《英文侵权法中的哲学问题SSRN-id1178562》.pdfVIP

Philosophy Compass 3/4 (2008): 734–748, 10.1111/j.1747-9991.2008.00156.x Philosophical Issues in Tort Law John Oberdiek* Rutgers University Abstract The union of contemporary philosophy and tort law has never been better. Perhaps the most dynamic current in contemporary tort theory concerns the increasingly sophisticated inquires into the doctrinal elements of the law of torts, with the tort of negligence in particular garnering the most attention from theorists. In this article, I examine philosophically rich issues revolving around each of the elements constituting the tort of negligence: compensable injury, duty, breach, actual cause, and proximate cause. Introduction Contemporary philosophy and tort law have enjoyed a happy union at least since the publication of H. L. A. Hart and Tony Honoré’s Causation in the Law in 1959, and the relationship has perhaps never been better. Tort theory today is an exceptionally active field within legal philosophy, and has widened its scope well beyond Hart and Honoré’s project of characterizing the legal notion of causation. For example, the examination of the nature of tort law itself, featuring debate between economic and corrective justice accounts, has commanded center stage in tort theory for some time. Inquiry along these lines has advanced significantly in recent years, due especially to Jules Coleman’s powerful criticisms of the economic model and equally powerful defense of a corrective justice model, and also in part to the development of competing conceptions of corrective justice and fresh doubts about that family of theories.1 But although debate over the nature of tort law remains lively, it does not dominate tort theory. Indeed, among the many currents in contemporary tort theory, perhaps the most dynamic concer