Kenneth W. Simons
University of California, Irvine School of Law; Boston University - School of Law
Social Philosophy and Policy, Vol. 16, No. 2, Summer 1999
This essay investigates moral and legal responsibility for negligence. Negligence has many meanings; the essay considers the creation of an unjustified and low probability risk of causing harm. The common-sense moral precept that one should not be negligent reflects neither a coldly calculating economic or utilitarian conception, nor an absolutist deontological conception that ignores all costs or disadvantages of taking precautions against risk. Rather, ordinary moral judgments, informed by plausible nonutilitarian and deontological moral principles, can make sense of the duty not to act negligently. And a pluralistic balancing approach can recognize the breadth of values expressed in these judgments and principles. In law, norms of negligence often express private moral norms, but they also have distinctive institutional features. In the realm of Anglo-American tort doctrine, principles of fault, rather than of corrective justice, offer the better interpretation and more convincing deontological justification.
JEL Classification: K13
Date posted: November 3, 1999
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