What is a tort? (II)
Definition and scope
What's a tort?
Literally, the word comes from the Old French and meant, in 17th century English, an injustice or wrong, derived from a a Latin word meaning twisted -- "torque" is from the same root. It's actually unrelated to the similar sounding word that means a flour-less chocolate cake, which is related instead to tart and tortellini.
In legal English, though, it refers to a civil wrong. Torts is the law of personal injury lawyers, slips and falls, products liability, medical malpractice, libel and slander: any injury that one person does to another (except for violating a contract) where the injured person may sue in court. A tort is a non-contractual injury that is actionable.
That probably sounds vague. That is because the category is vague. Tort tends to expand and contract along with changes in the judiciary's views of what sorts of injuries should be the basis of lawsuits or what sorts of actions are wrongful. When, as in the late nineteenth century, courts viewed injuries as an inevitable consequence of progress, torts shrank. When, in the middle of the twentieth century, they came to view most accidents as the result of poor planning or insufficent care taken to avoid them, torts grew. Later, the tide shifted yet again, as tort reformers argued that tort actions should be seen as an illegitimate tax extorted by malingering plaintiffs from productive enterprises. Simultaneously, the boundary between tort and contract has shifted: in periods where courts viewed bargaining as inherently fair or preferable to governmental intervention, they tend to diminish torts, letting the chips fall where they may. When bargaining seems, instead, to allow the powerful to seize even more, tort, as a social restraint on the power of any individual, tort expands and tort concepts edge into contract. Today, perhaps, we are on the edge of yet another sea change.
Torts not contract
In modern American law, the first key to understanding tort is to understand what it is not: contract, criminal or property law. Contract law is the law of voluntary agreements in which the parties agree to assume a particular set of norms that they have more or less carefully defined or at least identified. Tort, in contrast, involves norms that are imposed on parties simply because they are civilized people living in a civilized world, or, more often, entities composed of or representing such people. Contract norms are adopted by the contracting parties; tort norms are adopted by society as a whole. Contract descends from the law merchant and, surprisingly, the Exchequer of the Jews, and retains some aspects of its transnational, private, origins even as it was adopted by the state. Tort originated along with criminal law as an expression of state power to enforce social norms, and retains some aspects of that public origin even as it has privatized.
One should not overstate the differences, of course. Most of contract law, like tort law, involves socially defined norms that the contracting parties can be said to have "agreed" to only in the loosest sense. The implied covenant of fair dealing and good faith, implied warranties of merchantibility and quasi-contract, and, indeed, background intepretive rules like the principle of employment-at-will are all tort-like socially mandated norms that courts impose on contracts regardless of the expressed will of the parties. And in tort, as in contract, norms often vary with the context and often parties can be said to have voluntarily placed themselves within a normative system in the same sense as in contract. Medical malpractice (and other professional malpractice) are treated as tort, but the tort requires that the parties have voluntarily agreed to enter into the professional/client relationship. It could, instead, have been conceptualized as a breach of an implied term in the professional service contract. Nonetheless, the basic normative weight remains somewhat different: contract law is deeply influenced by notions of promise; tort law, instead, by standards of decent behavior. Contract centrally asks what the particular parties to the contract wanted; tort asks how society expects them to behave.
The contract / tort distinction is quite important even beyond the different habits of mind lawyers bring to the two areas. Different remedies are available in contract and tort. In both cases, usually a plaintiff who wins will receive an award of money ("damages") designed to put them into the same situation they would have been without the violation. But tort is consistently more generous to plaintiffs. Most importantly, courts routinely award damages for collateral injuries in tort cases where they would not in contract: if a defective camera chip causes the plaintiff to miss the shot that would have launched his career as a world-famous photographer, in contract the plaintiff will receive the value of a replacement chip. In tort, in contrast, if the defendant broke the chip, standard damages would include not just the chip but the entire value of the future career. Moreover, in exceptional cases, courts may grant punitive damages (i.e., awards intended to deter the defendant rather than make the plaintiff whole) or injunctive relief (i.e., a court order directing the defendant to do or not do something or face imprisonment) in tort cases but they will almost never do so in contract case.
Torts not crimes
Criminal law differs from tort in three fundamental ways. First, criminal norms are absolute prohibitions--thou shalt nots. In contrast, tort norms often (although not always) are more conditional: if you do x, you must compensate the people you injure in doing so. While criminal law identifies anti-social activities that it seeks to eliminate, tort rarely bans activities and much of the time does not even condemn them. Tort norms often can be understood as simply putting a price on an activity: you may act in this tortious way, so long as you clean up whatever mess you make by doing so. With some notable exceptions, tort awards are designed to compensate for the damage done without the criminal law goal of preventing, detering or expressing moral disapprobation of the sanctioned behavior.
Second, tort actions are generally brought by the injured party and the normal tort remedy is to require the defendant tort-feasor to pay the tort victim enough money to cover his damages and make him whole. Criminal actions, in contrast, are brought only by the state itself (in the US; many other countries, including some common law countries, also have provisions for private citizens to begin criminal actions). Criminal prosecutions seek to punish and deter the criminal, to induce him not to commit the forbidden action again and to punish for past infractions. Unlike tort law,criminal law does not necessarily seek to compensate the victim.
Finally, the liberal political theory which underpins our governmental system historically viewed criminal law as the paradigmatic instance of state power over individuals and, as a result, surrounded it with limitations and protections. Tort, despite its historical origins as a close relative of criminal law, has not aroused this degree of suspicion. While criminal law is seen as a manifestation of the awesome majesty of the state bearing down upon an individual accused, in tort the judge is more often seen as a neutral arbitrator mediating between two contestants, with no need for presumptions of innocence, high burdens of proof, large juries, guaranteed access to counsel or appeals, or similar procedural safeguards. In criminal cases, it is commonly said that it is better to let several guilty men go free than to convict an innocent one; consequently, the system is supposed to be stacked against findings of guilt. In tort, however, the more common view is that there is no reason to stack the deck one way or the other: it is no worse to injure an innocent defendant than to leave an innocent plaintiff's injury unremedied.
Here too the contrast should not be overstated. The victim rights movement in criminal law, for example, has imported tort understandings into criminal law in an effort to reduce defendant protections. Conversely, the anti-tort liability movement of the late 19th century and the modern "tort reform" movements both sought to move tort closer to criminal law, viewing tort liability as a punishment imposed by the state on individuals for acting badly, and thus an expression of the power of the state that must be restrained on classic liberal grounds.
Torts and Property
There is less of a distinction between torts and property law. Perhaps the clearest distinction is that property law determines who owns property and the rights that are associated with that ownership. If the parties each assert ownership, property law applies. If plaintiff's claim is, instead, that the defendant has used, damaged, taken or otherwise invaded plaintiff's property, the question is for torts. Indeed, even personal injury torts often seem to work as if they were conceptualized them as invasions of the individual's property right in his or her own body. Obviously, these distinctions are not crystal clear. Unlike the distinction with criminal and contract law, little rides on them (other than which course the issues appear in).