Abstract

Traditional approaches to philosophical theories of tort law have systematically undermined the individual worth and security interests of women. However, torts also provide a particularly powerful avenue for reform, in that they embody the public power of private law and offer individuals the opportunity to seek recourse and accountability for wrongs. In this paper, I offer a framework for such reformist approaches to tort philosophy, predominantly inspired by Jean Hampton’s “Feminist Contractarianism,” which requires that women be recognized as individuals with intrinsic worth who are deserving of respect. To accomplish this, I first note the particular relevance of social contract theory to tort philosophy, in the sense that both fields aim to establish and uphold fair terms of just and reasonable interaction among individuals. I then engage with the various deficiencies, both in classical social contract theory and in instrumentalist and non-instrumentalist theories of tort law, to adequately recognize women as individuals and to protect their corresponding security interests. I utilize scholarship by Martha Chamallas & Jennifer Wriggins to examine the relevance of these deficiencies in torts regarding domestic violence and sexual harassment cases, and assert that although non-instrumentalist theories provide the best framework for affirming individual worth, they have still historically failed to do so in the case of harms against women. Finally, I provide a framework for reform, based in respect for individual worth, dignity, and self-mastery consistent with the aims of non-instrumentalist approaches, that explicitly upholds protections for women – potentially with broader implications for other marginalized groups.