In The Idea of Private Law, Ernest Weinrib makes an arresting claim. He says that private law-by which he means primarily the law of contract, restitution, and especially tort-is "just like love."'
Even members of a discipline devoted to analogies may be forgiven for not immediately perceiving the point of this one, particularly if we focus on the private law of tort. Few law students would mistake negligence, defamation, or battery for love, and if they did, their professors might be concerned for their well-being. Likewise, it is difficult to recall another law professor writing of love and tort in the same breath, except perhaps in connection with the old causes of action, now regaining some currency, for alienation of affections and criminal conversation.
Still, it is a mark of a beautiful mind-and Professor Weinrib has one-to be able to draw connections others have not thought to draw. So it is worth pondering this comparison: In what way is tort law "just like love," according to Weinrib?
His answer is that tort law is like love in that it cannot be understood by reference to its purpose or function. To make this assertion is not to deny that tort law has practical significance. Love, after all, is of the utmost importance. Rather, it is to say that tort law cannot be made intelligible by reference to the social functions it happens to perform. We do not gain an appreciation of love by describing it in terms of a function that it serves. Of course, one could describe the phenomenon of love as, say, a practice that permits the socially optimal allocation of scarce emotional resources. One could even profitably describe it that way, although the profit would stem from the ill-fittingness of the description: By exactly failing to capture the phenomenon, it would thus teach us something important about it.
Similarly, says Weinrib, we should understand tort law not for all the things it does, but for what it is. To invoke a different analogy, tort to Weinrib resembles sport. The sports fan appreciates how the rules, practices, and participants in a game like baseball or basketball come together to create a distinctive enterprise. Yet he or she does not ask what is the point or purpose of the sport. That issue is out of bounds. Again, this is not to say that sport has no consequences. Rather, it is to say that when trying to grasp sport-and so, by analogy, when thinking about tort-we ought to strive to understand it from the inside, as an internally intelligible practice without reference to its social functions.
John C.P. Goldberg,
Unloved: Tort in the Modern Legal Academy,
55 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol55/iss5/3