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Afterword What Has Philosophy to Learn from Tort Law?

University Press Scholarship Online

Oxford Scholarship Online

The Philosophical Foundations of Tort Law


David G. Owen

Print publication date: 1997


Print ISBN-13: 9780198265795
Published to Oxford Scholarship Online: March 2012
DOI: 10.1093/acprof:oso/9780198265795.001.0001

Afterword What Has Philosophy to Learn from Tort Law?


BERNARD WILLIAMS

DOI:10.1093/acprof:oso/9780198265795.003.0022

Abstract and Keywords


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 quasievolutionary 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

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Afterword What Has Philosophy to Learn from Tort Law?


I. Testing Common Sense: The Picture
One answer to my question is that philosophy might learn from tort law the difference
between practical reality and philosophical frivolity. J. L. Austin was disposed to give that
answer. Austin was, like Wittgenstein and Nietzsche, struck by the irresponsibility of
philosophy, its light-headed willingness to suppose that large problems could be usefully
addressed by some distinctions or formulations that were simply thought up of a Sunday
afternoon. (There was a difference between Austin and those others: unlike them, he did
more or less take it for granted that there was a subject, philosophy, which might come to
conduct itself more seriously and usefully in these respects, even if he was less than
clear about the form that the subject might take.)
What is this contrast? What is it that supposedly provides us with distinctions more
adequate than those offered by philosophy? Austin said (with some reservations) that it
was common sense or, perhaps, ordinary language, and one reason he sometimes gave
for this judgement was a quasi-evolutionary one, that common sense (as I shall call it)1
had been, at least with regard to central human concerns, under heavy selective
pressure for a very long time, and the distinctions that had survived and flourished in it
were likely to answer fairly reliably to human needs. This was not a very good answer, for
more than one reason, and it is not easy to tell how seriously Austin took it. However, it
does at least provide a starting point for thinking about something less general, a contrast
drawn in similar terms between philosophy and the law. Austin also appealed to the law,
and the famous article A Plea For Excuses, in which he sets out some of his
methodological (p.488) concerns, mentions a (rather grisly) example drawn from a
nineteenth century case.2
If the lawfor instance, the law of non-intentional torts3uses certain concepts or
distinctions that have been variously applied, modified, and reinterpreted within a legal
tradition over a period of time, does this offer any reason at all for thinking that those
concepts and distinctions provide a sound and reliable way of thinking about the relevant
areas of experience? More exactly, the question is whether such facts provide any
independent reason, since it might be that the legal use of certain ideas did no more than
witness to what was clear anyway, that those ideas seemed obvious to common sense. If
the use of certain ideas in the law does more to show that those ideas have strength than
is done by the mere fact that they are part of the currency of common sense, this will
have to be connected with special features of the lawwith the idea, most plausibly, that
the legal context is one in which a lot turns on the outcome, and hence on the arguments
that lead to or legitimate legal outcomes. This is itself a kind of evolutionary argument. The
sense in which a lot turns on the outcome is that the issue is likely to be vigorously
disputed by the parties involved, that the decision may have implications for other parties
who will watch the outcome with interest, and so forth, with the result that only robustly
argued conclusions, which are at least consistent with public conceptions of what makes
sens in such connections, are likely to survive. I shall call this quasi-evolutionary account
of the strength of some legal concepts and distinctions, the Picture.

II. Two Objections

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Afterword What Has Philosophy to Learn from Tort Law?


The Picture is without doubt highly idealized. It may be suggested that it is worse than
idealized, and rests, rather, on some mistake of principle. 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 principlessuch as wealth maximization, utility, 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. The other objection is that the Picture under-estimates the
autonomy and peculiarity of legal concepts: that the requirements, (p.489) purposes,
and traditions of the law are special enough for its distinctions and principles to stand at a
distance from common sense and from what people need to say and think in extra-legal
contexts.
The two lines of objection may seem to run in opposite directions, but this is not
necessarily so. One can combine them, in claiming both that legal argument is highly
technical and that it fails to determine the outcome. Indeed, the suggestion may be that
the reason legal argument needs to be very technical is in order to conceal the fact that it
fails to determine the outcome: the technicalities provide a mystification that conceals the
underlying processes. Whether the objections are combined in this way or not, they do
between them threaten the Picture, which was invoked to explain how processes of the
law could remind philosophy of reality by showing distinctions recognizable to common
sense under pressure where much turns on the outcome. Broadly speaking, the first
objection is that the distinctions invoked are recognizable to common sense, but are not
under pressure; the second is that the distinctions may perhaps be under pressure (if
they are not simply acting as a mystification), but they and the outcomes that they are
invoked to support are only remotely related to common sense. On either showing, the
idea that the law can shed light on common sense, or indeed on anything outside itself,
loses momentum.
Neither objection is fatal. Even if what the first objection claims is true, it is not clear that
very much follows from it for the present question. Rationalizations must have some force
even to serve as rationalizations, and the rationalizations which, on this account, serve as
the rhetoric of the legal process through which optimal allocations of costs are made (or
whatever the supposed underlying principle or value is taken to be) must have some
strength in order to discharge this role. Indeed, it may be that they will turn out to have
almost as much strength as the Picture requires.
The latent economic criteria, or whatever they may be, which, according to the type of
theory invoked by the first objection, determine the outcomes at the fundamental level
are not manifestly in operation. If they were, the theory would not be controversial, and
it would also have nothing new to recommend normatively, if (as some such theories do)
it has that aim. The arguments that do the work at the manifest level must be the familiar
ones. The theory regards them as rationalizations, but they must nevertheless do some
work, since some process is actually going on at the manifest level, and that process must
have some of the characteristics (of claims being argued against counter-claims and so

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Afterword What Has Philosophy to Learn from Tort Law?


on) that were identified in the Picture.
Of course, if the theory claims that the processes at the manifest level (conventional
argument about negligence, proximate cause, and such) conceal some other criteria
(economic or whatever) which actually determine the outcome, it must give some
account (as all such functionalist theories must) of the ways in which those other criteria
can guide, be served by, and (p.490) most generally relate to the manifest level of
argument. This will have certain implications about the nature of the arguments at the
manifest level: such conventional arguments may, for instance, have to display a certain
flexibility or porosity which allows them to respond to the functional requirements of the
considerations that operate at the latent level. But if the theory can give an account of this
(and it will not be a credible or interesting theory unless it can), this result itself will make
the operations of the law interesting and indeed instructive to philosophy. For this
porosity can scarcely be a feature of the conventional criteria simply as they are used in
the law. If that were so, they could not sustain a credible rationalization. The porosity will
rather have to be a feature, or at least a potentiality, of such criteria as they are used
even outside the law, and this is something that philosophy should understand about
them. Moreover, it may be that the porosity of the everyday common sense criteria
serves to some degree the same function outside the law as (according to the theory) it
serves inside the law, of allowing the criteria to be manipulated in accordance with
economic or other latent considerations, and if that is so, it is equally something that
philosophy should understand.
The second objection was that the arguments and concepts used in the law were too
specialist, too removed from extra-legal thought, to provide philosophy with any insight
into the ways in which extra-legal thought works. There are, obviously, technical aspects
of the law for which this is true, but so far as the most important matters here are
concernedmatters such as fault, intention, carelessness, proximate cause and
consequence, and so onthe claim is simply not convincing, at least when an important
concession has been made. It is true that the law must often reach a conclusion about
questions to which common sense would be happy to leave the answer indeterminateto
which, indeed, in many cases, it would be unhappy to do anything but leave the answer
indeterminate. There are familiar examples of this in the criminal law. If the assailant pulls
the trigger in one jurisdiction and the bullet hits the victim in another, common sense may
well be content to say just that much, but the law needs to decide where the victim was
killed. More significantly, there are questions of an agents state of mind, andas an
interesting if marginal consequenceof who is the criminal agent in cases, for instance, of
hypnotic suggestion.4 In all these matters, the law can be seen as forcing the issue
relative to what I am calling common sense; though I shall suggest later that in certain
connections the law may merely be a more determined accomplice of common (p.491)
sense in doing this, and indeed that this is one respect in which philosophy may learn from
the operations of the law.

III. Forcing The Issue


The law of torts in its own ways also forces the issue, notably on the extent and

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Afterword What Has Philosophy to Learn from Tort Law?


directness of causation, and on questions of state of mind that present themselves in
relation to such matters as intent, recklessness, and, to some extent, negligence. It has to
force the issue, for a reason that superficially is the same as that for which the criminal
law has to do sothat it needs a result. But that phrase, though it applies to both cases,
conceals some important differences between them. The criminal law needs a result in the
sense that an accused person, once he or she is accused, must be found guilty or not
guilty. In tort,5 once the action is under way, either the plaintiff or the defendant must
succeed, which means in turn that one or other of the parties (or in some proportion
both) must bear the cost of the loss or damage. But there is the banal difference that with
crime, it is, above all, clear cases that come to court, and with tort it is, above all, hard
cases. With tort, it is the legal characteristic of being a hard case that helps to get it to
court in the first place, but in crime it is the arrest of a supposed criminal. Someone might
say that in an absolutely ideal world all and only guilty criminals would be prosecuted,6
but there could be no world in which it was only successful plaintiffs whose cases were
heard. Tort, by its nature, must be more like a system for the allocation of costs than the
criminal law is, and it follows from this that there can be systems that perform that
function in a different way, such as no fault insurance systems, or, presumably, the
principles of wealth maximization if they were explicitly employed.7
It follows that the senses in which the criminal law and tort have to have an answer are
rather different. In both types of case, of course, there has to be an answer, granted that
the system exists and the parties are in court; but the conditions of being in court are not
the same, and it is also clearer with tort than with crime what a different system might be.
This makes it specially important that there should be a theory of what tort law is (p.492)
supposed to be doing, and this in turn has consequences for its relations to philosophy. If
philosophy can be instructed by the law in the terms offered by the Picturethat is to
say, through seeing what distinctions and considerations prove robust in circumstances
in which we have to have an answerit will need an understanding of what the forces are
that operate on the law and are expressed in it, and, in particular, of what it is for the law
to have to have an answer. Philosophy, then, will not only have to attend to the principles
and goals of tort law; it will also have to understand at a theoretical level why it has those
principles and goals.

IV. The Place of Theory


This theoretical understanding may itself be in part philosophical, and to that extent the
relations between philosophy and law will be, unsurprisingly, reciprocal. But the
understanding required will also be political. In this dimension, besides the special
reasons for needing a theory of what tort law is up to, namely that there are alternative
systems that might perform some of its functions, there is a more general reason which
tort law shares with the criminal law: that both of these operations of law involve the
directed exercise of state power, and it is an aspiration of a liberal society that the
operations of power should be so far as possible transparent, in at least the modest
sense that their supposed legitimation should not rest on systematic misunderstanding.
This modest requirement does not imply that every political practice must be legitimated

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Afterword What Has Philosophy to Learn from Tort Law?


in terms of some theory, still less that all of them must be legitimated in terms of the same
theory. But in a state governed by law the operations of the law represent the most
direct application of power to the individual, and granted further the highly contested
justifications of these operations in modern liberal societies, it is in fact the case that in
such societies the demands of transparency are unlikely to be met without the resources
of a theoretical account. Some of that account, though political, will undoubtedly overlap
with the philosophical contribution and constitute part of a political philosophy.
The call on theory at this point is quite different from the idea expressed by Richard
Wright in his contribution to this volume,8 that rationality requires a theory which offers a
unified, monistic, basis for both everyday morality and the law. I have argued elsewhere9
that the aim of turning everyday morality into a theory, and indeed the idea that it has or
should have a monistic basis, are misguided. The situation with political philosophy is not
entirely the same, and there is more place for theory in it. The (p.493) reasons for this
are special to political philosophy. They are grounded both in the general point that politics
is immediately involved in the application of power,10 and also in a more local point, that
legitimation in the modern liberal state requires on such matters a high level of discursive
explanation. If our aim were to develop a unitary theoretical account of everyday morality
and the law on a monistic basis, these considerations would seem to favor a picture
(though it would not strictly imply it) in which there was a primacy of philosophy over the
law. Philosophical reflection and the theory which, on this view, it generates would be
thought to make the working of the law intelligible, or to prescribe how it might be
improved so as to be more intelligible. On this view, it would be a matter of what
philosophy could do for the law. But on the account I am suggesting, philosophy tries to
learn from the operations of the law, in conjunction with a theory of what the law is up to
a theory partly provided by philosophy itself.

V. In The Microwave
What may philosophy learn from law? The original suggestion was that it might learn the
robustness of some familiar distinctions, judged from the way in which they behave
under pressure, when the law has to have an answer. There are indeed examples that
fit this model. It is important that they are not most likely to show up in connections which
from the point of view of legal theory are the most controversial. Their robustness may
show up, rather, in the fact that they are taken for granted in legal argument, and are not
made the focus of attack by any of the parties. Consider the matter of intent in tort or
criminal law. It may indeed be controversial in a particular connection whether it matters
or not that the agent intended the outcome; and it may, further, be controversial what
would count as showing that he did intend the outcome (or at any rate should be treated
as someone who intended the outcome). But behind all this there will be a steady stream
of assumptions about situations in which it is absolutely clear that he did intend the
outcome, and that it is relevant that he intended the outcome.
Again, even when it is in dispute whether the agent intended this outcome, the dispute
itself represents him as having done some things intentionally. It may be thought that this
is simply uninteresting, since to this (p.494) extent the law is uncontroversially using

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Afterword What Has Philosophy to Learn from Tort Law?


the materials of common sense materials, for instance, that may have been offered in
evidence by citizens who are merely, in these respects, using the resources of common
sense. But that is the point, that a certain store of shared interpretations and concepts
survive scrutiny, every day, under legal process and provide the structure of the laws
operations. They are like containers that can withstand the microwave. On any given
occasion it is the stuff they contain that is the center of interest, and the legal process is
directed to seeing how that stuff will turn out; but it is significant, as the Picture
suggested it was, that there are some familiar materials that serve to hold and present
this stuff, and have a structure that enables them, day in and day out, to withstand
radiation at courtroom intensity.
However, it would be very surprising if philosophy could learn only from the less
controversial parts of legal argument and doctrine, and it is itself significant that some
concepts constantly cause trouble in the law and provide a focus for reinterpretation and
controversysuch as the robust and persistent debate over the superiority of fault
(negligence) or strict liability for accidentally caused harm. As I have already suggested,
this is not only, or primarily, because it provides an opportunity for philosophy to come to
the laws rescue. It may, in a certain sense, give philosophy occasion to come to the
concepts rescue. But if so, this will only be because philosophy can learn something
about the nature of the concepts from their sufferings under the conditions of the law.

VI. Responsibility and the Voluntary


This is notably so with ideas of the voluntary and with notions of responsibility that in
various ways are closely related to it. There are two truths in particular that the law may
help philosophy see about these ideas.11 One, which emerges from the experience of
both the criminal law and the law of torts, is that grave problems arise for the notion of
the voluntary when we seek to deepen it, to move, for instance, from issues of what on a
given occasion an agent sought to bring about and of what state of mind he was
immediately in (and those questions can be hard enough), to questions of how far such
states of mind were normal, or normal to him, and of the extent to which he is responsible
for being a person who would commit the act in that state of mind. Such lines of thought,
as we all know, may rapidly lead into swamps of skepticism, some of them marked by
rusting signs bearing the legend Free Will.
(p.495) The other truth, one that emerges unequivocally from the law of torts, is that
responsibility in the sense of a duty to compensate inevitably runs beyond responsibility
for the outcome in the sense of an intention or even a desire to bring it about. Disputes
about fault and the absence of justification, such as are discussed in the chapters of Tony
Honor and David Owen,12 are concerned to ask whether there must at any rate be a
grain of (something like) the voluntary on which to grow the elaborate crystal of liability;
but no-one, certainly, denies that the crystal may vastly outgrow its seed.
There is a temptation to think that somehow there can be defined a notion of the
voluntary which is both deep and adequate; and that, even if liability in unintentional tort
could, in principle, never be made simply commensurate with what the agent in that
sense voluntarily did, at least the notion would provide a foundation for thinking correctly
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Afterword What Has Philosophy to Learn from Tort Law?


about the ways in which liability must inevitably extend beyond it. The tendency to think in
these terms can figure in the theory of the law itself. One important way in which it is
displayed is by negation, in the idea that notions of the voluntary and of responsibility
closely allied to the voluntary require a deep account, and since no such account is to be
had, the law had better do without such notions altogether.
The tendency to think in this way is, I think, misguided. This is a place at which, as I put it
earlier in this chapter, common sense can be in conspiracy with law or at least with certain
theorists of law to force the issue, in this case to force the psychological and
metaphysical issues beyond the superficial phenomena. Both common sense and the
theory of law have some reason to sustain an idea of the voluntary as a deep notion,
which has, if only we could find it, a deep account. In fact, as I have suggested
elsewhere,13 the idea of the voluntary is an essentially superficial notion, which works on
condition that one does not try to deepen it. This truth, it seems to me, can be recovered
from studying the law in practice, as opposed to the normative account that some
theorists give of it, and examining the evasions, approximations, and misadventures which
the idea of the voluntary regularly encounters there. The pressures that the law applies
can in this case help philosophy to see what common sense morality and philosophys own
arguments on these subjects can help it to overlook, that the concept of the voluntary
adds up to not much more than we are offered by its surface criteria, by which a
voluntary act is, roughly, an intentional aspect of an act done in a normal state of mind.
There is a story to be told of how (p.496) such a concept, limited as it is, has valuable
work to do, in particular in the criminal law. But that story does need to be told; this is
one of the points at which philosophy has to learn not only from what the law does but
from a theory of what the law should be trying to do, theory to which, as I have already
said, philosophy (above all, political philosophy) will have already contributed.
In the matter of liability in tort, the situation is slightly different. Here, once again, the
manifest practice of the law, its struggles with concepts of fault and justification, can
concentrate philosophers minds on the reality of situations in which people can (and
those in which they cannot) be fairly treated as answerable for outcomes which they did
not intend and could not have foreseen. These can remind us of the many ways in which
we do think in terms of outcome responsibility, in Honoris phrase. In this case, it might
be that further political reflection could suggest that this was not the best way for the law
to try to deal with the allocation of costs; it is certainly possible that the struggles of the
law with outcome responsibility could encourage us to think that the law itself might do
better by shifting the emphasis to other schemes. I have no idea whether, or to what
extent, this might turn out to be the case (whereas the argument for the criminal laws
investment in a relatively undemanding concept of the voluntary is, I think, fairly
unproblematic.)
However, even if outcome responsibility were not ultimately the best conceptual
instrument for the law of torts, this would not cancel the enlightenment that philosophy
can gain by looking at the laws dealings with this concept. We would still have come to
see, under the laws extreme conditions, how such a concept works, and what may seem

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Afterword What Has Philosophy to Learn from Tort Law?


reasonable or unreasonable applications of it. We shall have seen a lot to remind us that
the concept is not perfectible, and that it is probably not replaceable by a concept of
moral responsibility that will eliminate responsibility for everything except what is in the
immediate control of the agents will. These remain truths about responsibility, and even if
the law of torts were to decide on the basis of an improved political theory that it would
be to some substantial extent better out of the responsibility business, the experience of
the law, and the considerations special to the law that would be mobilized by the political
theory, would still give help in understanding what we can reasonably expect of an idea of
responsibility in those areas of our lives where such an idea will, unremovably, continue
to have authority.

VII. Conclusion
The Picture with which I started has some truth in it. Importantly, it is not just the
success of our concepts under the extreme conditions of the law (p.497) that has
something to tell philosophy, but also their occasional failure to survive that exposure.
Philosophy will be able to learn the right lessons, however, only if there is an adequate
theory (in part provided by political philosophy itself) about what features of the
concepts, and what special features of the law, have contributed to those successes and
failures. (p.498)
Notes:
(1 ) Some philosophers of Austins tendency may have thought that common sense was
consistent, self-validating, and free of ideology. The present discussion makes no such
assumptions.
(2) J. L. AUSTIN , A Plea for Excuses, in PHILOSOPHICAL PAPERS (1961); Regina v.
Finney, [1874] 12 Cox 625.
(3) Much of my argument will be at a general level, where distinctions between different
legalare as will not be very relevant, but the law of non-intentional torts is what I shall
principally have in mind, and this has some significance in relation to a contrast with the
criminal law. See infra note 5.
(4) This is one of several dimensions (as he recognizes) in which there are limitations to
Michael Moores project of grounding the criminal laws requirements on criminal agency
in a general metaphysics of action: see MICHAEL S. MOORE , ACT AND CRIMETHE
PHILOSOPHY OF ACTION AND ITS IMPLICATIONS FOR CRIMINAL LAW (1993) and
for discussion, the symposium, Act and Crime, 142 U. PA. L. REV. 1455 (1994). On the
particular issue of somnambulistic and other non-standard states, see my The Actus Reus
of Dr. Caligari, supra, at 1661.
(5) I am primarily concerned here with non-intentional torts, see supra, note 1. The
distinction between intentional torts and crime raises further issues.
(6) I am not clear whether anyone takes such an ideal seriously. Anyone who did do so
would have to recognize that it implies constraints on what can count as a crime.

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Afterword What Has Philosophy to Learn from Tort Law?


(7) Richard Posner, in the discussion of his wealth maximization conception in Wealth
Maximization and Tort Law: A Philosophical Inquiry, this volume, draws by implication a
contrast with crime, but I am not clear what it is. The utility (in the sense used by
utilitarians)to a thief of a good that he could not afford to buy has no ethical status or
legitimacy in wealth maximization. It is not a demand backed by an offer price: id. at note
20. On the face of it, this seems to replace the platitude that unjust satisfactions have no
claim in justice with the falsehood that if I cannot afford to bid for an item I can have no
just claim to it.
(8) Richard W. Wright, The Foundations of Legal Responsibility, this volume.
(9) BERNARD WILLIAMS , ETHICS AND THE LIMITS OF PHILOSOPHY (1985).
(10) Under some interpretations, of a broadly Nietzschean type, morality is also deeply
involved in the application of power. I have some sympathy with those interpretations,
and in some connections, such as traditional sexual morality, the claim is manifestly true.
Liberation, to the extent that it may be possible, requires an understanding of those
truths, and hence to some extent a theory of morality itself. But it does not require
turning morality into a theory, and it is likely to be obstructed by the project of doing so;
that project itself typically helps to conceal those truths.
(11 ) I have discussed these matters, with some reference both to modern law and to
ancient Greek law, in BERNARD WILLIAMS , SHAME AND NECESSITY (1993), ch. 3.
(12) Tony Honors, Morality of Tort LawQuestions and Answers, and David Owen,
Philosophical Foundations of Fault in Tort Law, both in this volume.
(13) Bernard Williams, How Free Does the Will Need to Be?, Lindley Lecture at the
University of Kansas (1985), and Bernard Williams, Voluntary Acts and Responsible
Agents, 10 OXFORD J. LEGAL STUD. 1 (1990), both reprinted in BERNARD WILLIAMS,
MAKING SENSE OF HUMANITY (1995).

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Afterword What Has Philosophy to Learn from Tort Law?

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