A Theory of Strict Liability

8/10/2019 A Theory of Strict Liability

1/6

hilosophical Review

A Theory of Strict Liability by Richard A. EpsteinReview by: Jules L. ColemanThe Philosophical Review, Vol. 92, No. 4 (Oct., 1983), pp. 613-617Published by: Duke University Presson behalf of Philosophical ReviewStable URL: http://www.jstor.org/stable/2184887.

Accessed: 04/12/2014 10:58

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at.http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of

content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms

of scholarship. For more information about JSTOR, please contact [email protected].

.

Duke University Pressand Philosophical Revieware collaborating with JSTOR to digitize, preserve and extend

access to The Philosophical Review.

http://www.jstor.org

This content downloaded from 158.251.6.77 on Thu, 4 Dec 2014 10:58:57 AMAll use subject to JSTOR Terms and Conditions
http://www.jstor.org/action/showPublisher?publisherCode=dukehttp://www.jstor.org/action/showPublisher?publisherCode=philreviewhttp://www.jstor.org/stable/2184887?origin=JSTOR-pdfhttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/stable/2184887?origin=JSTOR-pdfhttp://www.jstor.org/action/showPublisher?publisherCode=philreviewhttp://www.jstor.org/action/showPublisher?publisherCode=duke


2/6

BOOK

REVIEWS

belief that those complexities are so

much excess

baggage which have

nothing

o

do with he relationbetween

fairness nd ustice

and the search

for basic and generallyacceptable premises.

JOSHUA T.

RABINOWITZ

Universityf llinois-Urbana-Champaign

The Philosophical eview,XCII, No.

4

(October

1983)

A THEORY OF STRICT LIABILITY. By

RICHARD

A.

EPSTEIN.

San Fran-

cisco, The Cato Institute,1980. Pp. xv,

141.

The central question before each court trying case in

torts s whether

the costsof the harm sufferedby the plaintiffor victim)

hould remain his

responsibility-lie where theyhave fallen-or be shifted o

the defendant

(who is usually

but

not always the injurer). The rules that

specify

the

conditionswhichmustbe satisfied n order for loss to be shifted rom he

individualwho initially uffers t to someone else are called liability ules.

Tort law consistsof a set of liability ules; tort heory onsists

f efforts

o

explain and (if possible) ustify xisting iability ules.

Liability ules are basically

of

two sorts: faultand strict. n strict iability

the loss may be shifted o the defendant even if the loss is not his fault. n

fault

iability, loss may

be

shifted

o the defendant

only

f

it

is his fault.

Efforts o explain existing ort aw fall nto two general categories: those

which

purport

to

deduce

the

structure

nd substance of tort aw from

moral principles; and those which explain the law of tortsas rooted in

economic theory.Richard Epstein's A Theory fStrict iabilitys

the leading

contemporary tatement f a moral account of the law of

torts.

Until

recently, he dominant strategy

or

defending tort

aw on moral

grounds relied

on

the role

of fault n

determining iability.

ecause

strict

liability mposes sanctions n the absence

of

culpability, he prevailingview

was

that

t

was not morallydefensible.

n

other words,

a

defendant

could

be

liable under strict iability ven

if

he acted under what we would

nor-

mally hink f as exculpating onditions.Fault iability, owever, equiresa

measure

of

wrongfulness n the defendant's behalf, and,

in

the received

view, iability

s

ustly imposed upon the defendant to penalize his fault.

The received view could not be sustained, however, since

the standard

of

fault nvolved n tort aw

does

not

coincide

with

he

conditions f moral

fault.

An individual

s

at fault n torts

provided

his conduct falls

below

that

of

a reasonable

man

of

ordinary prudence. Generally,

t

does

not matter

whether

the

defendant could have done

what

a reasonable

man would

613

This content downloaded from 158.251.6.77 on Thu, 4 Dec 2014 10:58:57 AMAll use subject toJSTOR Terms and Conditions
http://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsp


3/6


4/6

BOOK

REVIEWS

condition of the

subsequent

event's

occurrence.

One

event s

a

proximate

cause of

another f,

given

the

purposes of

the

nquiry, he

antecedent vent

is responsible for the subsequent one. But-forcausation is too weak to

justify

mposing

iability. n

the

law, a

judgment

of

proximate

ausation s

simply

he

assertion

that

responsibility

r

liability s

warranted.

Proximate

causation is

therefore

oo

strong

to

ustify

mposing

iability.

Epstein's task

is to

develop

an

account of

causation that s

both

strong

and

weak

enough

to

ustify

mposing

liability

n

the basis

of it.

Epstein

does not

actually

produce

a theory

of

causation.

Instead,

he

outlines

and

develops

in

some

detail what

he calls

causal

paradigms. In

effect,

hese

are instances in which ordinaryindividuals experience no difficultyn

employing

ausal

language both

meaningfully nd

as

a basis of

responsibil-

ity.

For

example,

sentences

ike A

frightened

and

A

forcedB

assert

causal

connection

between

A

and

B,

and

their

truth

may

ustify

mposing

liability

pon

A

for

B's

harms.

The

problem

with

Epstein's

causal

paradigms

of fright

nd

compulsion,

for

example, is that

they

re not

normatively

eutral. t

is not

the fact hat

A

caused

B

harm

that

ustifies

mposing

iability

pon A; it s

the fact

hat

A frightened r compelled B thatustifies iability. he case for iabilitys

built

into

the claim

that one

individual

frightened

nother or that

one

party

compelled another. Both

involve

wrongful

ways

of

causing

harm

either

by

violating he other's

autonomy

or

by

causing

unwarranted

pain

and

anguish.

The

real task

then s to

show that

causation

by tself s both

necessary

or

liability

nd

sufficient

o

ustify t least

a prima

acie

case.

This

requires a

moral

principle

that

imparts moral

significance

upon

every instance in

which A harmsB-innocently as well as wrongfully. or ifonlywrongful

instancesof harm

ustify

iability, hen

Epstein would have

failed to

pro-

vide a

defense

of

strict

liability, that

is,

liability

without

regard

to

culpability.

Epstein's basic

argument

s

this: in order that

iability

or a

loss be

im-

posed

ustly,

the

ndividual

must be

responsible

for

the oss. An

individual

is

responsiblefor

an

event

f

and

only

f

he caused it. So if A

harms

B,

A

is

responsiblefor

B's

loss, and ifA

is

responsible

for

B's

loss,

then

iability

or

it s ustly mposed on him.Epsteinwrites: Indeed, formostpersons,the

difficult

uestion is often not

whether these causal

assertions

create the

presumption

[of

liability],

ut

whether there

are

in fact

any

means to

distinguish

etween

causation and

responsibility,

o

close

is

the connection

between

what

a man

does and what

he

is

answerable for

p.

25).

To harm

an

individual is to

interferewith a

legitimate

nterest

f

his.

Not

every egitimate

nterest s

protected

by

a

right.

There are numerous

ways

n which

an individual

might

harm

another,

for

example,

in

business

615



5/6

BOOK

REVIEWS

and in love, without

his so doing

raising the question

of

liability.

ecause

there is no general

right not to be harmed, there

is no general right

to

compensationwhenever one suffersharm, and no reason thereforeto

suppose

that causing harm is sufficient

o

establish

ven

a

prima acie

case

for liability.

The argumentfromresponsibility

lso failsbecause

it relies on the claim

that because

causation is necessary

for responsibility

t

is necessary

for

liability. hat Epstein holds such

a view s evidenced

by his solutionto the

good Samaritan

problem. The problem

s whether

n individualwho fails

to come to the aid of another

can

be liable

in

damages

to that

person

for

harms the good Samaritan could have prevented. n general, thecom-

mon law fails to recognize the duty

to be

a

good

Samaritan. Epstein be-

lieves thatwhereas

the economic theory

annot explain the court'sposture

towardthe good

Samaritan,the theory

f

strict

iability an. The reason:

to

failto come to another's aid is

to

fail

to

perform

n

act.

Failure

to act s not

itself

n

action,

nor therefore

s it an event. Only

events can cause other

events.

By

failing

o come

to

the aid

of

others

the

good

Samaritan

does

not

cause

harm: he

simply

does not

prevent

t. Since he does not cause harm,

he fails to satisfy he causal requirement, nd cannot be held liable.

There are

two things wrong

with this argument. First,

f

Epstein

is

correct

that causation is

necessary

for

liability

ecause

it

is

necessary

for

responsibility,

hen the theory

f

strict iability

willbe unable

to

account for

a wide

range

of

cases in which liability

s

normally

mposed. Suppose

it

snows and

I

fail to

clear

the snow

from

he steps eading

to

my

house.

The

mailman delivers

the mail to my house and upon leaving

slips

and

injures

himself.Normally,

would be held

liable

for

the

mailman's

njury.

am

liable, however,not because I harmed the mailman,but because I could

have and should have prevented

his njury.My

failure o shovel s not tself

an action.

Because

it

s

not an action

t cannot cause

anything.

f

the

theory

of strict

iability

elies

on

causation

as a necessary

ondition

of both

respon-

sibility

nd

ust liability,

t will

fail

to account

formuch

of

negligence

aw in

which

iability s imposed

for

omissions.

The lesson

of this xample, however, s

that

he

theory

f

strictiability

s

wrong

to

insist upon causation

as a condition

of

responsibility.

ven if

liability equired responsibility,t would not require causation. An indi-

vidual

may

be responsible

and thus iable

for what he failsto

do as well as

forwhat he

does. The range

of individual

responsibility

s

not restricted

o

the

events

that an individual causes,

and

though

the

events

an individual

causes are

always

n

the sense

of

individual

authorship

his

responsibility,

they may

or

may

not be

things

he

is

morallyresponsible

for.

One can

construct nother

argument

for the

theory

of strict

iability

based

on

Epstein's

conception

of

the principle

of

correctivejustice. pstein

616



6/6

BOOK

REVIEWS

does

not explicitly

make

this

argument

in the book. Still there

is

some

textual upport

for t and

in his

most recentessays

he has taken

to empha-

sizing the role of corrective ustice in the theoryof strict iability.The

argument

ppears

to be

this: fA harms

B,

there

s

an

imbalance,

disequi-

librium,between

them.

Following

Aristotle,

his

s an occasion

to rectify

the imbalance,

to

reestablish

he

equilibrium.

The

basis

of

liability,

n

this

view, s not

the injurer's

responsibility

or causing

harm as

much

as it

s the

correlative

f the victim's

ight

to have

his

losses rectified.

Not

every

oss,

however,

s a departure

from

distribution

hat

ought

to

be preserved;

and not

every

way

of departing

from distribution

s

wrong-

ful. Therefore,not every oss is an unjustifiable ne. Contrary o Epstein,

only

wrongful

r unjustifiable

ains

and

losses n

Aristotle's

heory

must s

a matter

of justice

be

annulled.

Ironically,

the appeal

to

principles

of

correctiveustice

appears

to

provide

a

moral account

of the

fault

principle,

not

f the principle

of

strict

iability.

loss

caused by

the

fault f another

s,

in a suitably

narrow

sense,

a

wrongful

one.

Those

losses

are

distortions

which,

according

to the

principle

of corrective

ustice,

ought

to be

rec-

tified.The

obligation

correlative

to

the right

to have

one's

unjustifiable

losses rectified allson the injurerwho is at fault.Thus, the principleof

correctiveustice

provides

the

beginnings

of

a

moral defense

of fault,

not

of strict iability.

A

Theory

f Strict

iability

s the

only systematic

ttempt

to deduce

the

basic

structure

f tort aw

and the

content

of tortrules

from

principles

f

morality.

t is

a well-written

nd carefully

rgued

essay

that focuses

on

important

uestions

in the

theories

of

responsibility

nd justice.

It is es-

pecially

recommended

for legal philosophers

who have

devoted

far

too

much attention o the criminal aw almostto the exclusionof tort aw.A

Theory

f

Strict

iability

ill

give

the reader

an idea

of

ust

how

philosophi-

cally

fertile

he private

aw

can be.

JULES

L. COLEMAN

University

f

Wisconsin-Milwaukee

ThePhilosophical eview,XCII, No. 4 (October 1983)

UTILITARIANISM

AND

CO-OPERATION.

By

DONALD

H.

REGAN.

New

York,

The

Clarendon

Press,

Oxford

University

Press,

1980. Pp.

xvi,

279.

Anyone interested

n the

battle

among

utilitarianisms

ill

want to

study

this book.

Regan

presents

a tightly

woven

argument

for the

position

that

617

This content downloaded from 158.251.6.77 on Thu, 4 Dec 2014 10:58:57 AMAll bj t t JSTOR T d C diti

A Theory of Strict Liability

Documents

Transcript of A Theory of Strict Liability