Category Archives: Deontology and Moral Responsibility

‘False Necessity and the Political Morality of Tort Law’

Sandy Steel, On the Moral Necessity of Tort Law: The Fairness Argument, 41 Oxford Journal of Legal Studies 192 (2021). The language of private law is the language of rights, duties, and obligations. There is a long tradition of thought that interprets that language as the reflection of private law’s foundations, and that therefore reads […]

Kenneth Silver, ‘Markets Within the Limit of Feasibility’

ABSTRACT The ‘limits of markets’ debate broadly concerns the question of when it is (im)permissible to have a market in some good. Markets can be of tremendous benefit to society, but many have felt that certain goods should not be for sale (eg, sex, kidneys, bombs). Their sale is argued to be corrupting, exploitative, or […]

Kristofer Petersen-Overton, ‘Perpetuation as perpetration: Wrongful benefit and responsibility for historical injustice’

ABSTRACT Do those of us living in the present have an obligation to rectify injustices committed by others in the distant past? This article is an attempt to revisit the problem of historical injustice by bringing together recent work on structural injustice in relation to the problem of wrongful benefit. The problem of benefitting from […]

John Bell, ‘Tort Law and the Moral Law: Anglo-French Divergences’

ABSTRACT Tunc’s inaugural lecture ‘Tort Law and the Moral Law’ in 1972 aimed to set out the moral foundations of tort liability in common law and French law. It triggered exchanges in this Journal with Hamson who challenged Tunc’s views. This article explores the context of the debate and then reviews the subsequent developments of […]

Jeremy Waldron, ‘On Duty’

ABSTRACT Duties are normally understood prescriptively, in terms of the particular action a given duty requires. This essay, however, considers an alternative understanding. Duties may be understood by reference to situations for which the duty-bearer takes responsibility. (Not responsibility in a causal sense, but responsibility in a forward-looking sense – like being ‘on duty’). The […]

‘Copyright Infringement and Free Bread’

“Copyright infringement, although often regarded as theft, seems to be a rather strange kind of property infringement. If I steal your car, or your cash, or your furniture, I deprive you of the use of those things and stick you (or your insurance company perhaps) with the cost of replacing those items. But if I […]

William Widen, ‘Autonomous Vehicles, Moral Hazards and the “AV Problem”’

ABSTRACT The autonomous vehicle (‘AV’) industry faces the following ethical question: ‘How do we know when our AV technology is safe enough to deploy at scale?’ The search for an answer to this question is the ‘AV Problem’. This essay examines that question through the lens of the July 15, 2021 filing on Form S-4 […]

Elizabeth Emens, ‘On Trust, Law, and Expecting the Worst’

ABSTRACT This Review examines the theme of trust in response to Jill Hasday’s Intimate Lies and the Law, which won the Scribes Award for the best work of legal scholarship published in 2019. I distinguish two forms of trust: affective and cognitive. Affective trust is emotional trust – a feeling of safety. Cognitive trust is […]

William Hirstein, ‘Neuroscience and Normativity: How Knowledge of the Brain Offers a Deeper Understanding of Moral and Legal Responsibility’

ABSTRACT Neuroscience can relate to ethics and normative issues via the brain’s cognitive control network. This network accomplishes several executive processes, such as planning, task-switching, monitoring, and inhibiting. These processes allow us to increase the accuracy of our perceptions and our memory recall. They also allow us to plan much farther into the future, and […]

Gilbert and Hayashi, ‘Do Good Citizens Need Good Laws? Economics and the Expressive Function’

ABSTRACT We explore how adding prosocial preferences to the canonical precaution model of accidents changes either the efficient damages rule or the harm from accidents. For a utilitarian lawmaker, making the potential injurer sympathetic to the victim of harm has no effect on either outcome. On the other hand, making injurers averse to harming others […]