Instrumentalisation of Tort Law: Widespread yet Fundamentally Limited

Abstract

The question on the role of the law, particularly tort law, in combating legal but potentially lethal products and services is inseparable from the broader issue of the ongoing instrumentalisation of the law. Increasingly used to pursue goals other than its primary aim of compensation, tort law is no exception to the general trend of instrumentalisation of private law. This instrumentalisation is a dual phenomenon that has developed both out of top-down and bottom-up impulses. Although specific questions may arise for each of these two movements, they encounter a common limit. Tort law’s primary compensatory function fundamentally restricts instrumentalisation. Other functions, such as enforcement or prevention, which come to the fore in the battle against legal but potentially lethal products and services, are grafted onto this primary function and can only be pursued insofar as they are compatible with it. This relates to the tension created by pursuing public goals through tort law as an essentially private law instrument. Attention is needed not to overstretch tort law’s prerequisites, which are coherent with its private law embedding, which would turn tort law into a dangerous passe-partout.