By Gerald J. Postema
Whilst injuries take place and other people endure accidents, who should endure the loss? Tort legislation bargains a posh algorithm to respond to this question, yet prior to now philosophers have provided little in terms of research of those principles. In 8 essays commissioned for this quantity, major felony theorists learn the philosophical foundations of tort legislations. This assortment should be of curiosity to execs and complex scholars operating in philosophy of legislation, social conception, political concept, and legislations, in addition to an individual looking a greater knowing of tort legislation.
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We act reasonably when we show due regard for the interests of others – when we pursue our own aims and aspirations on terms that provide both ourselves and others fair opportunity to pursue our respective A Social Contract Conception of the Tort Law of Accidents 25 aims and aspirations. The canons of rationality govern the choices of individuals and associations with shared final ends; the canons of reasonableness govern the choices we make as members of a community of equal persons with diverse and incommensurable ends.
The damages paid under strict liability are, then, not redress for wrongful infringement of another’s security, but a condition for the legitimate conduct of activities whose reasonable risks are not mutually beneficial in the strong sense that reasonable reciprocal risks are. Fletcher’s account thus captures the fact that negligence is a matter of fault and strict liability a matter of conditional fault, and explains why this should be so. The connection between Fletcher’s account and Kantian social contract theory should be evident.
B. Fairness as Reciprocity of Harm Fletcher’s second mistake is to place too much weight on reciprocity of risk, and it, too, leads him underrate the attractiveness of strict liability. The claim is that ex post compensation is unnecessary when reasonable risks are reciprocal. The presence of in-kind compensation eliminates the need for explicit monetary compensation by tort liability. When risks are reciprocal, those who are exposed to risk are compensated for bearing that exposure by their right to impose similar risks in return.