Tort Theory

Ken Cooper-Stephenson, Elaine Gibson   (Eds.)

Captus University Publications, ISBN 978-0-921801-87-0 (1993)
440 pages, 590 g, 6 X 9, $32.50 (US$26.00)

This is a book of new and original articles on the theoretical underpinnings of the law of tort and the civil law of delicts. A wide range of jurisprudential perspectives are addressed, including natural law theory, rights, economic analysis, feminist analysis, minority cultural viewpoints, Marxist analysis, and critical legal studies. The contributors are scholars from across Canada, including leading international tort theorists. The book is useful for the enhancement of first year study as well as for upper-year seminars. An introduction to each chapter describes central tenets of the field of jurisprudence in which the essays are located.

Table of Contents   top


1. Formalism, Morality and Corrective Justice

  • Introduction
  • Formalism and Its Canadian Critics (Ernest J. Weinrib)
  • Loss, Agency, and Responsibility for Outcomes: Three Conceptions of Corrective Justice (Stephen R. Perry)
  • Corrective Justice, Substantive Equality and Tort Law (Ken Cooper-Stephenson)

2. Styles of Tort Law Reasoning

  • Introduction
  • Tort Law Reasoning and the Achievement of the Good (Bruce Chapman)
  • Action Theory and Legal Reasoning (J.C. Smith)

3. Economic Analysis, Human Rights and Multiculturalism

  • Introduction
  • Economic Analysis, Substantive Equality and Tort Law (Ken Cooper-Stephenson)
  • The Culture of the Common Law in the 21st Century: Tort Law's Response to the Needs of a Pluralist Society (Lucie Léger)

4. Feminist Analysis of Tort

  • Introduction
  • The Gendered Wage Dilemma in Personal Injury Damages (Elaine Gibson)
  • Measuring Pain: Quantifying Damages in Civil Suits for Sexual Assault (Kate Sutherland)

5. Critical Legal Studies and Post-Modernism Introduction Taking Torts Progressively (Ted Decoste)

  • Blurred Visions: The Politics of Civil Obligations (Allan Hutchinson and Robert Maisey)

6. The Civil Law, Strict Liability and Quasi-Tort Introduction Louis and Mechanical Beast or Josserand's Contribution to Objective Liability in France (Daniel Jutras)

  • Towards a Quasi-Tort in the Common Law (Dr. Lakshman Marasinghe)

7. The Inadequacy of Tort Law

  • Introduction
  • Tort Law and the Crown: Administrative Compensation and the Modern State (David Cohen)
  • If This Is Torts, Negligence Must Be Dead (Bruce Feldthusen)


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About the Author   top

Ken Cooper-Stephenson is Professor of Law at the University of Saskatchewan. He was previously a founding member of the Department of Law, University of Leicester (1966-71) and joined the faculty of law at the University of Saskatchewan in 1971. His publications include: Personal Injury Damages in Canada (Toronto: Carswell, 1981, co-author); Charter Damages Claims (Calgary: Carswell, 1990); "Damages for Loss of Working Capacity for Women"(1978-79) 43 Sask. L. Rev. 7: and "Principle and Pragmatism in the Law of Remedies", in J. Berryman, Remedies: Issues and Perspectives (1991) at 1.

Elaine Gibson is Assistant Professor at Dalhousie University. She was previously Coordinator of the Academic Support Program, University of Saskatchewan, and was Research Director for the Western Judicial Education Centre Program on Racial, Cultural and Ethnic Equity. Her LL.M. Thesis topic (University of Toronto, 1992) was "Injustice to Disabled Women: An Exploration of Law and Personal Injury". Her publications include "Identifying Gender Biases in Personal Injury Compensation" , in J. Brockman & D. Chumm (eds.), Investigating Gender Bias: Socio-Legal Perspectives (HBJ-Holt Canada).