Policy and Relationality in Tort Law: Contractualist Foundations

Abstract This article examines the relationship between relationality and policy in tort law from an evolutionary perspective. While, as part of the regulatory system, tort law must evolve in response to structural and allocative policy concerns, its ability to do so is limited by the relational normative structure through which it operates and claims moral authority. This tension is often obscured in mainstream tort theory. Drawing on contractualist philosophy—which traces the implications of mutual recognition and respect across structural, allocative, and relational normative contexts—the article develops a principled reasoning framework that avoids rigid hierarchies and ad hoc balancing: negative policy reasons not to adopt tort norms take precedence in choices of regulatory regimes, while positive policy reasons must be diluted and integrated with relational reasons to shape the content of tort norms. This normative framework illuminates tort law’s ability to respond to complex normative challenges while retaining its integrity and unique value as a regulatory tool.