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What is tort law?

Policy

At a number of points in your study of tort law you will come across references to ‘policy’. Most often this will be when judges or commentators explain decisions on the basis that they give effect to particular ‘policy’ considerations. As such, policy tends to be used to describe a certain type of factor or consideration which courts do or may take into account when deciding cases and framing legal rules. But what types of factor fall under the head ing ‘policy’? The difficulty here is that the language of ‘policy’ appears to be used by different people at different times to mean different things. Even worse, those who make reference to ‘policy’ often fail to explain exactly what they mean by this. Sometimes, the language of ‘policy’ is used to describe all factors that may have a bearing on how a case should be decided and how the law should develop. On this approach, every argument you might make about the law—what rules we should have, who should win a given case—is an argument of policy. Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995], for example, seemed to be using ‘policy’ in this sense when he said that ‘the public policy consideration which has first claim on the loyalty of the law is that wrongs should be remedied’ (at 749). Policy here covers arguments of morality or justice, economic considerations, questions of resource allocation—in short, everything . The question here is not what role policy should play in the law—all law is necessarily driven by policy of some sort. Rather, it is simply what particular policies the law should advance or embody. More commonly, however, ‘policy’ tends to be used to describe a particular subset of factors or arguments that the courts may employ when deciding cases. Here, policy is simply one thing the courts may turn to when determining the shape of the law, and is to be contrasted with other sorts of factors or considerations. This was most famously articulated by the legal philosopher Ronald Dworkin, who distinguished ‘policy’ from ‘principle’. 25 His distinction was essentially that between moral standards and other sorts of arguments—principles are based on notions of individual fairness and justice, while policy by contrast covers so-called collective goals such as wealth maximisation or the encouragement of particular activities or trades. As such, policy is essentially defined by reference to what it is not. Policy is anything other than arguments of justice and morality.

The same point has been made by Joanne Conaghan and Wade Mansell, who describe policy as a ‘“catch-all” phrase, used by judges and commentators alike, to describe judicial consider ations which are “non-legal”, that is not based on a recognised legal principle or an established precedent’. 26 Typically then, policy arguments look beyond the particular facts of the case at hand and the relationship and dealings between the particular claimant and defendant, to consider the wider social, economic and political impact of imposing liability. In other words, the question is not simply ‘is it fair to make the defendant liable to the claimant?’ but rather ‘what would be the consequences for society at large for imposing liability in situations such as this?’ Unsurprisingly, perhaps, such arguments tend in practice to be used more commonly to deny rather than to allow claims. → PROPERTY OF OXFORD UNIVERSITY PRESS

25. Ronald Dworkin Taking Rights Seriously (Duckworth 1977). 26. Joanne Conaghan and Wade Mansell The Wrongs of Tort (Pluto Press 1999) 204.