In this essay I will endeavour to outline what the intended purpose of tort law is in the Irish legal system and how it has come about over centuries. I will include a brief outline of the meaning of tort law and the different kinds of Tort, I will also include a brief summary of the sister laws of tort, that being criminal and contract law.
The word tort is the equivalent of the French word that means ‘wrong’. This word ‘tort’ was derived from the Latin word ‘tortum’, translated this means twisted, crooked or wrong. The term ‘tort’ was first introduced into English law by the Normans. It is widely understood to mean the law of civil liability for wrongfully inflicted injury. This is the literal translation of the word tort but it has many different meanings and purposes in the law and there are many different kinds of torts or ‘wrongs’.
Over the years tort scholars have been divided over what would seem a simple question, what is tort law intended for? The leading answer to this question seems to be that tort law promotes efficient behaviour in society by giving people incentives to take account of costs they impose on others. In other words, tort law can be seen as a means in which an individual who has wronged another has a duty to repair or redress the losses caused by their actions.
Another answer that has been put forward to the question of what tort law is intended for is that tort law aims for corrective justice and enforcing moral responsibility on wrongdoers. This is one of the longest standing theories of the purpose of tort law in that tort law has a role in bringing wrongdoers to compensate those they have injured or who have suffered by their actions.
Over the years these two theories of the intended purpose of tort law have set the terms of debate. Recently however a third contender has emerged, that being that tort law empowers individuals to seek remedies from those who have wronged them.
This new theory that has come about in recent years can be viewed in a more economic sense. This modern view of tort law sets out that the function of tort law is to control future conduct of potential wrongdoers and aims to reduce the number of accidents by imposing financial costs on any wrongful conduct.
The debate of what the purpose of tort law is has continued over many centuries. However, it is possible that this question does not merely have one answer. Tort is an ancient institution and I intend to show in this essay that it is capable of serving many purposes and has been repurposed many times over the years.
Historical development of tort law
Originally, tort in the common law had a system of compensating for wrongs, there was no clear distinction between crimes and other wrongs. Tort law first made its appearance in Anglo-Saxon law. Under this law, wrongs committed required a payment of bōt to the wronged person in the clan, the word bōt refers to ‘remedy’. A wīte was also required to be paid to the king, the word wīte...