Fairness and Fault

Abstract

Abstract Chapter Four addresses avoidable harm and reasonable precaution—the central preoccupations of negligence law. Negligence law articulates tort’s dominant principle of responsibility with respect to risks of physical harm. Those who are physically harmed through the negligence of others may enlist the assistance of the state to compel those who have so harmed them to make reparation for the injuries that they have inflicted. The dominant economic view of negligence understands it in cost-benefit terms. Cost-justified precaution maximizes wealth and thereby promotes welfare. Negligent conduct is inefficient conduct. From a social point of view, negligent conduct instrumentally irrational because it fails to maximize value. Tort doctrine, however, seeks to specify the demands of reasonable risk imposition, not the demands of rational risk imposition. We act reasonably when we take the interests of others into account, treat their interests as equal in importance to our own, and seek to act on principles that are acceptable from both their standpoints and ours. Taking negligence law’s commitment to reasonableness seriously directs our attention to the separateness and independence of persons and to the special, and negative, moral significance of physical harm. With these concepts in hand, Chapter Four develops an interpretation of negligence law as a law of reasonable precaution, concerned to articulate what we owe to each other in the way of coercively enforceable mutual obligations to protect each other from injury as we go about our lives in civil society.