Abstract
Abstract This chapter challenges the utilitarians’ claim with respect to the standards of care in negligence law. Negligence liability is the most common type of tort liability and is thought to be the most obvious example of tort law’s utilitarian foundation. If the utilitarian efficiency theory cannot explain negligence liability – its prime doctrinal example in its favorite field of common-law liability – it is in very serious trouble. Conversely, if the equal freedom theory can explain and justify negligence liability, it will have cleared what many see as the biggest hurdle for a non-utilitarian theory of tort liability. Negligence is generally described as behaviour that creates unreasonable foreseeable risks of injury. Almost all jury instructions do not provide any test or definition of what constitutes unreasonably risky behavior, other than an often circular reference to the ‘ordinary care’ that would be exercised by the reasonable or prudent person in the same or similar circumstances.
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