Abstract
In this paper, I discuss Goldberg and Zipursky’s Recognizing Wrongs and argue that there is a tension between their philosophy of action as applied to the law of negligence and the idea that the directive-based relationality thesis is central and, therefore, the action and conduct of the defendant should not be part of the core explanation of the tort of negligence.
The criticism is formulated in terms of the following dilemma:
If the directive-based relationality thesis is at the centre of the tort of negligence, then the defendant’s action and conduct should not be part of the core explanation of the tort of negligence. On the other hand, if the sound philosophy of action shows that we cannot sever the defendant’s conduct from the plaintiff’s injury, then the defendant’s action might become part of the core explanation of the law of negligence. Therefore, the directive-based relationality thesis-in terms of the pair rights/duties-as emerging legal practices is secondary to an explanation in terms of the defendant’s action. Either it is the case that the defendant’s actions and conduct should not be part of the core explanation of the tort of negligence or, the defendant’s action and conduct is part of the core explanation of the tort of negligence and the directive-based relationality thesis is secondary to the former. Furthermore, the directive-based relationality thesis might be dispensable.
If the premises of the dilemma are sound, then Goldberg and Zipursky would need to choose between the following two options: a) embrace the directive-based relationality thesis,
in which case they would need to ignore the argument that defends the view that action and injury or loss are not severed and, consequently, an explanation in terms of action becomes unnecessary and plays no central role in the tort of negligence; or b) embrace a sound theory of action whereby action and injury or loss are not severed, in which case they would need to ignore the directive-based relationality thesis or at least explain how it is derivative of their sound theory of action as it will play no central role in the explanation and justification of negligent law. Both alternatives seem unpalatable. In the latter case, if they ignore the directive-based relationality thesis, the explanation should be carried out in terms of action, conduct, capacity and probably outcome-responsibility, partially ignoring or suspending the question of rights and duties. In a weaker version of this option, they would need to show how the directive-based relationality thesis is derivative of or dependant on their sound theory of action. If they embrace the directive-based relationality thesis, they would need to ignore the question concerning action and conduct as non-severable from injury and loss as central or paradigmatic. This is because it would render mysterious the role played by this theory of action in a coherent explanatory and justificatory theory of negligent law; all the explanatory and justificatory work would be done by the directive-based relationality thesis. Inevitably, however, once we ignore or discard the idea that a defendant’s action cannot be severed from the plaintiff’s injury in describing negligent actions, problems related to moral luck and consequentialist puzzles will arise. It will not be clear why our legal and social practices, and self-understanding do not embrace ‘moral luck’ conceptions, consequentialist, or economic analyses of the law of negligence. Furthermore, as a counter-analysis, a more robust formulation of the duty/right pair would need to be provided to rescue the relationality thesis (or at a least a variation of it).