When accidents occur and people suffer injuries, who ought to bear the loss? Tort law offers a complex set of rules to answer this question, but up to now philosophers have offered little by way of analysis of these rules. In eight essays commissioned for this volume, leading legal theorists examine the philosophical foundations of tort law. Amongst the questions they address are the following: how are the notions at the core of tort practice (such as responsibility, fault, negligence, due care, and duty to repair) to be understood? Is an explanation based on a conception of justice feasible? How are concerns of distributive and corrective justice related? What amounts to an adequate explanation of tort law? This collection will be of interest to professionals and advanced students working in philosophy of law, social theory, political theory, and law, as well as anyone seeking a better understanding of tort law.
The debate between those who take the law's self-presentation as fundamental and those who adopt epiphenomenalism is far from being exhausted. Certainly, it will not do to criticize lawyer economists from the point of view of the law's self-presentation. And the prominence of the economic analysis of tort law nowadays only promises that the debate is not going to wither away anytime soon. Moreover, and more importantly, it would be a mistake to suppose that this debate is reducible to a disagreement between non-consequential and consequential approaches to tort law (or between non-reductive and reductive approaches to tort law). Epiphenomenalism is a meta-ethical commitment that can be adopted, to some extent, by non-consequential approaches, too. Furthermore, some measure of healthy skepticism concerning the law's self-presentation may sometimes be necessary to unearth the law's distorted or imprecise self-presentation. It is, therefore, surprising to see that a meta-ethical divide that pervades contemporary tort theory goes virtually unaddressed in a volume dedicated to the philosophical foundations of tort law.
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