Legal Pluralism in Tort Law Theory: Balancing Instrumental Theories and
Corrective Justice, U. Mich. J.L. Reform (forthcoming, 2015).
Unified-monistic theories focus on a single goal of tort law, usually corrective justice,
distributive justice, or optimal deterrence. Unlike these approaches, mixed-pluralistic theories
of tort law attempt to produce a balance between various goals by integrating several of the
considerations underlying the different goals of tort law. These theories of legal pluralism
reflect ideological diversity within national legal systems, in this case between different
theories of the same legal system. The Article discusses the challenge of legal pluralism to
settle the possible collision between different goals of tort law, that is, within the framework
of tort law theory.
Starting from a position of support for the mixed-pluralistic thesis, the advantages offered by
current mixed-pluralistic approaches are identified, and a new mixed-pluralistic approach is
proposed which is adapted to the multitude of significant changes that have affected
contemporary common tort law in recent years. This new approach divides negligence issues
into two principal categories on the basis of the profile of the defendant and the nature of his
tortious act, concurrently striking a balance between the various goals of tort law, as the
situation warrants. Thus the suggested mixed-pluralistic approach offers a new and real
balance between corrective justice and instrumental theories, that is, distributive justice and
optimal deterrence, and between deontological and utilitarian theories. The approach will be
implemented through the presentation of a number of tort issues, some traditional and
classic, others modern and novel, and an examination of solutions to these issues through the
prism of the proposed approach.
The suggested approach challenges the study of law and economics and corrective justice by
trying to delimit their dominance as sole goals. It also corresponds with other pluralistic
approaches to the study of tort law.