Download Philosophy law of torts by Gerald J. Postema PDF

By Gerald J. Postema

While injuries happen and other people undergo accidents, who should endure the loss? Tort legislation deals a posh algorithm to respond to this question, yet in past times philosophers have provided little in terms of research of those principles. In 8 essays commissioned for this quantity, best felony theorists study the philosophical foundations of tort legislations. This assortment could be of curiosity to pros and complex scholars operating in philosophy of legislations, social idea, political conception, and legislation, in addition to an individual looking a greater knowing of tort legislations.

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Are they worth bearing as the price of earning a living? This kind of individual choice is not, however, the chief concern of the law of accidents. The problem of accidental harm is a problem of social choice, a matter of reconciling the competing claims of liberty and security for a plurality of persons. Because the final aims and aspirations of free and equal persons are diverse and incommensurable, the principles of social choice differ markedly from those of individual choice. Individually, it may be rational to expose ourselves to risks that it would be unreasonable to impose on others.

Indeed, even when wealth and intensity of preference are imperfectly aligned, the maximization of wealth figures in the maximization of wellbeing; imperfections in the congruence between wealth and welfare are best cured by maximizing wealth in accident law and redistributing it through tax law (Kaplow and Shavell 1994). Libertarian conceptions of the subject start from an apparently opposite premise – from the conviction that the law of accidents should protect individual rights, not promote the general welfare.

The requirement that reciprocal risks be reasonable entails the satisfaction of this condition. Second, the terms of reasonable risk imposition must be terms of equal freedom. Reciprocity of risk defines a regime of equal freedom because reciprocity exists when risks are equal in probability and gravity. When risks are equal in these respects, persons relinquish equal amounts of security and gain equal amounts of liberty. Third, social contract theory asks that the burdens and benefits of risk be fairly distributed.

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