侵权法的一阶二阶问题

Let us talk about the relation between the so-called second-order questions of the nature of tort law and the first-order legal questions of tort law.

Starting from the first-order question: a typical one is whether A's action is negligently liable or not. We can further ask, whether A's partcular action consists of a breach of a duty of care. People have different accounts of negligence. So we have some first-order legal disputes like the following: When people are disputing whether a person is negligently liable or not according to their different respective accounts of the relevant ideas, they are disputing the legal content of negligence law or tort law - what is the correct idea of negligence. Their discourses and talks consist of the practice of tort law. And these are just our ordinary legal practice of tort law.

Then we have the meta- or second order questions as something like this: what facts determine such a practice of tort law that distinguish tort law from other things? Or what kinds of facts or (facts about principles or whatever) that organise these practice in a way that makes the practice distinct. These are the metaphysical questions of tort law: what makes tort law practice as it is. Then we have the epistemological questions of tort law: how do we know these facts (of principles) of tort law - by intuitions? by observations? Then with the help of the philosophy of mind and language, we can also construct other second-order questions like: when we are making tort law legal judgements, what kind of psychological state do we have? Also, we want to know what are the meaning of our tort legal statement when we are making them.

For tort law theorists, most of them focus on the first two questions. They propose different kinds of answers to the metaphysical question - what facts determines the existence or practice of tort law? wealth maximisation or corrective justice are two candidates. Then their theories will have some implied epistemological ideas - they are somehow related to the methodological dispute of tort law theorisation. That is, We know these facts or organising principles of tort law in terms of descriptive or interpretive method.

Then, it appears if all of what I said above is correct, the analogy can be drawn on the general jurisprudence. (I know of course we can draw that analogy; The above is just a practice to make sense of this distinction by thinking whether we can apply it to tort law theorisation)