Tort Law and Social Morality

Develops a theory of tort law integrating deontic and consequential approaches by applying justificational analysis to identify its factors, circumstances, and values.

Peter M. Gerhart (Author)

9780521768962, Cambridge University Press

Hardback, published 19 April 2010

288 pages, 3 b/w illus.
23.4 x 16 x 2 cm, 0.57 kg

This book develops a theory of tort law that integrates deontic and consequential approaches by applying justificational analysis to identify the factors, circumstances, and values that shape tort law. Drawing on Kantian and Rawlsian philosophy, and on the insights of game theorist Ken Binmore, this book refocuses tort law on a single theory of responsibility that explains and justifies the broad range of tort doctrine and concepts. Under this theory, tort law asks people to appropriately incorporate the well-being of others into the decisions they make, explains when that duty applies, and explains the scope and limits of that duty. The theory also incorporates a theory of the evolutionary development of social values that people use, and ought to use, in meeting that duty and explains how decision-making from behind the veil of ignorance allows us to evaluate the is in light of the ought.

Part I. Other-Regarding Behavior: 1. Law as a social institution
2. Social cohesion and social values: the reasonable person
Part II. The Normative Justification: 3. An integrated normative analysis
4. Kantian duty
5. Rawlsian consequentialism: Rawls and social cohesion
Part III. The Theory Applied: 6. Social cohesion and autonomy: the justificational boundary of duty
7. Social cohesion and moral agency: the justification for proximate cause
8. Social cohesion and strict liability
9. Using another's property
10. Product liability: social cohesion and agency relationships
11. Customer-centered enterprise liability
12. Social cohesion and knowledge: the intentional torts
Part IV. Lessons and Extrapolations: 13. The whole in one.

Subject Areas: Torts / Delicts [LNV], Jurisprudence & philosophy of law [LAB]