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The perceived threat of punitive elements in tort law to the long-standing distinction between private and public law is so powerful that tort theorists have generally responded by depicting punishment as an anomaly. They have corseted punishment within tort law’s rectificatory framework, equated punishment with deterrence, and squeezed the victim’s standing to demand punishment into a legal power for private redress. This chapter takes a close look at these guarded reactions from tort theorists to the question of punishment and how they explain not only the scarcity of theoretical reflection on the place of retribution in tort law but, additionally, the unsuitability of those theoretical reconstructions for a productive delineation and justification for the punitive, compensatory, and deterrent dimensions of the law of torts. The chapter ultimately argues that this gap in tort theory should be addressed by seeking a place for punishment in tort law that is neither constrained by the traditional treatment of punishment as an “anomaly,” as “compensation,” nor as a corollary regulatory mechanism whose exclusive aim is “deterrence.”
Legal scholars often prescind to moral philosophy to try to solve legal puzzles or paradoxes and to shape the positive law by reference to the seemingly pure and uncluttered lessons derived from within first-order moral theory. This chapter aims to do something quite close to the opposite. By looking at the structure of negligence law and certain concepts within it and by exhibiting their principled bases, it generates possible solutions to some of the problems about negligence that have troubled moral philosophers. These include: whether conduct that would ordinarily be called “negligent” can qualify as a breach of moral duty even if it was solely the product of inadvertence; whether it matters to the blameworthiness of a negligent actor that her conduct caused no harm; and whether a person whose negligent conduct is purely a product of inadvertence can properly be blamed or held responsible for injuring another. In the domain of negligence law, which contains “negligence,” “duty,” and “legal responsibility” in the form of legal liability, the answer to all three analogous questions is emphatically “yes,” and tort law explains why. Moving back to moral questions, we see our way to defensible answers to those questions and we also see why the questions present themselves as so difficult.
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