TORT LAW & HOW IT'S TIED TO OUR CULTURE

A comprehensive historical tour of tort law considers its development within a cultural and philosophical context.

According to Madden, “Tort law has always represented a society’s revealed truth as to its better self, and further to so doing, has identified the behaviors it wishes to encourage and the behaviors it wishes to discourage.” As a consequence, a full appreciation of tort law’s historical unfolding requires a broad interpretive horizon that includes an analysis of socio-economic conditions, religious and philosophical commitments, and shifting cultural realities. The author’s approach is impressively expansive—he covers the birth of tort in ancient law, including the Torah, the Quran, and Tibetan folk law, through the partnership of common and statutory law in the present. Madden contends that tort law aims for a balance among justice, morality, and efficiency, and so its establishment not only expresses the heart of a culture, but also functions as a lucid gauge of progress. He also argues that the arc of tort law’s development has been one leaning toward scientific progress. The author examines a breathtaking swath of intellectual territory, including a keen consideration of the roles of myth and folklore, and offers delightfully unconventional views. For example, Madden deftly explores the extent to which the Goths appropriated Roman law. Unfortunately, his writing is arthritically stiff and overdone—as gratuitously entangled as it is verbose: “It would be anomalous to suppose that injury law, by reason of its ancient articulation in moral terms, ought be immune from scientific deconstruction and reanalysis in the scientific terms of economic efficiency, and it verges on impossibility to propose that it will fail to find greater and greater employment in tort theory, adjudication, and statutory adoption.” But readers patient enough to wade through these turbid waters will be well rewarded.

Despite the dense prose, an illuminating and insightful historical work about tort law.