What makes careless conduct careless is easily one of the deepest and most contested questions in negligence law, tort theory, and moral theory. Answering it involves determining the conditions that make the imposition of risk unjustifiable, wrong, or impermissible. Yet there is a still deeper as well as overlooked and undertheorized question: Why does subjecting others to risk of harm call for justification in the first place? That risk can be impermissibly imposed upon otherspresupposes that imposing risk is the kind (...) of thing that can be impermissible. Unless imposing risk can be impermissible after all, unjustified risking is literally impossible. In this discussion, I explore what I call the moral significance of risking, arguing that the moral significance of risking resides in a certain kind of nonmaterial autonomy interest that is implicated whenever one imposes risk of harm on another. (shrink)
Arguing about Law introduces philosophy of law in an accessible and engaging way. The reader covers a wide range of topics, from general jurisprudence, law, the state and the individual, to topics in normative legal theory, as well as the theoretical foundations of public and private law. In addition to including many classics, Arguing About Law also includes both non-traditional selections and discussion of timely topical issues like the legal dimension of the war on terror. The editors provide lucid introductions (...) to each section in which they give an overview of the debate and outline the arguments of the papers, helping the student get to grips with both the classic and core arguments and emerging debates in: the nature of law legality and morality the rule of law the duty to obey the law legal enforcement of sexual morality the nature of rights rights in an age of terror constitutional theory tort theory. Arguing About Law is an inventive and stimulating reader for students new to philosophy of law, legal theory and jurisprudence. (shrink)
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.
It is the purpose of this article to make the positive case for an under-appreciated conception of rights: specified rights. In contrast to rights conceived generally, a specified right can stand against different behaviour in different circumstances, so that what conflicts with a right in one context may not conflict with it in another. The specified conception of rights thus combines into a single inquiry the two questions that must be answered in invoking the general conception of rights, identifying the (...) content of a right in light of what is justifiable to do under the circumstances. I present the case for specificationism in four sections, focusing on property rights. First, I argue that rights are based upon more fundamental reasons, and that this instrumentalism is compatible only with specificationism—a fact necessity cases illuminate. Next, I explain how specificationism embodies a fully moralized understanding of rights, and point to a dilemma that one faces in denying this. Third, I argue that the gap in property rights exposed in necessity cases entails that there is no right-based duty to compensate in such cases. Finally, I offer an error theory to explain the (false) attraction of the general conception of property rights. (shrink)
An earlier article of mine, 'Lost in Moral Space: On the Infringing/Violating Distinction and its Place in the Theory of Rights', was devoted to rebutting Judith Jarvis Thomson's arguments in favor of incorporating the distinction between (permissibly) infringing and (impermissibly) violating a right. In 'A Defence of Infringement', Andrew Botterell maintains that my criticisms and attempted rebuttals of Thomson's position fail, and that despite my efforts to show otherwise, the category of right infringements is secure. In this reply, I explain (...) why I demur. (shrink)
The infringing/violating distinction, first drawn by Judith Jarvis Thomson, is central to much contemporary rights theory. According to Thomson, conduct that is in some sense opposed to a right infringes it, while conduct that is also wrong violates the right. This distinction finds a home what I call, borrowing Robert Nozick's parlance, a "moral space" conception of rights, for the infringing/violating distinction presupposes that, as Nozick puts it, "a line (or hyper-plane) circumscribes an area in moral space around an individual." (...) In this paper, I argue against the moral space conception of rights, and more specifically, against incorporating the infringing/violating distinction into a theory of rights. There are other compelling ways to think about rights and it is my goal to stimulate their exploration. (shrink)