Rights, Interests, and Tort Law as an Instrument: A Commentary on Gregory C Keating’s ‘Reasonableness and Risk’

Abstract 20 Gregory C Keating’s Reasonableness and Risk is an important and insightful contribution to tort theory. The account Keating offers is a distinctive view that denies some of the central tenets of the economic analysis of tort law. At the same time, however, Keating 21 rejects the formalism of Kantian theorists like Weinrib and Ripstein. This commentary focuses on what separates Keating from the Kantian formalism of Weinrib and Ripstein – namely, that Keating is an instrumentalist about legal institutions. Keating’s instrumentalism makes his theory more plausible, to my mind, than the interpretation of tort law in terms of corrective justice, Kantian right, or mutual independence. But it also makes the central features of tort law, and of the common law more broadly, subject to contingency: once we adopt an instrumentalist perspective, it is always an open factual question whether the rules, doctrines, and institutions we have are justified.