Introduction

Part One developed the pattern conception of social norms. Part Two will apply this framework in the context of tort law. This application will test the value of the pattern conception; the more it illuminates tort law, the more valuable it is proven to be. As discussed in the book's Introduction, tort law is at the core of a liberal theory of social order. Liberalism begins with a brute conception of the intrinsic moral worth of the individual. From this starting point, the theory of human rights and personal autonomy follow. Free people may do as they please, so long as others are not injured in the process. When others are injured, however, tort lawmay be implicated. As Part One indicated, free people characteristically choose to conform to social norms. When they do, and when others are injured in the process, meaningful solutions must take place at the intersection of norms and torts.

The present chapter begins the examination of the role of social norms in tort law. The focus in this chapter is on the historical development of the concept of legally valid custom, or what is sometimes referred to as the rule of custom.