Emmanuel Levinas and the Philosophy of Negligence

Tort Law Review, Vol. 14, pp. 1-18, 2006

45 Pages Posted: 2 Dec 2009

See all articles by Desmond Manderson

Desmond Manderson

ANU College of Law; ANU College of Arts and Social Sciences; McGill University - Faculty of Law

Date Written: November 29, 2006

Abstract

Over the past hundred years, the law of negligence has transformed itself, and in the process transformed our sense of the obligations we all owe to everybody around us – local governments for the services they provide, banks and professionals for the advice they give, drivers on the road, doctors in the surgery, homeowners for their guests or visitors, and even for the trespassers who might pay them a call. Yet what is now compendiously described as ‘the duty of care’ is in some ways an unusual obligation. It is not the outcome of an agreement founded on self-interest, like a contract. It is not a duty owed to the community as a whole and acted on by the State, like criminal law. It describes a personal responsibility we owe to others which has been placed upon us without our consent. It is a kind of debt that each of us owes to others although we never consciously accrued it. Thus it raises in a distinctly personal way one of the oldest questions of law itself: ‘Am I my brother’s keeper?’ What does it mean to be responsible? This is not a question that is easier to answer for us than for Cain. In this article I argue that the idea of responsibility articulated in the law of negligence comes from what might be termed our literal response-ability: it implies a duty to respond to others stemming not from our abstract sameness to others, but rather from our particular difference from them. Responsibility is not a quid pro quo — it is asymmetrical, a duty to listen to the breath of others just in so far as their interests diverge from our own. The duty of care emerges not because we have a will (which the law of contract respects) or a body (which the criminal law protects) but because we have a soul.

Suggested Citation

Manderson, Desmond, Emmanuel Levinas and the Philosophy of Negligence (November 29, 2006). Tort Law Review, Vol. 14, pp. 1-18, 2006, Available at SSRN: https://ssrn.com/abstract=1515342

Desmond Manderson (Contact Author)

ANU College of Law; ANU College of Arts and Social Sciences ( email )

Canberra, Australian Capital Territory 0200
Australia

HOME PAGE: http://https://researchers.anu.edu.au/researchers/manderson-dra

McGill University - Faculty of Law ( email )

Canada

HOME PAGE: http://https://researchers.anu.edu.au/researchers/manderson-dra

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