Afterword What Has Philosophy to Learn from Tort Law?


in The Philosophical Foundations of Tort Law

Published in print July 1997 | ISBN: 9780198265795
Published online March 2012 | e-ISBN: 9780191682971 | DOI:
Afterword What Has Philosophy to Learn from Tort Law?

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Philosophy might learn from tort law the difference between practical reality and philosophical frivolity. J. L. Austin was disposed to give that answer. Austin said that it was common sense or, perhaps, ordinary language, and one reason he sometimes gave for this judgement was a quasi-evolutionary one. This chapter presents what it calls a quasi-evolutionary account of the strength of some legal concepts and distinctions, the Picture. The Picture is without doubt highly idealised. There are perhaps two main directions from which this suggestion may come. One objection is that the Picture overestimates the effects of legal argument. The idea here is that cases are decided on the basis of external values or principles – such as wealth maximisation, utility, or equal freedom – and that the legal arguments and the concepts invoked in them (fault, negligence, intention, proximity of causation, or whatever) are, at the limit, merely rhetorical decorations.

Keywords: philosophy; tort law; J. L. Austin; legal argument; wealth maximisation; utility; equal freedom; fault; negligence; intention

Chapter.  5264 words. 

Subjects: Jurisprudence and Philosophy of Law

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