Wednesday, October 16, 2013

secularizing the foundations of tort law in 250 words or less

The 'Glorious Principle' of negligence liability is presented in the relevant case as an application of the ethic of reciprocity, cited here through the Christian filter of the Parable of the Good Samaritan. It is suggested that this can be converted into legal language by acknowledging the rule that we must take reasonable care to avoid any action, or lack of action, that may produce foreseeable harm to others who ought to be reasonably contemplated as being in the path of any harm that may result from such action or inaction.  Unfortunately, however, Lord Atkin's derivation from the ethic of reciprocity is not logically sound. The concept of negligence developed in the case suggests that we are liable to provide compensation for behaviour that causes foreseeable harm, not that we have a positive responsibility to help our neighbours when in need. In fact, the courts have since largely rejected the Good Samaritan principle as a basis for negligence. The moral concept of a duty of care seems, rather, to trace back to Kant. Something may also be said about negligence as a tort being an application of the social contract, which can establish the principle as an extension of classical negligence. Proudhon's concept of a contract tying us to each other directly is most applicable in context. In its most basic, however, it is simply another restatement of the many diverse harm principles; it simply states that we have an obligation to make an effort to not harm others.

LAWS 2202,
aug, 2012


http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/tort.html