Afterword What Has Philosophy to Learn from Tort Law?
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.
Oxford Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.
If you think you should have access to this title, please contact your librarian.