Can Tort Law Be Moral?
Ratio Juris, Vol. 23, No. 2, pp. 205-28, 2010
Posted: 11 Apr 2010
Date Written: April 7, 2010
According to the established orthodoxy, the law of private wrongs - especially, the common law tort - fails to map onto our moral universe. Four objections in particular have caught the imagination of skeptics about the moral foundations of tort law: They Purport to cast doubt over the moral appeal of the duty of care element; they target the seemingly inegalitarian objective standard of care; they object to the morally arbitrary elements of factual causation and harm; and they complain about the unnecessary extension of liability under the guise of the proximate cause element. Analyzing these four prevailing arguments against the a-moral (and, in regard to some, anti-moral) character of tort law, I shall seek to show that the normative structure of tort law can, nonetheless, be reconstructed so as to reflect, to an important extent, our considered judgments about basic moral principles.
Keywords: Moral foundations of Tort Law, wrongs, equality, moral luck, responsibility for action
JEL Classification: K13
Suggested Citation: Suggested Citation