The perceived threat of punitive elements in tort law to the long-standing distinction between private and public law is so powerful that tort theorists have generally responded by depicting punishment as an anomaly. They have corseted punishment within tort law’s rectificatory framework, equated punishment with deterrence, and squeezed the victim’s standing to demand punishment into a legal power for private redress. This chapter takes a close look at these guarded reactions from tort theorists to the question of punishment and how they explain not only the scarcity of theoretical reflection on the place of retribution in tort law but, additionally, the unsuitability of those theoretical reconstructions for a productive delineation and justification for the punitive, compensatory, and deterrent dimensions of the law of torts. The chapter ultimately argues that this gap in tort theory should be addressed by seeking a place for punishment in tort law that is neither constrained by the traditional treatment of punishment as an “anomaly,” as “compensation,” nor as a corollary regulatory mechanism whose exclusive aim is “deterrence.”

Interdependence-generating goods will not arise unless actors view arrangements as right or correct. This perception gives rise to a preoccupation in communities with what is just. It necessitates the development of a theory of justice that coordinates with the theory of community developed above. Justice in relation to goods can be thought about in two forms: either as a matter of the good’s distribution ex ante or its correction ex post. Nevertheless, this two-fold structure is simplistic in that it fails to account for the fact that justice must promote an ideal of just relationships. The theory of justice developed in this chapter therefore posits that the interaction of distributive and corrective justice over time gives rise to transformative justice. The transformation in question relates both to the nature of the good and the attendant conception of a wrong. The chapter details how transformative justice is an outcome visible in both international and WTO law. At the same time, the chapter suggests that WTO law’s transformative justice is not perfectly just, a deficiency that gives rise to a continuing impetus at reform.

This chapter deepens the insight that tort law fulfils a societal role. It locates the classical model of tort liability, namely individual responsibility, within a wider privatist societal constitution. Both contract and tort, however, are understood as second order observations of the knowledge base of society, which has broken free of tradition and centralized authority in modernity. Therefore, private law models its dynamic knowledge base, and provide a constitution of civil society that unleashes experimentation and enables a 'relational rationality' to unfold. The gradual emergence classical tort law is documented, and its constitutional role underscored through examples from of private and public liability in English, French and German law. The society of individuals on which the law of torts is modelled, however, begins to rupture by the end of the 19th century, and it becomes increasingly difficult to frame all legal problems as issues of corrective justice. Nonetheless, the legacy of classical tort law, is a model of individual responsibility, which continues to shape scholarly engagement with tort law, and continues to impact on how legal problems are perceived in law.

This chapter illustrates how the core progressive property tension between guarding against unfair exploitation and avoiding excessive constraint of legislative freedom translates into compensation doctrine. It considers the nature and degree of constitutional protection for security of value that has resulted from the Irish property rights guarantees, including a presumptive entitlement to full compensation for deprivations, and a presumptive lack of entitlement to compensation for regulatory interferences falling short of deprivation. That analysis demonstrates how constitutional property law can combine rule-based and contextual judicial decision-making to generate relatively predictable legal principle. It further illustrates the running theme of judicial deference to political decision-making concerning the mediation of property rights and social justice, since the courts have created space for legislative exceptions to presumptive compensation entitlements to secure social justice.

The notion of responsibility in international law involves the violation of an international obligation for which a State can be held liable. The concept of common but differentiated responsibilities (CBDR) however does not squarely fit within the traditional scenario of state responsibility. Primarily based on the notions of equity and justice and premised in particular upon the principle of intra-generational equity, CBDR, as a structuring principle of the international legal order, hinges upon responsibility in its moral dimension. Its application involves the elaboration of differentiated legal standards and commitments according to both responsibilities and capabilities of States. This chapter argues that because it is premised on the notions of equity and justice, the principle of CBDR necessarily calls for a broadening of the understanding of responsibility in international law, yet, it is suggested that, beyond the moral dimension of responsibility that is referred to, CBDR may still impinge upon the assessment of international responsibility in its purely legal dimension and constitute a standard against which a State’s liability will be evaluated.

Chapter 1 is devoted to a brief description of the major milestones of contemporary and Jewish/talmudic torts. This description serves as an initial presentation of the place of torts in the private arena of law vis-à-vis other fields. We start with a presentation of Jewish law of torts in general and in Maimonides’ writings. There were attempts to base tort liability in the talmudic legal tradition solely on a fault-based liability theory of peshiah (negligence), but these attempts encountered difficulties. We further present the goals of torts according to contemporary tort theories. We introduce monistic vs. pluralistic approaches, those approaches that focus only on one goal (such as optimal deterrence, distributive justice, and corrective justice) as opposed to mixed-pluralistic approaches that integrate two or more goals. Next, we move on to deal with the standard of care and present the full range of tort liability regimes, starting from strict liability and ending in fault-based liability. We also present the book’s method. The interdisciplinary character of the book requires the use of various methods, such as those of comparative law, legal history, law and religion, Judaic studies, legal theory, and economic analysis of law.

Chapter 3 introduces the foundations of the Maimonidean theory: the scope of tort law, its connection to criminal law, the classification of the different categories of tort law, and the various objectives underlying each of these categories. We argue that understanding Maimonides’s tort theory and providing a complete view of his theory requires three things: An awareness that Maimonides’ theory incorporates various goals and considerations that operate in concert; the understanding that Maimonides introduced different goals for different categories of damage; and a focus both on what Maimonides wrote in his Code and in the Guide and in his other works such as Commentary to the Mishnah and Responsa. In each category of damage one goal (or more) is (or are) more dominant than the others. A fundamental division into different types of torts emerges from the classification of the Book of Torts in the Code: The basic distinction between damages that are caused by a person’s property and damages that are caused by the person himself; the distinction between a person who causes physical injury to another and a person who damages the property of another; and the distinction between regular damage to nuisance and damages to neighbors.

We address the deontological, philosophical, pedagogical and religious foundations of Maimonides’ tort theory. Maimonides regards removing the wrong as an important aim of tort law, alongside other aims, which are directed at the meta-aim of the “welfare of the body.” We looked at the similarities and the differences between this aim and the theories of prominent modern corrective justice theories, such as those presented by Weinrib. Maimonides emphasizes educational, punitive, religious (prohibition against causing damage) and social aspects that shape this aim of “removing the wrong” in particular, and tort law in general. Therefore, the application of tort law and the conception of corrective justice is wider according to Maimonides’ approach than according to narrow conceptions of corrective justice that place the emphasis on the correlative framework of the damager/victim. Tort law, according to Maimonides, is designed not only to restore the status quo ante, but to repair the qualities of the damager, to shape him as a person who contributes to a society which dutifully observes the religious precepts and is careful not to cause damage to the property and to the body of another. Moreover, Maimonides incorporates distributive considerations into his theory, particularly on the subject of compensation.

In Chapter 2 we will present the difficulties facing those who seek to understand Maimonides’ tort theory as it appears in the Code alone, and according to the common interpretation (the “yeshivah reading”). Several contemporary scholars, as well as rabbis from the Lithuanian yeshivot, identified a different element as an alternative to the element of peshiah, i.e., the element of ownership, and some say ownership and strict liability, by virtue of which liability is imposed for damage caused by a person’s property. We will examine this approach critically and conclude that it does not accurately reflect Maimonides’ position, for it raises serious difficulties, both conceptual-principled and exegetical. We will point to a trend of new explanations of the Jewish sources through the speculum of the common tort theories in the twentieth century in the world of Jewish law. Chapter 2 will leave us with many open questions, which will be answered in the subsequent chapters. The book contains three main parts: (a) Questions; (b) Answers; and (c) Dialogue. Chapter 2 presents the questions to be dealt with in the book. Chapters 3–6 supply answers, and Chapters 7–8 offer a dialogue between Maimonides and various contemporary tort theories.