The union of contemporary philosophy and tort law has never been better. Perhaps the most dynamic current in contemporary tort theory concerns the increasingly sophisticated inquires into the doctrinal elements of the law of torts, with the tort of negligence in particular garnering the most attention from theorists. In this article, I examine philosophically rich issues revolving around each of the elements constituting the tort of negligence: compensable injury, duty, breach, actual cause, and proximate cause.

When we compare contemporary moral philosophy with the well-known moral systems of earlier centuries, we should be struck by the fact that a certain assumption about human well being that is now widely taken for granted was universally rejected in the past. The contemporary moral climate predisposes us to be pluralistic about the human good, whereas earlier systems of ethics embraced a conception of well being that we would now call narrow and restrictive. One way to convey the sort of (...) contrast I have in mind is to note that according to Plato and Aristotle, there is one kind of life, that of the philosopher, that represents the summit of human flourishing, and all other lives are worth leading to the extent that they approximate this ideal. Certain other ethical theories of the past were in a way more narrow than this, for whereas Plato and Aristotle maintained that many things are in themselves worthwhile, others argued that there is only one intrinsic good—pleasure according to the Epicureans, virtue according to the Stoics. By contrast, it is now widely assumed that all such approaches are too exclusive, that not only are there many types of intrinsic goods but there is no one specific kind of life—whether it is that of a philosopher or a poet or anyone else—that is the single human ideal. Even hedonism, a conception of the good that had a powerful influence in the modern period, has few contemporary proponents. A consensus has arisen in our time that there is no single ultimate good that provides the measure by which the worth of all other goods must be assessed. (shrink)

David McCarthy has recently suggested that our compensation and liability practices may be interpreted as reflecting a fundamental norm to hold people liable for imposing risk of harm on others. Independently, closely related ideas have been criticised by Stephen R. Perry and Arthur Ripstein as incompatible with central features of negligence law. We aim to show that these objections are unsuccessful against McCarthy’s Risk–liability theory, and that such an approach is a promising means both for understanding the moral basis of (...) liability for negligence and for reasoning about possible reforms of the institution of negligence law. (shrink)