Varieties of Consequentialism and Deontology in Theories of Tort Law

Law and Philosophy Ó The Author(s). This article is an open access publication 2024 https://doi.org/10.1007/s10982-024-09513-4 ADAM SLAVNY VARIETIES OF CONSEQUENTIALISM AND DEONTOLOGY IN THEORIES OF TORT LAW (Accepted 1 August 2024) ABSTRACT. An important contribution of Gregory Keating’s Reasonableness and Risk is to mount objections to law and economics whilst articulating an alternative deontological vision of tort law to that offered by corrective justice theorists. In this paper I offer two reservations about Keating’s account. One is that some forms of consequentialism can accommodate at least some aspects of his deontological theory, so we must be careful to distinguish between claims that strike at the heart of consequentialism and those that are only a problem for wealth maximisation. The second is that there are yet other varieties of deontology besides Kantianism and Keating’s alternative to it, and while I accept some of Keating’s claims, I think we should reject others. I will make the case for each of these reservations via discussion of three core features of Keating’s account: the harm/benefit asymmetry, the commitment to objective rather than subjective valuation, and his justification of strict liability. I. INTRODUCTION One of the principal debates within contemporary moral philosophy is that between consequentialists and deontologists. Consequentialism is the view that when determining the permissibility of some act (or rule, law, institution etc.) all that matters is the value of the state of affairs it brings about. Deontology has different manifestations, but all have a commitment to non-consequentialism,1 or the view that the value of the state of affairs brought about by some act (or 1 I will use the term ‘deontology’ as that is the term Keating uses to describe his own theory, although I generally prefer ‘non-consequentialism’ as this is more neutral between the various views that reject consequentialism and can be thought of as broadly deontological. ADAM SLAVNY rule, law, institution etc.) is not the only thing that matters in determining its permissibility.2 Private law theory has been occupied with its own version of this debate. On the consequentialist side are those within the law and economics movement who view tort as a mechanism for maximising wealth. This is a form of consequentialism which has affinity with its cousin theory, utilitarianism.3 On the deontological side are those, especially Kantians, who understand private law as implementing corrective justice, which is concerned exclusively with the correlative rights and duties that connect plaintiff to defendant rather than any effect the law has on overall wealth.4 Consequentialism vs. deontology is not the same debate as wealth maximisation vs. Kantian corrective justice. There are varieties of consequentialism beyond wealth maximisation and varieties of deontology beyond Kantianism. An important contribution of Gregory Keating’s Reasonableness and Risk is to mount robust objections to law and economics whilst articulating an alternative deontological vision of tort law to that offered by the corrective justice theorists. I concur with Keating on many points, including his acceptance of the normative heterogeneity of tort law, his embrace of strict liability, his appeal to fairness and distributive concerns in relation to liability, and his belief that compensation schemes are not opposed to the normative structure of tort law but are in some ways an extension of it. This broad agreement comes with two caveats that I explore in this essay. One is that there are forms of consequentialism that can accommodate at least some aspects of Keating’s deontological account. We must be careful, therefore, to distinguish between claims that strike at the heart of consequentialism and so are crucial to 2 This is a fairly traditional way of drawing the divide. Some consequentialists claim that most deontological commitments can be ‘consequentialized,’ see for example Jamie Dreier, ‘‘In Defense of Consequentializing’’, in Mark Tummons (ed.), Oxford Studies in Normative Ethics, (Oxford: Oxford University Press, 2011, Vol. 1)) pp. 97–119. We will return to the relevance of more sophisticated versions of consequentialism later. 3 Richard Posner argues that wealth maximisation should be distinguished from utilitarianism, and that the former offers a firmer basis for a normative theory of law. See ‘‘Utilitarianism, Economics, and Legal Theory’’, The Journal of Legal Studies 8(1) (1979): pp. 103–40. Though I think both theories are vulnerable to the most important objections, the two should not be conflated. 4 The most prominent examples are Ernest Weinrib and Arthur Ripstein. See Ernest Weinrib, The Idea of Private Law (Cambridge, Mass: Harvard University Press, 1995), Arthur Ripstein, Force and Freedom (Cambridge, Mass: Harvard University Press, 2009) and Arthur Ripstein, Private Wrongs (Cambridge, Mass: Harvard University Press, 2016). VARIETIES OF CONSEQUENTIALISM AND DEONTOLOGY deontological theories of tort law, and those that are a problem only for wealth maximisation. The second is that there are yet other varieties of deontology besides Kantianism and Keating’s alternative to it, and while I accept some of Keating’s claims, I think we should reject others. I will make the case for each of these reservations via discussion of three core features of Keating’s account: the harm/ benefit asymmetry, the commitment to objective rather than subjective valuation, and his justification of strict liability. II. THE HARM/BENEFIT ASYMMETRY Keating argues that according to cost-benefit analysis, a mainstay of the economic approach, ‘‘harm has no special significance, and its avoidance has no special priority. Harm is just one possible cost in a calculus of cost and benefit, and costs and benefits are minuses and plusses on the same scale.’’5 This symmetry between harms and benefits ‘‘is at odds with our ordinary intuitions and our law. In both morality and law, our obligations to avoid harming others are stronger than our obligations to benefit them.’’6 As a result, costbenefit analysis fails to capture some of the most deeply ingrained aspects of our legal and moral practices. By contrast, Keating defends an asymmetrical view of harms and benefits. This asymmetry is tightly connected to his conceptualisation of what harms and benefits are: ‘‘Harms impair essential conditions of human agency. Physical harms–death, disability, disease, and the like–rob us of normal and foundational powers of action. Physical harm comes close to being unconditionally bad.’’7 The power of benefits to enhance lives, on the other hand, is ‘‘much more contingent than the badness of physical harm.’’8 Whether some benefit enhances a person’s life depends on that person’s plans and projects. For example, mathematical brilliance is of great use to one dedicated to a career in the sciences, but little use to an aspir (...truncated)