald Dworkin has argued, judges to adopt whichever moral principles they subjectively deem best that satisfy some minimum threshhold of descriptive fit. Do such moral principles exist, embedded in the law? Many legal skeptics argue that they do not. The two principal competing moral theories of law are the justice theory, based on the foundational norm of maximizing everyone's equal individual freedom, and the utilitarian efficiency theory, based on the foundational norm of maximizing the total aggregate pleasure, happiness or wealth of the society as a whole. After briefly describing each theory and its implications for legal obligation, a brief survey is undertaken of several major tort doctrines or issues: plaintiff's consent as a complete defense, plaintiff's contributory negligence as a complete or partial defense, the distinction between intentional torts and the tort of negligence, the distinction between tort law and criminal law, and the availability of punitive damages in tort law. The justice theory explains and justifies each of these doctrines and distinctions, while the utilitarian efficiency theory is not able to explain or justify any of them. Similar findings were made for the major elements of negligence law in a prior essay, "The Standards of Care in Negligence Law", which was published in Philosophical Foundations of Tort Law, OUP 1995).
Richard W. Wright,
Principled Adjudication: Tort Law and Beyond,
Canterbury L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/fac_schol/706