Taking tort law’s formal surface at moral face value distorts the nature of tort law’s underlying moral commitments, thus inhibiting the philosophical project of delineating their contours and assessing whether they can withstand reflective scrutiny. If torts are not relational moral wrongs, and relational wrongdoing is not required to hold a defendant liable to a plaintiff in tort, then the moral logic of central aspects of tort doctrine (such as the proximate cause element in negligence) cannot be understood along the lines that defenders of the Palsgraf perspective and other philosophically oriented tort theorists often suppose. Judges, of course, are not philosophers; their task is to faithfully elaborate legal principles in light of the received doctrine and its underlying normative commitments, not to overturn those commitments in the name of philosophical reflection. But the loss of analytical clarity incurred by the Palsgraf perspective distorts the judicial function as well. For there are cases, we will see, in which tort law’s underlying moral commitments imply that a plaintiff should recover more often than the relational formal structure of its causes of action allows. That is precisely why the law has been compelled to resort to doctrinal fictions such as transferred intent. Once we see how the law’s formal structure fails to fully implement its substantive commitments, we can formulate and entertain new possibilities for giving those commitments doctrinal and institutional expression. So, for example, we might devise new remedial structures, such as new derivative causes of action, that “piggyback” on the relational structure of existing torts in order to achieve non-relational remedial ends.59 To identify the divergence between the law’s formal structure and its moral substance is to liberate our imagination about the space of doctrinal possibilities — to appreciate that we can reconfigure the existing forms in service of the moral principles they are supposed to serve.
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Neil, bottom right, with fellow Whitesnake members at Shepperton Studios in 1978.