Legal pluralism in tort law theory: balancing instrumental theories and corrective justice

ABSTRACT
Unified-monistic theories of tort law focus on a single goal, usually corrective justice, distributive justice, or optimal deterrence. Unlike these approaches, mixedpluralistic theories attempt to balance between various goals of tort law by integrating several of the considerations underlying these different goals. These theories of
legal pluralism reflect ideological diversity, in this case between different theories of
the same legal system. This Article discusses the challenge of legal pluralism to settle
the possible collision between different goals of tort law within the framework of tort
law theory.
Starting from a position of support for the mixed-pluralistic thesis, this Article first
identifies the advantages this approache offers and then proposes a new mixedpluralistic approach which is adapted to the multitude of significant changes that
have affected contemporary common tort law in recent years. This new approach
divides (mostly negligence) issues into two principal categories based on the profile
of the defendant and the nature of his tortious act, striking a balance between the
various goals of tort law, as the situation warrants. Thus, the suggested mixedpluralistic approach offers a new and actual balance between corrective justice and
instrumental theories-that is, distributive justice and optimal deterrence. It balances between deontological theories, which are interested in the moral aspect of a
tort action, and utilitarian theories, which are interested in the consequentialist
outcome of a tort action. The proposed approach will be implemented through the
presentation of a number of tort issues, some traditional and classic and others
modern and novel.
The suggested approach challenges the study of both 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 torts