Justifications and Excuses in the Economic Analysis of Tort Law

Abstract: In the economic analysis of tort law, scant attention is paid to justifications and excuses. An injurer invoking a justification argues that he did not act wrongfully. Excuses imply that the injurer acted wrongfully, but that his act cannot be imputed to him. If torts are described in general terms, on an abstract level, the possible role of justifications and excuses is larger than if the tort is subjectively defined. After all, the specific circumstances of the case that could lead to the conclusion that the injurer should not be liable are already incorporated in a subjectively defined tort, so that there is no separate function for justifications and excuses anymore. In this paper I argue that the use of general, abstract norms is preferable to applying subjective concrete norms. This generalization saves on administrative costs, it might lead to a better allocation of resources and it can provide better care and activity incentives. In circumstances where the objective norm would lead to undesirable outcomes, due to the specific circumstances of the case, justifications can serve as a correction. I analyze force majeure, necessity, necessary self-defense, legal duty or legal authority, authorized legal order, permission of the victim, assumption of risk and acting in the general interest. I argue that most, but not all, justifications make economic sense. In situations where the general norm provides correct incentives but where the specific injurer at hand would not change his behaviour as result of specific circumstances, excuses might avoid liability and hence save on administrative costs. I analyze mental or physical disability or illness, excusable error regarding the law or the facts, self-defense with excessive force and unauthorized official order. I conclude that most of the analyzed excuses are problematic from an economic point of view.

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