The real and general problem faced by tort law consists in the setting of technically and socially acceptable boundaries to the shifting of losses incurred by the victim onto another party. Whenever this shifting is neither governed by property law nor regulated by a contract between these persons, it is up to tort law to provide the solution. Consequently - and in spite of any positivistic approach one may take -, the question of whether or not awarding compensation to the victim falls upon the interpreter charged with making (or inspiring) the choice, that is, the judge (and the scholar).
All of this is possibly true of many fields of law. But within private law, and tort law in particular, it does seem to be the appropriate way to appraise what the making of law entails. The point, indeed, is that tort law constantly reveals its interpretative fate, its interpretative mode of existence.
