The Anatomy of Tort Law by Peter Cane

By Peter Cane

A brand new conceptual framework for the legislations of tort, and personal legislations normally, from one of many world's prime educational legal professionals.

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5 Moreover, because our positive achievements in life are also more or less affected by factors beyond our control ("good luck"), it would be morally reprehensible to accept the credit for them without being prepared to shoulder the blame for our failures, even though these are the result, more or less, of matters beyond our control ("bad luck"). Luck is an inescapable fact of life, and our ideas of personal responsibility to a large extent ignore it. It is only when a person's luck is abnormally good or bad that we are likely to take it into account in allocating praise or blame to them.

However, this account of the law of tort is adequate only if we concentrate on its function of dispute settlement (as opposed to its function of guiding conduct) and only if we treat court decisions as being relevant only to the actual parties to the dispute before the court. 18 Consider Donoghue v. Stevenson again. If we assume that before that case was decided, consumers in the position of Mrs Donoghue could not recover damages from manufacturers in the position of Stevenson, while after the decision they could, it becomes clear that one result of the case was to alter the distribution of resources in society by giving consumers a right of action against manufacturers which they did not have before.

Civil law is a social institution by which we organize and interpret human conduct in a particular way. A central feature of civil (or, as it is sometimes called, "private")13 law is "bilateralness" or (more euphoniously) 12 The most important interest in this last category is the interest in personal health and safety, which each human being has by virtue of being human. The point made in the text — that tort law does not create the interests it protects — is not inconsistent with the argument made below {see pp.

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