A Dilemma for Interpretivist Theories of Tort Law
Date & Time: April 16, 2025 (Wednesday) 12:30-13:30
Venue: Room 723, 7/F, Cheng Yu Tung Tower, The University of Hong Kong
Language: English
(In-person event)
Abstract:
Many tort law theorists seek to understand the nature of tort law – that is, to make tort law intelligible. They often do so by adopting the so-called interpretive approach, which tries to both describe and normatively or morally justify tort law doctrines and practices.
In this talk, I argue that interpretivists face a two-horned dilemma. The first horn is what I call the problem of proportionality: We do not know how much a theory should describe and how much it should justify in order to be counted as a successful theory.
To resolve this, I propose that interpretivists could appeal to two considerations in the contemporary philosophy of psychology: (1) a conception of rationality as morality – that is, being rational is being morally or normatively justified, and (2) the idea that rationality is necessary for intelligibility in psychological interpretation. By integrating these considerations, interpretivists could argue that portraying tort law as normatively or morally justified makes it rational – and thus intelligible, the ultimate goal of tort law theory. This allows interpretivists to favor the distribution between description and justification that maximizes justification: interpretivists should justify as much as possible to make tort law rational and intelligible, while describing just enough to ensure they are still interpreting tort law.
Yet this solution leads to the second horn of the dilemma. By relying on rationality as morality to resolve proportionality, interpretivists are very likely to fail to understand what tort law actually is. I argue that tort law is an output of behaviors and thoughts of many different minimally rational agents, whose moral views are varied and whose reasoning capacities are largely non-ideal. Thus, tort law is very unlikely to be morally justified. Hence, interpretivists face the dilemma of either confronting the problem of proportionality or failing to understand tort law.
Speaker:
Yubo Wang holds a PhD in Law from University College London (specializing in jurisprudence) and is a Hongyi Postdoctoral Fellow at Wuhan University School of Law. He earned his LLM in Jurisprudence and Legal Theory from UCL, along with a Master and a Bachelor of Law from China University of Political Science and Law. His research focuses on general jurisprudence and philosophy of tort law, drawing on resources in contemporary philosophy – such as metaethics and the philosophy of psychology – to examine questions within and surrounding legal theory.
Chair:
Jing Hui is the Deputy Director of Philip K.H. Wong Centre for Chinese Law, Assistant Professor at The University of Hong Kong.
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