Oxford Journal of Legal Studies 41 (4):1174-1196 (2021)

John Oberdiek
Rutgers University - New Brunswick
The elements of the tort of negligence are well known: injury, duty, breach, and actual and proximate cause. It is uncontroversial that the plaintiff must establish each of these elements to make out the prima facie case of negligence. Accordingly, there is no tort unless all of these elements are established. As torts are understood to be wrongs, it seems to follow that there is a wrong if and only if all of the elements of the tort of negligence are satisfied. It seems to follow, then, that the wrong of negligence is constituted by the completed tort of negligence. This is the conclusion that I wish to challenge here. I shall contend that the wrong of negligence does not require the kind of legally cognisable injury that the tort of negligence plainly requires. Causing a material harm to another is not a prerequisite for wronging them. Instead, one wrongs another when one breaches the duty of care that one owes to them.
Keywords No keywords specified (fix it)
Categories (categorize this paper)
DOI 10.1093/ojls/gqab011
Edit this record
Mark as duplicate
Export citation
Find it on Scholar
Request removal from index
Revision history

Download options

PhilArchive copy

Upload a copy of this paper     Check publisher's policy     Papers currently archived: 71,316
External links

Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
Through your library

References found in this work BETA

No references found.

Add more references

Citations of this work BETA

No citations found.

Add more citations

Similar books and articles

Philosophical Issues in Tort Law.John Oberdiek - 2008 - Philosophy Compass 3 (4):734-748.
The Boundaries of Negligence.Daniel More - 2003 - Theoretical Inquiries in Law 4 (1).
Duties of Care—Do They Really Exist?Nicholas J. McBride - 2004 - Oxford Journal of Legal Studies 24 (3):417-441.
Responsibility in Negligence: Why the Duty of Care is Not a Duty “To Try”.Ori J. Herstein - 2010 - Canadian Journal of Law and Jurisprudence 23 (2):403-428.
Protecting Reputation: Defamation and Negligence.Eric Descheemaeker - 2009 - Oxford Journal of Legal Studies 29 (4):603-641.
Dimensions of Negligence in Criminal and Tort Law.Kenneth W. Simons - 2002 - Theoretical Inquiries in Law 3 (2).
Many Duties of Care—Or A Duty of Care? Notes From the Underground.David Howarth - 2006 - Oxford Journal of Legal Studies 26 (3):449-472.
Crimes of Negligence: Attempting and Succeeding. [REVIEW]Alfred R. Mele - 2012 - Criminal Law and Philosophy 6 (3):387-398.
Recent Developments in Health Law.Jacqueline G. Cohen - 2005 - Journal of Law, Medicine and Ethics 33 (4):866-869.
Recent Developments in Health Law.Jacqueline G. Cohen - 2005 - Journal of Law, Medicine and Ethics 33 (4):866-869.
Prudence, Benevolence, and Negligence : Virtue Ethics and Tort Law.Heidi Li Feldman - 2000 - In Colin Patrick Farrelly & Lawrence Solum (eds.), Virtue Jurisprudence. Palgrave-Macmillan.


Added to PP index

Total views
11 ( #855,818 of 2,519,498 )

Recent downloads (6 months)
7 ( #100,565 of 2,519,498 )

How can I increase my downloads?


My notes