Tort Law without Interpersonal Justice

Abstract

Gregory C Keating's Reasonableness and Risk presents a sophisticated analysis of tort law, intertwining considerations of distributive and interpersonal justice. While his treatment of the distributive aspect of tort law and its role in protecting core interests, such as safety and bodily integrity, is compelling and influential, I argue that his conception of strict liability introduces significant theoretical distortions. In particular, Keating asserts that in strict liability torts, agents are not under a duty not to harm, but are only under a duty to pay compensation. This creates a dissonance with negligence law that ultimately undermines interpersonal justice as an explanation for the normative structure of tort law. I contend that this is due to his overemphasis on the aggregative-distributive framework. My critique suggests that Keating's theory can be adjusted to better reflect the way that tort law is committed to both social and interpersonal justice