Tort statutes and tort theories

Abstract

Despite the significant inroads made by the legislature into tort law, many scholars believe tort law to be an essentially common law subject and have focused their attention accordingly. Serious consideration has never been given to the challenges that statutory tort law poses for theories of tort law. This article examines the implications of statutes for corrective justice and rights-based theories of tort law in order to determine whether these leading theories accurately explain tort law once statutory tort law is taken into account. It establishes that statutes form part of tort law and argues that the theories under examination fail to explain important aspects of statutory tort law. Partly because of this failure, they are not satisfactory accounts of the whole of tort law, which is often how they are presented by their proponents. (Quotes from original text)