Patrick Tort, An lntroduction to Darwininian Anthopology. An lnterview with Georges Guille-Escuret. - Recalling how his book La pensée hiérarchique et l’evolution had, in 1983, reoriented the field of the interpretation of Darwinism, P. Tort contrasts “social Darwinism”- which was wrongly thought to be its consequence -with the very different truth represented by the anthropology of Darwin, which opens new perspectives for reflexion on the nature/culture and nature/society relationships. For over a century, this truth was not perceived, not even by (...) Marx and Engels. The selft-eliminating process of selection which takes place within “civilized” societies, is calles by P. Tort the reversive effect of evolution. The method used in this work -the analysis of discursive complexes- should make is possible, through its later developments, to resolve, notedly in matters of classification, a certain numbers of key problems that have been raised by the traditional or estructuralist approaches to the “history of ideas”. (shrink)

In order to leave our debate open, it is important to end with a potentially crucial encounter between two domains whose representatives have not yet engaged in direct dialogue. Epistemology and anthropology, indeed, have many ideas to exchange and interactions to stimulate, particularly insofar as both of them consider the relations between a science of nature and a science of humankind.

How « the Father » became the cause of the pathologies affecting the family. When, in the 1960s, fathers lost their control over procreation and their control over women and children, some cracks started to appear in the edifice of patriarchal domination. There followed a reaction in which all the disorders today troubling the order of the family came to be traced back to this eclipse of the father figure. From this there emerged a veritable « State psychological apparatus » (...) whose aim was the sanctification of the traditional domestic functions : the father as the figure of authority, the mother as carer. Indifferent to its social and historical dimensions, Oedipus assumed the status of a, presumably universal, « symbolic order », dominated by the father and master. MT here calls into question the entire conceptual order of Lévi-Strauss and Lacan : the idea that the foundation of power and reason is naturally a masculine prerogative. Above all else, the article calls into question the interpretation put forward by Pierre Legendre, which assigns to a (patriarchal) juridical order the task of structuring the psyche. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Index to Volume Fifty-SixArticlesBernier, Bernard, National Communion: Watsuji Tetsurō's Conception of Ethics, Power, and the Japanese Imperial State, 1 : 84-105Between Principle and Situation: Contrasting Styles in the Japanese and Korean Traditions of Moral Culture, Chai-sik Chung, 2 : 253-280Buxton, Nicholas, The Crow and the Coconut: Accident, Coincidence, and Causation in the Yogavāiṣṭha, 3 : 392-408Chan, Sin Yee, The Confucian Notion of Jing (Respect), Sin Yee Chan, 2 : (...) 229-252Chong, Kim-chong, Zhuangzi and the Nature of Metaphor, 3 : 370-391Chung, Chai-sik, Between Principle and Situation: Contrasting Styles in the Japanese and Korean Traditions of Moral Culture, 2 : 253-280The Confucian Ideal of Harmony, Chenyang Li, 4 : 583-603The Confucian Notion of Jing.(Respect), Sin Yee Chan, 2 : 229-252The Conventional Status of Reflexive Awareness: What's at Stake in a Tibetan Debate? Jay L. Garfield, 2 : 201-228The Crisis of Knowledge in Islam (I): The Case of al-'āmirī, Paul L. Heck, 1 : 106-135The Crow and the Coconut: Accident, Coincidence, and Causation in the Yogavāiṣṭha, Nicholas Buxton, 3 : 392-408De Reu, Wim, Right Words Seem Wrong: Neglected Paradoxes in Early Chinese Philosophical Texts, 2 : 281-300The Desire You Are Required to Get Rid of: A Functionalist Analysis of Desire in the Bhaga-vadgītā, Christopher Framarin, 4 : 604-617Framarin, Christopher, The Desire You Are Required to Get Rid of: A Functionalist Analysis of Desire in the Bhagavadgītā, 4 : 604-617Garfield, Jay L., The Conventional Status of Reflexive Awareness: What's at Stake in a Tibetan Debate? 2 : 201-228Heck, Paul L., The Crisis of Knowledge in Islam (I): The Case of al-'ā mirī, 1 : 106-135Heidegger's Comportment toward East-West Dialogue, Lin Ma and Jaap van Brakel, 4 : 519-566Ho, Chien-hsing, Saying the Unsayable, 3 : 409-427Kantor, Hans-Rudolf, Ontological Indeterminacy and Its Soteriological Relevance: An Assessment of Mou Zongsan's (1909-1995) Interpretation of Zhiyi's (538-597) Tiantai Buddhism, 1 : 16-68Lai, Karyn, Li in the Analects: Training in Moral Competence and the Question of Flexibility, 1 : 69-83Li, Chenyang, The Confucian Ideal of Harmony, 4 : 583-603Li in the Analects: Training in Moral Competence and the Question of Flexibility, Karyn Lai, 1 : 69-83Ma, Lin, and Jaap van Brakel, Heidegger's Comportment toward East-West Dialogue, 4 : 519-566National Communion: Watsuji Tetsurō's Conception of Ethics, Power, and the Japanese Imperial State, Bernard Bernier, 1 : 84-105Ontological Indeterminacy and Its Soteriological Relevance: An Assessment of Mou Zongsan's (1909-1995) Interpretation of Zhiyi's (538- 597) Tiantai Buddhism, Hans-Rudolf Kantor, 1 : 16-68Right Words Seem Wrong: Neglected Paradoxes in Early Chinese Philosophical Texts, Wim De Reu, 2 : 281-300The Role of Time in the Structure of Chinese Logic, Jinmei Yuan, 1 : 136-152Sakya Pandita and the Status of Concepts, Jonathan Stoltz, 4 : 567-582Saying the Unsayable, Chien-hsing Ho, 3 : 409-427Schiltz, Elizabeth, Two Chariots: The Justification of the Best Life in the Katha Upanishad and Plato's Phaedrus, 3 : 451-468Spackman, John, The Tiantai Roots of Dōgen's Philosophy of Language and Thought, 3 : 428-450Stevenson, Frank W., Zhuangzi's Dao as Background Noise, 2 : 301-331Stoltz, Jonathan, Sakya Pandita and the Status of Concepts, 4 : 567-582The Tiantai Roots of Dōgen's Philosophy of Language and Thought, John Spackman, 3 : 428-450 [End Page 709]Two Chariots: The Justification of the Best Life in the Katha Upanishad and Plato's Phaedrus, Elizabeth Schiltz, 3 : 451-468van Brakel, Jaap, and Lin Ma, Heidegger's Comportment toward East-West Dialogue, 4 : 519-566Yuan, Jinmei, The Role of Time in the Structure of Chinese Logic, 1 : 136-152Zhuangzi and the Nature of Metaphor, Kim-chong Chong, 3 : 370-391Zhuangzi's Dao as Background Noise, Frank W. Stevenson, 2 : 301-331Book NotesFenner, David E. W., Introducing Aesthetics (note by James McRae), 3 : 515-516Introducing Aesthetics, by David E. W. Fenner (note by James McRae), 3 : 515-516McRae, James, a book... (shrink)

BackgroundSex and gender differences are often overlooked in research design, study implementation and scientific reporting, as well as in general science communication. This oversight limits the generalizability of research findings and their applicability to clinical practice, in particular for women but also for men. This article describes the rationale for an international set of guidelines to encourage a more systematic approach to the reporting of sex and gender in research across disciplines.MethodsA panel of 13 experts representing nine countries developed the (...) guidelines through a series of teleconferences, conference presentations and a 2-day workshop. An internet survey of 716 journal editors, scientists and other members of the international publishing community was conducted as well as a literature search on sex and gender policies in scientific publishing.ResultsThe Sex and Gender Equity in Research (SAGER) guidelines are a comprehensive procedure for reporting of sex and gender information in study design, data analyses, results and interpretation of findings.ConclusionsThe SAGER guidelines are designed primarily to guide authors in preparing their manuscripts, but they are also useful for editors, as gatekeepers of science, to integrate assessment of sex and gender into all manuscripts as an integral part of the editorial process. (shrink)

In their brilliant and thought-provoking book Recognizing Wrongs, John Goldberg and Benjamin Zipursky offer a vindicatory interpretation of the law of torts. As part of this, they offer a justification for what they call the “principle of civil recourse.” This is the principle that “a person who enjoys a certain kind of legal right, and whose right has been violated by another, is entitled to enlist the state’s aid in enforcing that right, or to make demands in response (...) to its violation, as against the person who has violated it.” To defend the principle of civil recourse, Goldberg and Zipursky appeal to three values: equality, fairness, and individual sovereignty. In this essay, we make two critical points. First, we argue that Goldberg’s and Zipursky’s defense errs by omitting a justificatory appeal to our moral rights and duties as part of the normative foundation of the tort law. Second, we argue that Goldberg’s and Zipursky’s arguments do not explain certain institutional features of the tort law, including the fact that legal duties of redress emerge only at the conclusion of court cases and the fact that lawsuits are opted int.o by tort victims who must initiate these actions themselves. To retain what is philosophically valuable in Goldberg’s and Zipursky’s impressive defense of the principle of civil recourse, we conclude with a strategic suggestion on their behalf: they should split their defense of the principle of civil recourse into two parts, with the first part justifying the existence of some institution of civil recourse or other and the second part justifying specific details that this institution should have. (shrink)

Abstract The concept of culture was originally an expression of German nationalism, which reacted to the French Enlightenment by asserting the uniqueness and incomparability of all cultures as historical creations. This understanding of cultural diversity, which prevailed in American anthropology, is widely understood to imply the moral equality of all cultures. Yet its relativism originally applied to different individuals socialized in the values of their culture, rather than to different cultures. The debate over multiculturalism, which presupposes cultural relativism, ignores this (...) distinction. The vogue of multiculturalism reflects the decline of the Left, quests for community and identity, and an actual reduction in diversity more than a genuine appreciation of different cultures. (shrink)

Dennis H. Wrong postulates sociological theory’s origins in the asking of general questions about man and society. Th e answers lose their meaning if they are elaborated without reference to the questions, as has been the case in much contemporary theory. An example is the Hobbesian question of how men become tractable to social controls. Th e two-fold answer of contemporary theory is that man „internalizes“ social norms and seeks a favorable self-image by conforming to the „expectations“ of others. Such (...) a model of man denies the very possibility of his being anything but a thoroughly socialized being and thus denies the reality of the Hobbesian question. Th e Freudian view of man, on the other hand, which sociologists have misrepresented, sees man as a social though never a fully socialized creature. Wrong claims that sociologists need to develop a more complex, dialectical conception of human nature instead of relying on an implicit conception that is tailor-made for special sociological problems. (shrink)

Abstract Several scholars have observed that in contrast to ?socialism,? ?capitalism? was not an ideology promoted by a social class or movement but an economy that emerged ?spontaneously? from particular historical conditions. Since the decline of the Soviet Union, no new version of socialism has been promulgated, although complaints about the inequalities of capitalism inevitably persist and will certainly continue. Capitalism, if not ?eternal,? remains a highly probable form of economy under conditions of economic surplus, extensive division of labor, urbanism, (...) and the absence of fully centralized state power. An inevitably wide variation in its forms will certainly endure and in no way amounts to the ?end of history,? as a few writers have suggested. (shrink)

The authors of the preceding articles1 raise legitimate questions about patient and staff rights and the unintended consequences of allowing ABC News to film inside teaching hospitals. We explain why we regard their fears as baseless and not supported by what we heard from individuals portrayed in the filming, our decade-long experience making medical documentaries, and the full un-aired context of the scenes shown in the broadcast. The authors don’t and can’t know what conversations we had, what documents we reviewed, (...) and what protections we put in place in each televised scene. Finally, we hope to correct several misleading examples cited by the authors as well as their offhand mischaracterization of our program as a “reality” show. (shrink)

This article offers arefutation of the corrective justiceinterpretation of tort law – the view that itis essentially a system of corrective justice. It introduces a distinction between primary andsecondary tort duties and claims that tort lawis best understood as the union of its primaryand secondary duties. It then advances twoindependent criticisms of the correctivejustice interpretation. The article firstargues that primary tort duties have nothingfundamentally to do with corrective justice andthat, if one understands what is meant by``primary tort duties,'' one is (...) compelledto regard this fact as a decisive objection tothe corrective justice interpretation. Second,it argues that, whatever relation thereis between secondary tort duties and correctivejustice, that relation also holds betweencorrective justice and secondary duties ofother legal branches. In sum, the concept ofcorrective justice is neither capable ofunifying tort law nor of demarcating it fromother legal branches.The article also offers a general alternativeinterpretation of tort law. Rather thanbeing essentially corrective, tort law isessentially protective. Under this picture, iftort law has a most important point, it is theprotection of legal subjects and valuablesocial interests from harm. This is theoverarching ambition that unifies primary andsecondary tort duties. It does not, however,demarcate tort law from other legal branches. (shrink)

This essay reviews John Gardner’s recent books, From Personal Life to Private Law, and Torts and Other Wrongs. Both books offer profound insights into private law’s concerns with justice and our reasons for action. The essay focuses on Gardner’s continuity thesis, and in particular on his idea that a third party may act on behalf of a wrongdoer as her delegee. Three settings are considered. First, I will discuss settings in which the state or another third party acts (...) to remedy a wrong without the wrongdoer’s consent. Second, I will review settings in which the legal remedies at issue – e.g., general damages or punitive damages – may not fit well with the idea that the state is acting on behalf of a wrongdoer. Third, I will analyze settings in which the state may be acting on behalf of right holders, yet still be concerned with the continuity thesis. Assessing each of these contexts offers further insights into the purpose of private law remedies. (shrink)

This paper is about how best to understand the notion of ‘public wrongs’ in the longstanding idea that crimes are public wrongs. By contrasting criminal law with the civil laws of torts and contracts, it argues that ‘public wrongs’ should not be understood merely as wrongs that properly concern the public, but more specifically as those which the state, as the public, ought to punish. It then briefly considers the implications that this has on criminalization.

According to the established orthodoxy, the law of private wrongs—especially common law torts—fails to map onto our moral universe. Four objections in particular have caught the imagination of skeptics about the moral foundations of tort law: They purport to cast doubt over the moral appeal of the duty of care element; they target the seemingly inegalitarian objective standard of care; they object to the morally arbitrary elements of factual causation and harm; and they complain about the unnecessary extension (...) of liability under the guise of the proximate cause element. Analyzing these four prevailing arguments concerning the a-moral (and, with regard to some interpretations, anti-moral) character of tort law, I shall seek to show that the normative structure of tort law can, nonetheless, be reconstructed so as to reflect, to an important extent, our considered judgments about basic moral principles. (shrink)

This book by one of America's preeminent legal theorists is concerned with the conflict between the goals of justice and economic efficiency in the allocation of risk, especially risk pertaining to safety. The author approaches his subject from the premise that the market is central to liberal political, moral, and legal theory. In the first part of the book, he rejects traditional "rational choice" liberalism in favor of the view that the market operates as a rational way of fostering stable (...) relationships and institutions within communities of individuals with broadly divergent conceptions of the good. However, markets are needed most where they are most difficult to create and sustain, and one way to understand contract law in liberal legal theory, according to Professor Coleman, is as an institution designed to reduce uncertainty and thereby make markets possible. Another target of this book is the prevalent view that tort law helps rectify market failures when transaction costs are too high to permit contracting. The author argues instead that tort law should be understood as a way of rectifying wrongful losses not inefficient exchanges. (shrink)

This article presents the novel view that ‘inclusion into seclusion’ and ‘public disclosure of embarrassing facts’ (‘misuse of private information’ (“MOPI”) in the UK), which both the academic commentary and US case law treat as two separate legal actions, occupy the same conceptual space. This claim has important practical ramifications. No further development of the law is required to realise an actionable intrusion tort as part of the UK’s MOPI tort. The argument is defended in doctrinal and theoretical terms, and (...) by reference to both UK and US law. It is presented in three forms: first, in negative terms, that the orthodox distinction between the two claims (informational privacy and intrusion) is unsustainable; secondly, in positive terms, that both guard against the same wrong (unwarranted privacy-invasion) and the same harm (mental distress), in a way that is distinctive from other privacy actions and legal claims based upon the autonomy value; finally, in pragmatic terms, that MOPI’s mature jurisprudence is sufficiently flexible and dynamic to recognise intrusion-only claims using its existing legal framework. (shrink)

In this paper I discuss the proposal that the law of torts exists to do justice, more specifically corrective justice, between the parties to a tort case. My aims include clarifying the proposal and defending it against some objections (as well as saving it from some defences that it could do without). Gradually the paper turns to a discussion of the rationale for doing corrective justice. I defend what I call the ‘continuity thesis’ according to which at least part (...) of the rationale for doing corrective justice is to mitigate one’s wrongs, including one’s torts. I try to show how much of the law of torts this thesis helps to explain, but also what it leaves unexplained. In the process I show (what I will discuss in a later companion paper) that ‘corrective justice’ cannot be a complete answer to the question of what tort law is for. (shrink)

Tort law does many things—it determines substantive rights, decides what counts as violating these rights, recognizes rights of repair, and grants rights of redress. Two non-instrumentalist conceptions of tort law appear to dominate how we are supposed to understand and discharge these tasks. One conception takes tort law to be the law of wrongs, whereas the other conception identifies tort law with the law of victim recourse. I argue that both conceptions (including a combination of both) mischaracterize what tort (...) law does and what it should be doing. By contrast, the conception I shall defend—viz., the conflict theory of tort law—takes the basic task of tort law to be identifying the value of the conflict to which it responds (or which it shapes). In fact, there are three types of conflicts: inherently valuable, tolerably valuable, and valueless. Each type of conflict calls for a qualitatively different response by the law of torts. The conflict theory, I argue, changes the way we understand and determine the rights, duties, liabilities, and remedies that arise in and around tort law. I demonstrate this claim in connection with the tort of battery and then extend the analysis to capture the tort law of workplace and, in particular, trespass law as it applies to nonconsensual access to the workplace by organizers and by workers. (shrink)

Tort cases in which an actor justifiably takes or damages the property of another have resisted analysis in terms of fault or economic efficiency. I argue that writers such as Jules Coleman and Judith Thomson, who locate the wrongfulness of the necessity torts in the infringement of a property right, have not illuminated the issue of why compensation is owed in these cases. My positive argument locates the wrongfulness of an uncompensated taking in these cases in the actor's interference (...) with the autonomy of the property owner, and justifies compensation as a matter of corrective justice. (shrink)

US Senate is considering legislation designed to immunize small businesses from lawsuits brought by customers alleging to have been infected with COVID-19 while on the premises. The legislation seeks to subsidize reopening small businesses by reducing their vulnerability to liability. I argue that the legislation produces worse public health outcomes than existing liability regimes, obliterates claims to redress supported by corrective justice, and unfairly burdens victims by forcing them to become de facto insurers of their injurers. In the US, where (...) health insurance is inextricably linked with employment, and during the pandemic with the consequent loss of employment, the legislation is cruel in addition to being ineffective, unjust, unfair and inappropriate. Since I first uploaded this manuscript to Philpapers, Senate Republicans have in fact introduced specific legislation that is marginally different than the one I discuss in the manuscript. Instead of offering blanket immunity, the current Republican proposal offers a series of substantial barriers both to filing lawsuits and to securing a successful verdict at trial. I discuss these as an addendum to the main paper. In short, though the changes impact some features of my argument, they do not alter any of the conclusions. The current proposal produces worse public health outcomes than would existing tort regime; it leaves the vast majority of those with legitimate claims to repair in corrective justice without a remedy, when providing the opportunity to secure a remedy for wrongs is in large measure, the essential nature of tort liability. Worse still, it continues to render victims the de facto insurers of those who have wronged them; it imposes the burden of spreading risks on victims who are considerably less efficient risk spreaders than are businesses and hospitals; it constitutes an inappropriate response to the challenge it seeks to address, i.e. subsidizing various sectors of the economy by reducing their overall costs; and given the fact that in the US health insurance is too closely linked to employment, it shifts the costs of the pandemic to those who are most at risk of losing their health insurance, rendering the proposal cruel in addition to inefficient, unjust, unfair and inappropriate. For those interested, I am considering a short op-ed piece assessing the particular legislative proposal. If I follow through I will let the readership know where that can be found. (shrink)

Wrong beliefs, known by some as ‘alternative facts’, have proliferated lately in important areas of human life, including social, political, and public health domains. This can be and has been damaging. This brief article proposes an epistemological category classification of these wrong beliefs, with the following mappings: a) ‘No-Information’ marked by willful blindness produces ‘Empty Beliefs’; b) ‘Mis-Information’ yields ‘Mis(taken) Beliefs’; and c) ‘Dis-Information’ predicated on blatant distortions produces ‘Dis(torted) Beliefs’. This simple classification system, is perhaps epistemologically satisfying, and moreover (...) could have positive policy implications. (shrink)

This article continues the themes developed in a previous paper looking at reparations for past wrongs in post-colonial Australia. It narrows the focus to examine the scope of the law of tort to provide reparations suffered as a result of colonisation and dispossession, with particular emphasis on the assimilation policies whose legacy is now known emphatically, although it ought not be exclusively, as the Stolen Generations. The search for more than just words is particularly topical in light of the (...) Australian Prime Minister's formal apology in early 2008. This highly symbolic step must not lose momentum. That momentum could be both political and legal. In the latter context, we explore here the concept of alien tort, in the light of current Australian tort jurisprudence, which has thus far proved inadequate to achieve compensation for the harms suffered. Taking a comparative approach, procedural and substantive developments are to better deliver justice consistent with community values. In particular, the greater acceptance of psychological harm as actionable tortious conduct in Canada and the United States is examined. The article further examines the scope for stolen children to bring suit under the US Alien Tort Claims Act 1789. While the Australian government enjoys sovereign immunity in the courts of the United States, non-state organisations such as churches that were complicit in the forcible removals may be subject to United States jurisdiction wherever they have a presence in that country. The procedural and substantive elements of such a claim are discussed. In particular, the relevant cause of action, the issue of forum non conveniens and the statute of limitations will be analysed to map out whether a claim could be developed and successfully prosecuted. © Springer Science + Business Media B.V. 2009. (shrink)

This article discusses an anomaly in the English law of reproductive liability: that is, an inconsistency between the law’s approach to wrongful life claims and its approach to cases of negligent selection of gametes or embryos in infertility treatments (the selection cases). The article begins with an account of the legal position, which brings into view the relevant inconsistency: while the law treats wrongful life claims as non- actionable, it recognises a cause of action in the selection cases, although the (...) selection cases bear a relevant resemblance to wrongful life claims. The article then considers arguments that may be invoked in an attempt to reconcile the above two strands of the law. Three of these counterarguments consist in attempts to distinguish the selection cases from wrongful life claims. It is argued that these attempts fail to reveal a valid basis for treating these situations differently. A fourth possible counterargument levels against the present analysis a charge of reductio ad absurdum. It is shown that this argument suffers from a fundamental flaw caused by confusion between different senses of the term “identity”. Finally, the article discusses possible changes to the legal position that could rectify the problem. It argues that one of these changes, which focuses on legal redress for violation of personal autonomy, is particularly apt to resolve the problem at hand, but also highlights the need for further inquiry into the broader implications of introducing this form of redress into the law of torts. (shrink)

This paper explores whether it is possible to use Kant's writings on law and his Principle of Right to develop a theory of tort liability for the unintended harmful consequences to other persons that materialize from the wrongful risks created by human actions. The paper uses PR to identify such risks, and imputes to their authors the wrongful hindrances of other persons that result from them. PR protects the freedom of action of human agents, but it also permits them to (...) exercise that freedom by assuming or consenting to the creation of risks towards themselves, and the harms that materialize from such risks are imputed to those voluntary risk bearers. The paper also explains how PR entails both strict liability and negligence, in different domains of tort law, as standards of tort liability, so that neither of those standards is the fundamental principle of tort law; that principle, instead, appears to be the the Principle of Right. Der Beitrag untersucht, ob es möglich ist, Kants Rechtslehre und sein Allgemeines Prinzip des Rechts zu benutzen, um eine Theorie der deliktischen Haftung für Fahrlässigkeitstaten zu entwickeln. Fahrlässigkeitstaten sind rechtswidrige menschliche Handlungen, die unbeabsichtigt Gefahren für andere verursachen, durch die schädliche Folgen für diese anderen entstehen. Der Artikel benutzt das Allgemeine Prinzip des Rechts, um solche Risiken festzustellen und ihren Urhebern die daraus resultierenden rechtswidrigen Verletzungen anderer Personen zuzurechnen. Das Prinzip schützt die Handlungsfreiheit. Aber es erlaubt den handelnden Personen auch, diese ihre Freiheit auszuüben, insofern es ihnen gestattet, Risiken für sich selbst zu schaffen. Die dadurch entstehenden Schäden werden dem Handelnden auch zugerechnet, weil er die entsprechenden Gefahren freiwillig übernommen hat. Der Artikel erklärt, wie das Allgemeine Prinzip des Rechts in den verschiedenen Bereichen des Deliktsrechts bald eine Gefährdungshaftung, bald eine Haftung für Fahrlässigkeit begründet. Keiner dieser Standards enthält das eigentliche Grundprinzip des Deliktsrechts. Das Grundprinzip ist statt dessen Kants Allgemeines Prinzip des Rechts. (shrink)

The nonconsequentialist revival in tort theory has focused almost exclusively on one issue: showing that the rules governing compensation for acts reflect corrective justice rather than welfarist norms. The literature either is silent on what makes an act wrongful in the first place or suggests criteria that seem indistinguishable from some version of cost/benefit analysis. As a result, cost/benefit analysis is currently the only game in town for determining appropriate standards of conduct for socially useful but risky acts. This is (...) no small omission, and the failure of nonconsequentialists to acknowledge it or cure it can be traced to a number of recurring problems in the nonconsequentialist tort literature. Chief among them is the tendency to conflate prohibition and compensation, and to treat imposition of risk and imposition of harm as if they were distinct forms of conduct rather than the same conduct viewed from different temporal perspectives. (shrink)

Parallel moral luck problems exist in three different normative domains: criminal law, tort law, and conventional moral thinking. In all three, the normative status of an actor’s conduct seems to depend on matters beyond the actor’s control. Criminal law has historically imposed greater punishment on the murderer who kills his intended victim than on the identically behaved would-be murderer whose shot fortuitously misses. Tort law imposes liability on the negligent driver who injures someone, but no liability if, through good fortune, (...) the negligence injures no one. And, as BernardWilliams and Thomas Nagel have famously argued, conventional moral thinking often attributes greater blame to an actor for wrongful conduct if that conduct ripens into a terrible event than if it fortuitously causes no harm at all. This Article distinguishes two different dimensions of responsibility and then uses this distinction to explain the problem in all three areas. One dimension is called "fault-expressing responsibility": it is a matter of the degree to which one’s acts constitute conduct that can express one’s character or faultiness. A second dimension of responsibility is called "agency-linking responsibility." In this dimension, the degree to which a person is responsible for some event is dependent upon whether that event is an action of that person. Responsibility can differ in the agency-linking dimension even if it remains the same in the fault-expressing dimension. (shrink)

In this paper, I discuss Goldberg and Zipursky’s Recognizing Wrongs and argue that there is a tension between their philosophy of action as applied to the law of negligence and the idea that the directive-based relationality thesis is central and, therefore, the action and conduct of the defendant should not be part of the core explanation of the tort of negligence.

Gordon's emphasizes that the process of prosecution is crucial to the idea of crime. One who commits a public wrong is properly called to public account for it, and the criminal trial constitutes such a public calling to account. The state is the proper prosecutor of crimes: since a crime is ‘our’ wrong, rather than only the victim's wrong, it is appropriate that we should prosecute it, collectively. The case is not simply V the victim, or P the plaintiff, against (...) D the defendant. It is brought, as the Americans properly have it, by ‘the People’, or by ‘the Commonwealth’, against the defendant. This is a useful way in which to think about crimes and criminalisation. This chapter tries to develop this conception of public wrongs a little further, which also involves complicating it more than a little. It works from a version of liberal communitarianism that rejects the metaphysical version of the individualist's ‘unencumbered self’; but the account sketched here should be compatible with all but the most radically individualist kinds of liberal theory. (shrink)

This article reviews the development of hedonic value of life as a remedy in wrongful death and personal injury tort cases. Hedonic value estimates the worth of lost pleasures of living in an effort to compensate for intangible enjoyments, such as quality of education and environmental standards. This remedy goes well beyond the traditional approach which has compensated primarily for lost earnings and other expenses directly related to the tortious conduct. Most of the attention regarding hedonic value as a relatively (...) new tort remedy has focused on its application in non-business litigation. However, given the significant damage awards in recent cases, it is likely that this economic theory will arise in commercial litigation, especially products liability cases. The business community must be conversant with the ethical issues raised by this novel tort remedy in order to fashion a reasoned and socially acceptable contra-position. (shrink)

What is it for a duty or obligation to be directed? Thinking about paradigmatic cases such as the obligations generated by promises will take us only so far in answering this question. This paper starts by surveying several approaches for understanding directed duties, as well as the challenges they face. It turns out that shared agency features something similar to the directedness of duties. This suggests an account of directedness in terms of shared agency – specifically, in terms of the (...) so-called practical intimacy that holds between individuals when they act together. The final section addresses a challenge to the shared agency approach posed by legal wronging in tort law. (shrink)

This article continues the themes developed in a previous paper looking at reparations for past wrongs in post-colonial Australia. It narrows the focus to examine the scope of the law of tort to provide reparations suffered as a result of colonisation and dispossession, with particular emphasis on the assimilation policies whose legacy is now known emphatically, although it ought not be exclusively, as the Stolen Generations. The search for more than just words is particularly topical in light of the (...) Australian Prime Minister’s formal apology in early 2008. This highly symbolic step must not lose momentum. That momentum could be both political and legal. In the latter context, we explore here the concept of alien tort, in the light of current Australian tort jurisprudence, which has thus far proved inadequate to achieve compensation for the harms suffered. Taking a comparative approach, procedural and substantive developments are to better deliver justice consistent with community values. In particular, the greater acceptance of psychological harm as actionable tortious conduct in Canada and the United States is examined. The article further examines the scope for stolen children to bring suit under the US Alien Tort Claims Act 1789. While the Australian government enjoys sovereign immunity in the courts of the United States, non-state organisations such as churches that were complicit in the forcible removals may be subject to United States jurisdiction wherever they have a presence in that country. The procedural and substantive elements of such a claim are discussed. In particular, the relevant cause of action, the issue of forum non conveniens and the statute of limitations will be analysed to map out whether a claim could be developed and successfully prosecuted. (shrink)

This paper discusses what kinds of conflicts arise when a crime has been committed, and with whom—and in which of their possible roles—the offender should be seen as having such conflicts. The possible roles of the victim are in focus, as is the constitutive role of the act of criminalizing a certain kind of behavior. It is argued that while in the tort conflict the victim should be seen as a party qua him- or herself in a ‘fuller’ sense (and (...) with full freedom on how to handle the conflict, including dropping it), in the criminal law conflict it is community, the ‘we’, that should be looked upon as the party to the conflict with the offender. The victim should not be seen as excluded from the criminal law conflict, though: to the contrary, he or she is a member of community and has an important role to play. This role, however, needs to be strictly defined in a way that gives the victim the function of a certain kind of representative for ‘us’, the community. This role should not allow the victim much room to influence how the criminal law conflict is handled. The model I am suggesting presupposes—I think, at least—that criminal law conflict and tort conflict should be handled together at the same trial. (shrink)

Law students are usually told that the purpose of damages is to make it as if a wrong had never happened.3 Although torts professors are good at explaining this idea to their students, it is the source of much academic perplexity. Money cannot really make serious losses go away, and it seems a cruel joke to say that money can make an injured person “whole.” Worse still, if money could make an injured person whole, injuring someone and then paying (...) them seems just as good as not injuring them at all. (shrink)

The two leading theoretical approaches to tort law — economic analysis and corrective justice — are blind to distributive considerations. Moreover, even the main distributive approaches to tort law — loss-spreading and fairness — fail to emphasize egalitarianism as a distributive consideration. This article argues that egalitarianism should influence the normative evaluation of one’s conduct as negligent or not. It first explains why normatively negligence law should be sensitive to the egalitarian concern, suggesting three different accounts for this claim, based (...) on needs, equality, and desert as criteria for distribution. Second, it argues that egalitarianism is commensurate with the basic understanding of negligence law as reflecting corrective justice and notions of fault. The notion of fault is, therefore, reformulated from within, in order to accommodate egalitarianism. Third, I maintain that in order for egalitarianism to accommodate notions of corrective justice, egalitarian concerns should matter also at the stage of the standard of care. While the egalitarian concern can and should be integrated into the duty stage, I argue that such integration is insufficient. A correct and full understanding of the egalitarian concern and the tort of negligence requires a conclusion that the normative evaluation of one’s action as negligent or not cannot be separated from the distributive results that this action entails. The egalitarian concern works at the duty stage as an excuse for not imposing liability for wrongful activity. In contrast, at the standard stage, it works as a justification that turns an otherwise wrongful activity into a legitimate one. My claim is that morally we should usually expect more care from the better-off than from the disadvantaged. Findings of negligence are based on the failure to balance properly between one’s interests and those of another. In deciding to what extent the defendant should burden herself in order to prevent a loss to potential victims, one morally relevant criterion is the relative ability of the injurer and victim to bear precaution costs and expected accident loss, respectively. (shrink)

ABSTRACTIn this article, I begin to develop and defend a reformed concept of ‘cheating’ as ‘wrongful competitive norm violating’. I then use this to reject Oliver Leaman’s view that cheating is som...

ABSTRACTIn this article, I begin to develop and defend a reformed concept of ‘cheating’ as ‘wrongful competitive norm violating’. I then use this to reject Oliver Leaman’s view that cheating is som...

For corrective justice, liability is the consequence of the parties' being correlatively situated as the doer and sufferer of an injustice, and the remedy is seen as undoing that injustice to the extent possible. Combining consideration of legal doctrine and private law theory, this article applies the framework of corrective justice to gain-based damages for torts. Within this framework, restitutionary damages ought to be available only insofar as they correspond to a constituent element in the injustice that the defendant (...) has done to the plaintiff. The radical proposal that allows restitutionary damages for any wrongful gain is unsatisfactory because it fails to link the damages that the plaintiff receives to the normative quality of the defendant's wrong. In contrast, dealings in another's property give rise to such damages because the idea of property includes within the owner's entitlement the potential gainsfrom the property's use or alienation. Restitutionary damages should not be seen as serving a deterrent or punitive function; such a function cannot account for why the plaintiff, of all people, is entitled to the defendant's gain. Properly understood, even situations where the plaintiff's wilfulness or calculation increases the damage award fit within the framework of corrective justice. The corrective justice approach thus repudiates the notion that restitutionary damages are occasions for the promotion of social purposes extrinsic to the juridical relationship between the parties. (shrink)

In a landmark legal case in 1996, eugenics survivor Leilani Muir successfully sued the province of Alberta for wrongful confinement and sterilization. The legal finding implied that Ms. Muir should never have been institutionalized at the Provincial Training School of Alberta as a “moron” and sterilized under the Sexual Sterilization Act of Alberta. The trial itself revealed many unsettling features of the province’s practice of eugenics, raising questions about how a seemingly large number of people, like Ms. Muir, who were (...) not mentally defective, could have been wrongfully confined at an institution for the feeble-minded, and subsequently sterilized on eugenic grounds. Employing a three-agent model of wrongful accusation and conceiving of eugenics as wrongful more generally may help in understanding the operation of eugenic practices, such as institutionalization and sterilization, both in Western Canada and elsewhere. Eugenic practice involves a form of wrongful accusation that marks a significant departure from eugenic ideology. (shrink)

The notion that exploitation consists in taking wrongful advantage of another’s vulnerability is widespread in the philosophical literature. Considering the popularity of this view, it is disappointing to find that very few authors attempt to provide substantive accounts of characteristics they consider relevant vulnerabilities (i.e., those pertinent to exploitation), as well as of relevant features which make taking advantage of those vulnerabilities wrongful. In this paper, I analyze the few approaches (notably those presented by Ruth Sample and Robert Goodin) that (...) in fact provide such accounts, and I examine whether and how they pertain to exploitation in general, as well as to exploitation in more personal/intimate relationships. I conclude that these vulnerability-based accounts of exploitation are either too vague or too restrictive, since they tend to leave out many instances of exploitation (especially those within personal and intimate relationships), and are as such inadequate. (shrink)

This article seeks to understand contractual rights through an examination of the possible ‘property’ content in contracts in the context of the inducement tort and conversion. It argues that, contrary to popular perception, contracts and property are different shades of a similar phenomenon. Not being a reified ‘thing’ with stable features and structure, property is a relative rather than an absolute concept. To determine whether the holder of an intangible resource ought to be conferred with ‘property’ or exclusive control of (...) access to such resource, one has to evaluate the relevant practical, legal and moral considerations. Applied to the context of inducing breach of contract and conversion, this analysis demonstrates that a contractual right is in fact a composite collection of distinct interests and each tort may be protective of one or more of such interests. Thus, liability is imposed for inducing breach of contract because tort law recognizes the promisee's exclusive right to the peremptory status of the promisor's promise. On the other hand, the wrongfulness of converting a contract lies in the usurpation of a contracting party's control, or the exclusive entitlement to decide whether and how to exercise her rights under the contract. (shrink)

This book collects John Gardner's celebrated essays on the theory of private law, alongside two new essays. Together they range across the central puzzles in understanding the significance of outcomes, the role of justice in private law, strict liability, the reasonable person standard, and the role of public policy in tort law.

The stigma of reporting wrongdoing at work: When doing right is perceived as wrong The act of reporting unethical, illegal and illegitimate practices at work, whistleblowing, can be associated with a stigma for the individual in question. This article presents the stigmatizing position of reporting wrongdoing at work, types of wrongdoing and individual antecedents. Since empirical studies have shown very few systematic results regarding individual differences, one way to decrease societal stigma can be to relate the act of reporting to (...) other known acts that are perceived upon as more positive within society. We therefore also discuss similarities and differences between the idea of whistleblowing and other concepts such as Organizational Citizenship Behaviour, in-role, and extra-role behaviour before we make some concluding remarks. (shrink)

The American Journal of Bioethics, Volume 12, Issue 4, Page 15-17, April 2012.

Is it wrong to bring children who will have serious diseases and disabilities into the world? In particular, is it unfair to them? The notion that existence itself can be an injury is the basis for a recent new tort known as "wrongful life" (Steinbock, 1986). This paper considers Feinberg's theory of harm as the basis for a claim of wrongful life, and concludes that rarely can the stringent conditions imposed by his analysis be met. Another basis for maintaining that (...) it is morally wrong to have children under extremely adverse conditions is suggested: a principle of parental responsibility. We also argue that having children under such conditions may be unfair to the children, even if they have not been (in Feinberg's sense) harmed. Finally, we consider when conditions are sufficiently awful that having children might be viewed as incompatible with being a good parent and unfair to the child. (shrink)