Against Expressivism in Tort Law

The Private Law Postgraduate Research Students Discussion Group is delighted to host Kerry Sun (DPhil in Law Candidate, Merton College, Oxford).

Abstract
In recent years, there has been a resurgence of interest in tort law’s expressive dimension. Embracing expressivist theories of law, and in the wake of the Supreme Court of Canada’s judgment in Ahluwalia v Ahluwalia, 2026 SCC 16, commentators have argued that the judicial creation of new torts is justified on the ground of communicating, symbolically vindicating, and/or expressing public values. This paper defends the orthodox view that the expression of public condemnation or social disapproval is not an aim of the Anglo-Commonwealth law of torts, such that it does not suffice on its own to motivate the judicial creation of new causes of action or other doctrinal developments. It argues that the extant doctrine in tort law does not principally embrace the expression of public values as a basis of common law development. From a normative perspective, it contends that expressivism is inapt in the context of private wrongs, which do not characteristically manifest a disrespectful attitude toward public values. In employing tort law to express public values, these approaches undermine the distinctive public value of tort law itself, namely, to instantiate a practice of relational accountability between equal persons.

The event will be held at St John's College (21 St Giles Seminar Room). Provision is made for both in-person and online attendance. Those who wish to attend the event online can write to amelie.berz@law.ox.ac.uk to receive the Teams link. A sandwich lunch and refreshments will be served for members attending the event in person.