Abstract

The existence of a duty not to harm in tort law is a controversial issue in the literature. In this paper, I try to show that the arguments normally offered to reject that such a duty exists are not compelling. Then, after presenting the conception of legal obligation I endorse, I will develop four arguments to support the claim that a duty not to harm is present in tort law systems that share some common features. The four arguments are not individually conclusive. However, when combined, they present an image of tort law much more familiar and transparent to the participants of the practice than the one that results from the rejection of a duty not to harm. Ultimately, the existence of the duty not to harm is established in the same way we know that some planet or star exists, even if we cannot see it directly, because of the way all the other spatial bodies move around it. The same happens, I argue, with the duty not to harm. Its existence is shown by the way the practice operates around it.