This lively and concise article surveys aspects of the philosophy of corrective (classically, commutative) justice in the domain of the Law of Torts, specifically the law of negligence. It begins by outlining the central problem: that the lawyer’s concepts of equality, principle and right do not seem relatable to the moral concepts most readily attributive to citizens, those of virtue, value and good. In a beautiful analytical movement, the author demonstrates that such divisions are merely apparent, not real. In doing so, the article connects this theme to that of moral luck: the idea that we may not, in fact, be in control of the consequences of our action such, that it is, at least, problematic to ascribe legal responsibility to our negligent actions.
The idea is not new: it reaches back certainly to Aristotle’s treatment of virtue in the Nicomachean Ethics, where he observes that virtue is insufficient for happiness, for a person needs a degree of good fortune to ensure that their efforts are rewarded, and a cursed though virtuous person cannot be described as happy. This relates to the multiple possibilities within which each person moves, sometimes fortunately, sometimes not. The law of negligence represents an intervention into these situations, based not on the form of the will of the acting person, but on external freedom (borrowing terms from Kant). A few sentences are worth quoting in detail:
For corrective justice theorists, Kant’s idea of external freedom provides the normative foundation for the losses and gains that are the outcome of human interaction, and normatively grounds the restoration of these losses and gains. Because your movements and actions have undermined my choices, because in the exercise of your external freedom you have undermined mine, it is justifiable for the judge to restore this inequality and exercise coercion via the law. In other words, the illegitimate use of your force on me justifies law’s force on you. (P. 107.)
The law of negligence thus obliterates the problem of moral luck by suppressing it: it considers external freedom to be the only relevant issue facing the law, to the exclusion of the question of will. The law is essentially retrospective as it looks backward to what has already happened.
Yet the moral psychology of the citizen is to look forward, to consider what it would be like for their life to go well, and for the lives of others also to go well. (This claim is founded upon extensive research and learning, which unfortunately the present article does not expound.) The relevant ground of thinking is that one seeks to avoid doing injustice (harm?) to oneself and to others in the first place. Theorists of corrective justice present two arguments against the compatibility of negligence law with the position just stated: (1) questions about “what I should do” are incompatible with the basic logic of tort law, which is concerned not with willing in a vacuum but where one person’s willed actions come into contact/conflict with those of others; (2) law and justice are a matter of rights and duties, not prudential practical reasoning.
First, the internal logic thesis. The author states that “[l]ike the values of love or friendship, the values of tort law have an internal logic, but this internal logic is expansive and includes underlying moral and ethical values as learned and grasped in experience…” (P. 108.) Similarly, friendship and love have an internal logic (so admirably described by John Finnis) but are not limited to this logic, for it is also informed by basic scientific facts about time and materials, etc. Even the forward-thinking aspect of practical reason (the question “what should I do?”) inhabits a realm of rules, rights and obligations, and is not rigidly separate from such concepts. Likewise, judges may legitimately give consideration to insights arising from the citizen’s perspective, that of how to live well and how others may live well. The author then states that “The facts and circumstances of the case provide a concrete particularity to the value of physical integrity. The aim of the judges’ reasoning is to determine the specific content of the plaintiff’s values, but she also has a forward-looking perspective…” (P. 109.) I, for one, am unsure whether such an aim can be attributed to judges’ reasoning, and it is not to my mind adequately supported by the subsequent extract from Donoghue v. Stevenson. But even if this is correct, the author’s main point is plausible, that judges are in the business of considering reasoning from the citizen’s perspective: something intrinsically connected to the question of reasonableness.
Now the separation thesis. The argument here is somewhat intricate but it reduces at least in part to one familiar to readers of Finnis, that the catalogue of wrongs to be found in Aquinas is implicitly a litany of rights and (per Wesley Hohfeld’s analysis) corresponding duties. Thus, “[A]ttributions of responsibility aim not only to correct the wrong, but to engage the citizen to recognize potential wrongful conduct and avoid it. Blameworthy judgements in ethics and liability judgements in law are not only a reaction to and protest against the injurer’s actions or the plaintiff’s actions, but a warning for future agents and citizens on how to engage with activities which inevitably, and due to the kind of creatures we are, involve values.” (P. 112.)
In the following main section, the article applies these insights to the domain of negligence law: “I argue that the law of negligence presents citizens with proleptic thoughts on values qua descriptions and re-descriptions to be engaged with, i.e., unique ways of realizing the values of security and physical integrity in the particular circumstances of specific actions.” (P. 112.) Thus, in Donoghue, we have manufacturers’ processes and practices revised in the light of the physical integrity of consumers. Yet a different question might be: how can (or should) a society go about proleptically setting out licit and illicit actions except through the concepts of right and duty? For if each person can be said to possess liberties, not only against the state but also, crucially, against their neighbours, this must be achieved on the basis of reasonably precise boundary lines, and not mere act-descriptions. For the latter, however precisely they are intended, cannot supply the requisite certainty that one’s neighbour may not object to one’s activities (without establishing a right that they should cease) and involve them in expensive and stressful litigation.
In a long penultimate section, these questions are brought back to the idea of moral luck. Negligence law does not consist solely in a rights-based system of juristic thought: we are asked to imagine two drivers, both of whom have a lapse in attention, but only one of whom resultantly collides with and harms a pedestrian. The author points out that if negligence law mirrored the rights-focused structures of contract law, the claimant (if unharmed) would be able to sue the driver for nominal damages. But this is not the case. Rather, the structure of negligence law is proleptic, engaged with questions of how a reasonable person would form their character. While the author successfully makes clear this second aspect of law (and a quotation from the Nicomachean Ethics makes clear that the view was also Aristotle’s), more could be said about how this development of thought successfully solves the problem of moral luck. It may well be that the author intends just such an extension of thought in a later essay.
Finally, the essay briefly considers the question of civil maturity. The following two sentences are illuminating: “I accept [Bernard] Williams’s point that we need a psychologically realistic account of ethical and legal responsibility. I have shown that the conception of deliberation needs to be psychologically realistic.” (P. 118.) This is perhaps the most important question facing the author’s analysis. For the overwhelming majority of citizens carry on the task of practical reasoning (deliberating about action) in ways, more or less prudential in the narrow, Hobbesian sense, almost entirely independent of legal concepts, forms and distinctions, and in ways that are by no means as sophisticated in relation to ethics that the model presupposes. This does not of course mean that most people are starkly irrational, but it does mean that some account of ordinary reasoners, whom Aristotle all but dismisses as “the masses” who “desire pleasure”, is required and a sense of how the gap is to be spanned between the ordinary person and the student of ethics. Perhaps the author is correct, that (as Aristotle also says) the answer lies with the educative function of the law.
